author: ROTHENBERG, C.J.

text:
    Lukace KENDLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-243
    District Court of Appeal of Florida, Third District.
    Opinion filed August 15, 2018
    Carlos J. Martinez, Public Defender, and Andrew Stanton and Harvey J. Sepler, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LINDSEY, J.J.
   ROTHENBERG, C.J.

Lukace Kendle ("Kendle") appeals from a final judgment of conviction and sentence for second-degree murder and attempted second-degree murder. Kendle contends that the trial court failed to conduct a sufficient Faretta inquiry, and that the trial court and the State made inappropriate comments on his exercise of his fundamental rights to remain silent and to represent himself. Upon review of the lengthy record in this case, including the multiple Faretta inquiries conducted by the trial court, we reject both arguments and, therefore, affirm.

BACKGROUND

Kendle was charged with shooting two men in the parking lot of Club Lexx a/k/a Club Ro-lexx, a strip club where Kendle was employed as a security guard on, or about, June 1, 2012. Kijuan Lamar Byrd died from his injuries. Michael Smathers survived, but is paralyzed from the waist down. At all relevant times, Kendle claimed that the shooting was justified under Florida's Stand Your Ground Law, section 776.032, Florida Statutes (2011).

At the outset, Kendle was represented by privately retained counsel, Simon Steckel. At Kendle's request, however, attorney Steckel was allowed to withdraw on April 23, 2013. Thereafter, Kendle's family notified Kendle and the trial court that they wished to retain Abe Bailey to represent Kendle. Although Kendle expressed a desire to represent himself, he agreed to meet with Mr. Bailey. However, two days later, another attorney, Carlos Gonzalez, entered an appearance on Kendle's behalf. A few months later, on June 21, 2013, during a status conference, Kendle indicated that he wished to discharge Mr. Gonzalez and represent himself.

At the hearing, Mr. Gonzalez raised concerns regarding Kendle's competency. Kendle objected to being evaluated for competency, stated that he would not participate in any competency evaluations, and advised the trial court that he had an associate's degree in electronics engineering and, as such, he was more than capable of representing himself. Nevertheless, the trial court ordered that Kendle be evaluated. Kendle refused to cooperate, and his refusal delayed the proceedings for several months.

On November 20, 2013, the trial court conducted a hearing to address Kendle's competency. At the hearing, the trial court reviewed the evaluating doctors' reports. Specifically, the trial court noted that Dr. Ralph Richardson was unable to render an opinion because Kendle had refused to participate in the evaluation, and that Dr. Rebecca Diaz Quintana had opined that even though Kendle had refused to cooperate, in her opinion, Kendle was incompetent to proceed. At the hearing, the trial court explained to Kendle that in order to make an informed finding as to his competency and Kendle's ability to represent himself, Kendle would need to cooperate with the two doctors so that he could be properly evaluated. Kendle agreed to cooperate and to undergo the competency evaluations.

At a status conference held on December 5, 2013, Kendle's counsel informed the trial court that Dr. Richardson had conducted a lengthy interview with Kendle and was now prepared to find that Kendle was competent. However, before Kendle could be evaluated by Dr. Quintana, he began threatening correctional officers, and as a result, he was moved to a restricted section of the jail and Dr. Quintana was not permitted to see him. Although the trial court expressed concerns that Kendle might be attempting to manipulate the system, the trial court adjudicated Kendle incompetent on December 12, 2013.

After a period of hospitalization, and without being medicated, Kendle was found competent. Thereafter, the trial court conducted multiple Faretta inquiries during various stages of the proceedings. After each inquiry, the trial court found that Kendle was competent to proceed and granted Kendle's request to represent himself. Despite Kendle's objection, the trial court appointed stand-by counsel and stand-by counsel was present during all phases of the proceedings. Kendle, however, never sought guidance from stand-by counsel despite the trial court's constant reminders of his presence and willingness to assist. At the conclusion of the trial, the jury returned a verdict of guilty as to both counts. Kendle was sentenced to life imprisonment with a twenty-five-year minimum mandatory term for the second-degree murder of Mr. Byrd, and thirty years with a twenty-five-year minimum mandatory term for the attempted second-degree murder of Mr. Smathers.

STANDARD OF REVIEW

A trial court's decision regarding the withdrawal or discharge of counsel is reviewed for an abuse of discretion. Guardado v. State, 965 So.2d 108, 113 (Fla. 2007). Where a defendant seeks to represent himself or herself, the trial court's decision turns on "an assessment of demeanor and credibility." Morgan v. State, 991 So.2d 984, 987 (Fla. 4th DCA 2008) (quoting Potts v. State, 718 So.2d 757, 759 (Fla. 1998) ). A trial court's decision regarding self-representation is entitled to great weight and must be affirmed on review if supported by competent substantial evidence. Potts, 718 So.2d at 759.

Unpreserved challenges regarding comments made during voir dire , on the other hand, are reviewed for fundamental error. Bell v. State, 108 So.3d 639, 651 (Fla. 2013). Kendle's challenges to the comments made by the State and the trial court were not preserved. Thus, the proper standard of review is for fundamental error.

ANALYSIS

I. The Faretta Inquiries

Kendle contends that the trial court failed to make sufficient inquiries, as required by Faretta, before permitting him to represent himself. We disagree. The record clearly reflects that the trial court diligently and painstakingly colloquied Kendle regarding his demand to represent himself on numerous occasions and at every critical stage of the proceedings. The record also clearly reflects that Kendle knowingly, intelligently, and freely waived his right to counsel.

In Faretta, the United States Supreme Court held that an accused has the right to represent himself so long as his waiver of his right to counsel is knowingly and intelligently made. In other words, the defendant must be aware of what he or she is doing, and his or her choice must be made with eyes open. Id. at 835, 95 S.Ct. 2525 (citing Adams v. United States, ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1943) ). The Florida Supreme Court has adopted the inquiry articulated by the Faretta Court in the Amendment to Florida Rule of Criminal Procedure 3.111(d) (2)-(3), App. B, 719 So.2d 873 (Fla. 1998), which states in part:

(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused's comprehension of that offer and the accused's capacity to make a knowing and intelligent waiver. Before determining whether the waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of self-representation.

If the trial court determines that the defendant has made a knowing and intelligent waiver of his right to counsel, then the trial court cannot deny the defendant's unequivocal request to represent himself or herself, regardless of the defendant's lack of legal skills or the complexity of the case. Rule 3.111(d)(3). The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right , not the competence to represent himself. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). In other words, the defendant need not possess the technical legal knowledge of an attorney in order to be permitted to proceed pro se. Hill v. State, 688 So.2d 901, 905 (Fla. 1996).

A defendant's demand for self-representation places the trial court in a quandary, for the court must balance seemingly conflicting fundamental rights - i.e., the court must weigh the right of self-representation against the rights to counsel and to a fair trial. Potts, 718 So.2d at 759. In order to achieve this balance, the model colloquy published by the Florida Supreme Court suggests that the trial court: (1) inquire as to the defendant's age, education, his ability to read and write, any mental or physical conditions, and whether anyone has threatened the defendant concerning the decision to proceed without counsel; (2) advise the defendant that a lawyer can assist him in calling witnesses and presenting evidence, can ensure that accurate jury instructions are given, and preserve errors for appeal; and (3) warn the defendant that he will not receive any special treatment and will be limited by the resources available to him while in custody. Smith v. State, 956 So.2d 1288, 1289 (Fla. 4th DCA 2007) (quoting In re Amendment to Fla. R. Crim. P. 3.111(d) (2)-(3), 719 So.2d 873, 876-77 (Fla. 1998) ).

The trial court, however, is not required to follow the model colloquy word for word. See Smith, 956 So.2d at 1290. Instead, it is sufficient for the defendant to be alerted to the general difficulties of navigating the legal system. Hill, 688 So.2d at 905. As the Florida Supreme Court noted in Aguirre-Jarquin v. State, 9 So.3d 593, 602 (Fla. 2009) and Porter v. State, 788 So.2d 917, 927 (Fla. 2001), "the essence of the colloquy is to ensure the defendant makes a knowing and voluntary waiver of counsel."

Importantly, the focus is not on the "specific advice rendered by the trial court - for there are no 'magic words' under Faretta- but rather, on the defendant's general understanding of his or her rights." Potts, 718 So.2d at 760. A review of the proceedings in this case, as summarized below, demonstrates that the trial court conducted multiple inquiries that complied with both rule 3.110(d) and Faretta.

A. The April 4, 2014 Faretta Inquiry

After determining that Kendle had been restored to competency, and upon Kendle's reiteration of his desire to represent himself, the trial court conducted the following Faretta inquiry:

THE COURT: What are your complaints with your defense counsel?
DEFENDANT: First of all my defense counsel has been - I asked him to submit a demand in June of last year, and if he had done it in June of last year, I would have been in trial over ten months ago. This way I do believe I can do it myself.
THE COURT: Do you understand that there [were] some things that your attorney needed to do in order to be ready for trial?
DEFENDANT: Yes.
THE COURT: You have a right to have a lawyer, you know that?
DEFENDANT: I also have a right to [a] Speedy Trial Demand and I have a right to represent myself.
THE COURT: I understand that. Do you understand [that] he is a paid lawyer, and if you cannot afford a lawyer I can appoint one for you?
DEFENDANT: I would like to represent myself.
THE COURT: That is not my question. My question is, do you understand that I have the ability to appoint a lawyer for you?
DEFENDANT: Yes, ma'am.
THE COURT: Do you want me to appoint a lawyer for you?
DEFENDANT: No, ma'am.
THE COURT: Let me explain something to you. Your lawyer can help. I have to go through this. If you don't want to go through it right now, I will reset this on another day.
DEFENDANT: I understand you completely.
THE COURT: A lawyer presents legal knowledge and experience. In reference to having counsel represent you, he has the ability to identify objections and secure favorable evidence on your behalf [and] to be present at the time of trial. Assist in obtaining pre-trial release. The lawyer's legal knowledge and expertise may favorably affect the discovery and may obtain skillful use of discovery provided. A lawyer can protect your constitutional rights and make sure they are protected and take the proper steps to address them. A lawyer will make sure [that] the speedy trial rules and statute of limitations are enforced. A lawyer can obtain favorable evidence and introduce them [sic] in trial on your behalf. A lawyer can file the appropriate motions to exclude evidence, to suppress evidence and to dismiss or reduce the charges against you. Do you understand that is what a lawyer can do?
DEFENDANT : Yes, ma'am.
THE COURT : A lawyer can help you decide whether to enter a guilty plea. A lawyer can advise as to whether entering into the plea is in your best interest. A lawyer has experience in helping you work with the State and even bargain for different terms. A lawyer is advanced to the [disadvantages] as to what you say to the Court during plea, hearings, sentencing[,] or trial. Do you understand you will not get special consideration from the Court just because you want to represent yourself?
DEFENDANT : Yes, ma'am.
THE COURT : Do you understand how necessary a lawyer is and how he or she could help you?
DEFENDANT : Yes, ma'am.
THE COURT : You are currently charged with - let me see the Information. You are currently charge[d] with one count of 2nd degree murder. That is a life felony. You are looking at life in prison. And one count of attempted second degree murder. That is a 1st degree felony punishable by up to 30 years. Have you received a copy of the charges and have you had a chance to review them?
DEFENDANT : Yes, ma'am.
THE COURT : Do you understand the serious nature of the charges against you?
DEFENDANT : Yes, ma'am.
THE COURT: The maximum sentence that can be imposed against you is life; do you understand that?
DEFENDANT: Yes, ma'am.
THE COURT: If you are found guilty, you may have a permanent criminal record and you may never get out of prison again; do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: If you are not a citizen of the United State[s], you could be deported from this country; do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: Do you understand [what] the consequences of entering a plea would be?
DEFENDANT: Yes, ma'am.
THE COURT: Do you have questions concerning the consequences of being found guilty or entering into a plea?
DEFENDANT: I understand completely.
THE COURT: Let me tell you some of the ways a lawyer can help during the course of the trial. A lawyer has experience and knowledge of the entire process. Your lawyer will argue for you during the trial and present legal argument for your defense before a jury. A lawyer's knowledge and experience may give a lawyer an advantage during the [jury] selection process on your behalf. A lawyer can call witnesses for you, question witnesses against you and present evidence on your behalf. A lawyer can advise you on whether you should testify and the consequence of that decision and what you have the right not to say; do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: A lawyer that studies the rules of evidence knows whatever exhibits cannot come into trial. A lawyer can make objections during trial and try to keep certain testimony and evidence being introduced at trial from coming in. Jury qualifications and a lawyer's knowledge may enhance the [jury] selection process on your behalf. A lawyer may provide assistance in charging the jury and get the complete jury members' information and present effective closing arguments on your behalf and [object to] improper argument by the prosecutors; do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: A lawyer assures any errors are properly preserved for appellate review later by a higher court; do you understand?
DEFENDANT: Yes.
THE COURT: If you are convicted, a lawyer may prepare for sentencing and make sure favorable facts about you are brought to my attention for sentencing. A lawyer may make sure the Court is aware of laws available for a favorable disposition. A lawyer can make sure a proper Pre-sentence Investigation Report is prepared on your behalf. A lawyer may bring witnesses to court to testify on your behalf at sentencing. A lawyer may make sure [that] any sentence is lawfully imposed. An attorney's legal knowledge and experience may be useful in fighting and seeking release on bail pending appeal; do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: There are certain dangers and disadvantages in self-representation, as it is almost [always] unwise to represent yourself in court. Let me tell you a few of the disadvantage[s] of representing yourself in court. Do you understand that you will not get any special treatment from the Court just because you are representing yourself?
DEFENDANT: Yes, ma'am.
THE COURT: Do you understand you will not be entitled to a continuance simply because you wish to represent yourself?
DEFENDANT: Yes, ma'am.
THE COURT: You will also be limited to the legal resources available to you while you are in custody; do you understand?
DEFENDANT: Yes.
THE COURT: You will not be entitled to any additional library privileges just because you are representing yourself.
DEFENDANT: No.
THE COURT: A lawyer would have fewer restrictions preserving your defense or investigating your case; do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: You are not required to possess [the] legal knowledge or skills of an attorney. [But] [y]ou will be required to abide by the Rules of Criminal Law and Courtroom Procedure; do you understand that?
DEFENDANT: Yes, ma'am.
THE COURT: That took lawyers years to learn and abide by. If you demonstrate failure to abide by these rules, I may terminate your self-representation; do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: Do you understand if you are disruptive in the courtroom, the Court can terminate [your] self-representation and remove you from the courtroom and, therefore, the trial continues without your presence; do you understand that?
DEFENDANT: Yes, ma'am - without my presence?
THE COURT: Yes, sir. Do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: Do you understand your access to the assistant state attorney prosecuting you will be severely reduced compared to a lawyer who could easily pick up the phone and call the attorney?
DEFENDANT: Yes, ma'am.
THE COURT: Additionally, the State will not go easier on you and give you special treatment because you are representing yourself. The [State] will present the case against you as if you were an experienced lawyer; do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: If you are convicted you cannot claim on appeal [your] lack of legal knowledge or skills. In other words, you cannot [receive] ineffective [assistance] of counsel if you represent yourself; do you understand?
DEFENDANT: Yes, ma'am.
THE COURT: Do you understand these advantages and disadvantages of representing yourself?
DEFENDANT: Yes, ma'am.
THE COURT: Do you have any questions on the dangers and disadvantages?
DEFENDANT: No, ma'am.
THE COURT: During the time you have been represented by counsel in this case, did you discuss this case with your attorney?
DEFENDANT: Yes, ma'am.
THE COURT: I need to ask you a few questions to determine if you are competent to make a knowing and intelligent waiver of counsel. How old are you?
DEFENDANT: I'm 27.
THE COURT: Can you read?
DEFENDANT: Yes, ma'am.
THE COURT: Can you write?
DEFENDANT: Yes, ma'am.
THE COURT: Do you have any difficulty in understanding English?
DEFENDANT: No.
THE COURT: How many years in school did you complete?
DEFENDANT: Almost an associate's degree in electronic [engineering].
THE COURT: Are you currently under the influence of any alcohol or drugs?
DEFENDANT: No, ma'am.
THE COURT: Have you been diagnosed or treated for mental illness?
DEFENDANT: No.
THE COURT : May I see the evaluations? Have you seen the evaluations?
DEFENDANT : No, ma'am.
THE COURT: Would you like a moment to review them?
DEFENDANT: No, ma'am.
THE COURT: Dr. Quintana and [Dr.] Ruiz opine [that] he is suffering from substances [and there is a] likelihood [that] he is suffering from the mental illness bipolar or psychotic disorder. And Dr. Richardson could not obtain enough information to make that finding.
MR. GONZALEZ: Is that the latest?
THE COURT: I will review them when I make my finding. Do you have any physical problems that would hinder your self-representation in this case like hearing, speech or poor eyesight?
DEFENDANT: No, ma'am.
THE COURT: Has anyone told you not to use a lawyer?
DEFENDANT: No, ma'am.
THE COURT: Has anyone threatened you not to hire a lawyer or accept a lawyer appointed by the Court?
DEFENDANT: No, ma'am?
THE COURT: Do you understand a lawyer appointed by the Court will represent you for free?
DEFENDANT: Yes, ma'am.
THE COURT: You are entitled to fire your attorney and I can certainly appoint a different lawyer for you; do you understand?
DEFENDANT: Yes, I understand.
THE COURT: Do you wish for me to do that at this time?
DEFENDANT: No ma'am.
THE COURT: Have you ever represented yourself in a trial?
DEFENDANT: No, ma'am.
THE COURT: Do you have any questions about having a lawyer appointed to defend you?
DEFENDANT: No, ma'am.
THE COURT: Having been advised of your right to counsel and the advantages of having counsel and the disadvantages and the dangers without counsel, knowing those consequence[s] in the event of a conviction, are you certain you do not want me to appoint a lawyer for you?
DEFENDANT: Yes, ma'am.
THE COURT: If I do allow you to represent yourself and you request it, I could have the assistant public defender act as standby counsel. He or she would be available to you if you have any question[s] during the course of these proceedings. Would you like standby counsel?
DEFENDANT: No ma'am.

In order to further review the evaluations and make an informed decision, the trial court rescheduled the matter. Thereafter, Kendle withdrew his request to represent himself, and the trial court ordered additional competency evaluations. In the interim, the trial court honored Kendle's insistence that his privately retained counsel be discharged, and appointed Jorge Viera from the Office of Regional Counsel to represent Kendle. On November 13, 2014, the trial court concluded that Kendle was incompetent to proceed, but a few months later, on March 3, 2015, Kendle was again restored to competency.

B. The March 6, 2015 Faretta Inquiry

Having found that Kendle was competent to proceed, the trial court conducted another Faretta inquiry on March 6, 2015. The colloquy was very similar to that which took place on April 4, 2014. The trial court again inquired as to Kendle's background, his education, and lack of legal training. The trial court again confirmed that Kendle had no prior history of mental illness, was not currently taking any medication, and was not under the influence of drugs or alcohol. The trial court also confirmed that Kendle had not been threatened, or advised against the use of an attorney. Among other things, the trial court went over the seriousness of the charges, the potential penalties, and the consequences of an adjudication of guilt. The trial court also reviewed with Kendle the advantages of having an attorney, and the disadvantages of self-representation.

Specifically, the trial court emphasized that a lawyer could be of assistance with witness preparation, direct-examination, cross-examination, raising objections, introducing evidence, as well as providing counsel during plea hearings and/or sentencing hearings. Upon questioning by the trial court, Kendle also confirmed his independent knowledge and understanding of the various different types of witnesses, i.e., fact, character, and expert witnesses.

The trial court also reminded Kendle that counsel was available to him free of charge. Just as with the prior Faretta inquiry, Kendle confirmed his understanding following each question posed by the trial court.

Thereafter, the trial court, with the assistance of the Assistant State Attorney, explained to Kendle the possibility that he could receive a sentence of life imprisonment with minimum mandatory penalties.

THE COURT: Okay. Go over those minimum mandatories.
MS. PEARSON: Well, because of the fact that a firearm was used and discharged, and caused great bodily injury as well as death in this case, he's facing the 25-year minimum mandatory to life on each of those counts.
THE COURT: Okay. And she just wanted to put on the record [the] minimum mandatory sentences that you would be facing in the event that you are found guilty. Do you understand that?
DEFENDANT: Yes, ma'am.
MS. PEARSON: On each count.
THE COURT: And understanding that, you still wish to proceed -
DEFENDANT: Yes, ma'am.

Kendle again reiterated his request to proceed pro se ; the trial court concluded that Kendle had made a knowing and intelligent waiver of his right to counsel; and after Kendle expressed his desire to discharge attorney Viera, the trial court, over Kendle's objection, appointed new stand-by counsel.

C. The May 5, 2015 Faretta Inquiry

On May 5, 2015, the trial court conducted yet another Faretta inquiry during a hearing on the State's motion in limine. The colloquy was similar to the ones that took place on April 4, 2014 and March 6, 2015. Specifically, the trial court reiterated that Kendle had the right to an appointed lawyer free of charge. The trial court reminded Kendle that he had no legal training, that he was unfamiliar with the rules of evidence, and that a lawyer with knowledge of case law and the rules of evidence would be beneficial in arguing his "stand your ground" motion, subpoenaing witnesses, and preserving errors for purposes of appeal. Kendle responded that he understood everything that the trial court had explained, but he still wanted to exercise his constitutional right to represent himself.

Following the colloquy, in the abundance of caution, and because the trial court was concerned that competency evaluations had become stale over time, the trial court ordered new evaluations. The trial court advised Kendle that any failure to cooperate with the evaluations would result in a further delay of the proceedings. The record reflects that Kendle cooperated with the competency evaluations, and on May 22, 2015, the trial court found that Kendle was competent to proceed.

D. The June 5, 2015 and August 13, 2015 Faretta Inquiries

The trial court conducted another lengthy and detailed Faretta inquiry during a June 5, 2015 status conference. Similar to the earlier inquires, the trial court reviewed Kendle's background, explained the advantages of having counsel, and the disadvantages of self-representation. At the conclusion of the colloquy, the trial court concluded that Kendle had again made a knowing, intelligent, and voluntary waiver of his right to counsel.

The trial court conducted another Faretta hearing a few weeks before trial, on August 13, 2015. The inquiry followed the same format that the trial court had used on prior occasions. Among other things, the trial court reiterated the charges against Kendle, the seriousness of the offenses, and the potential sentences. The trial court also reminded Kendle that he would not be receiving any special treatment simply because he was representing himself. During this inquiry, the trial court questioned Kendle as to why he thought that he could do a better job than a lawyer. In response, Kendle indicated that he felt as though he was better suited to cross-examine witnesses because he was actually present during the events in question. Once again, the trial court concluded that Kendle had made a knowing, intelligent, and voluntary waiver of his right to counsel.

E. The August 17, 2015 Faretta Inquiry

On August 17, 2015, following an administrative transfer of the case to another judge, the trial judge introduced herself;

appointed new stand-by counsel, Abe Bailey; and conducted another detailed Faretta inquiry. The trial court colloquied Kendle on his background, his lack of legal training, the charges, the rules of evidence, the rules of criminal procedure, preserving objections, jury selection, the possible penalties that could be imposed, and the role of stand-by counsel. The trial court also discussed with Kendle the advantages of having an attorney, and strongly urged Kendle to rethink his position. During the inquiry, Kendle noted that the trial court's questions went further than what Faretta requires. Specifically, he stated "I've taken four or five Faretta [h]earings and none of these questions have ever been on a Faretta." In response, the trial court explained that it conducts very thorough inquires. In granting Kendle's request for self-representation, the trial court noted that Kendle was very bright and clearly articulate.

F. The August 31, 2015 Faretta Inquiry

On August 31, 2015, the first day of trial, the trial court conducted yet another Faretta inquiry. During the inquiry, the trial judge colloquied Kendle as it had done in the past, confirming that he was not under the influence of drugs, and that he understood the charges against him, as well as the potential penalties. The trial court reiterated to Kendle again its concern that Kendle had no legal education and that he was unfamiliar with, among other things, the Florida Rules of Evidence, the Florida Rules of Criminal Procedure, the jury selection process, and raising and preserving objections. Kendle responded that he understood all that the trial court had explained to him, but that he still wished to represent himself. The trial court concluded that Kendle was knowingly and voluntarily waiving his right to counsel, reminded Kendle that stand-by counsel was present in the courtroom, and informed Kendle that the court would renew the offer of assistance of counsel with Kendle at each critical stage of the proceedings. Kendle represented himself during the entire trial, and he continued to refuse the assistance of stand-by counsel throughout the proceedings. The jury returned a verdict of guilty on both counts, as charged.

A review of the numerous Faretta inquiries, and the record as a whole, reflects that Kendle is an intelligent and articulate young man. As the trial court noted during post trial proceedings:

...I'd like to point out that during the course of this trial, and I am saying this for the record, on a number of occasions, Mr. Kendle remembered off the top of his head, without any piece of paper in front of him on the table, which paragraph in the motion in limine that we had addressed that [sic] he was talking about.
And, in addition, Mr. Kendle, without the assistance of [counsel] did a cross-examination of the one inconsistency that was presented by one witness ... it was a lady that [worked there] as a waitress [but] she was only there on the night of the shooting to go to the barbeque stand. And she said she was there at 1 o'clock and [Mr. Kendle] said this incident was at 10:45, not 1 o'clock. On his own, he did the impeachment.
He represented himself and he knew what he was doing. And the Court is satisfied with all of [its] colloquies.

The record also reflects that the trial court complied with the requirements of Faretta and rule 3.111(d), and that Kendle knowingly, intelligently, and freely waived his right to be represented by counsel and exercised his right to represent himself. At all times during the proceedings, Kendle reaffirmed his understanding of his right to counsel after being carefully colloquied regarding the difficulties of self-representation and the valuable services provided by counsel. Kendle knew and understood the severity of the charges, and he insisted that his constitutional right to self-representation be honored. Because the trial court's determination that Kendle made a knowing, intelligent, and voluntary waiver of his right to counsel is supported by competent substantial evidence, we affirm on the issue of Kendle's self-representation.

II. Comments by the Trial Court and the State

Kendle contends that during voir dire , the trial court improperly called attention to the possibility that Kendle might exercise his right to remain silent and/or to not put on a defense, and that both the State and the trial court improperly commented on his exercise of his constitutional right to represent himself.

We address each argument in turn.

A. Comments Regarding Kendle's Right to Remain Silent

It is well settled that a defendant has the constitutional right to not testify against himself in a criminal proceeding. Brown v. State, 771 So.2d 603, 604 (Fla. 4th DCA 2000) (citing U.S. CONST. amend, V). This constitutional principle is incorporated in Florida Rule of Criminal Procedure 3.250, which prohibits a prosecuting attorney from commenting on a defendant's failure to testify. Rodriguez v. State, 753 So.2d 29, 37 (Fla. 2000). Thus, "any comment on, or which is fairly susceptible of being interpreted as referring to, a defendant's failure to testify is error and is strongly discouraged." State v. Marshall, 476 So.2d 150, 153 (Fla. 1985). Such erroneous comments do not, however, require an automatic reversal. State v. DiGuilio, 491 So.2d 1129, 1137 (Fla. 1986).

In this case, during voir dire , the trial court advised the jury of the law regarding Kendle's right to remain silent during the trial, and provided prospective jurors with a cautionary statement that if Kendle chose not to testify, they could not hold it against him. Specifically, the trial court advised the jury as follows:

THE COURT: Okay. Also, in every criminal case the burden of proof is on the State of Florida and it never shifts to the defendant. Does everyone understand that?
PROSPECTIVE JURY: Yes.
THE COURT: Okay. So, it's the State of Florida that must prove the charges against the defendant beyond a reasonable doubt. They must present the evidence. So, the defendant may choose to participate in this trial by questioning or he may choose to not participate. He has no burden to prove anything to you. Do you understand that?
PROSPECTIVE JURY: Yes.
THE COURT: The burden is on the State of Florida. So, hand-in-hand with that goes the fact that he also has no burden to testify, present evidence, [or] tell his side of the story. He has every right to remain silent and just sit there at that table. Does everyone understand that?
PROSPECTIVE JURY: Yes.

After the jury had been sworn, the trial court provided the following cautionary instruction:

From the exercise of a defendant's right to remain silent, you may not draw any inference of guilt or hold it against him in any way. The fact that a defendant does not take the witness stand must not influence your verdict or your discussions in any manner whatsoever.

At no time during these discussions did the trial court demean or devalue Kendle's right to not testify. We find that the comments and cautionary instructions given in this case, not only fall within the realm of what is permitted, but are also necessary. Without such cautionary instructions, the jurors would be free to infer or speculate that a defendant who does not testify must surely be guilty, otherwise he would take the stand in his own behalf. Andrews v. State, 443 So.2d 78, 84 (Fla. 1983). The cautionary no-inference instruction's "very purpose is to remove from the jury's deliberations any influence of unspoken adverse inferences." Id. (quoting Lakeside v. Oregon, 435 U.S. 333, 339, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978) ). To the extent that Kendle argues that these comments impermissibly referred to his right to remain silent, we reject this claim.

B. Comments Regarding Kendle's Right to Self-Representation

Kendle contends that the trial court and the State infringed upon and undermined his right to represent himself by making inappropriate references to his election to represent himself in the presence of the jury. The comments made by the State are as follows:

So, in this particular case, as the judge has mentioned, the defendant has chosen to represent himself. He's what is called a pro se defendant. The Constitution allows all of us that right and [it] is something you can choose to do, if you found yourself to be in a situation. Now, the judge is going to hold him to the same standards as an attorney. Okay. And he's going to be held to the same standard as Mr. Winston and myself.
So, knowing this, is anyone going to feel sympathy towards him because of the fact that he's not a trained attorney and is being held to the same standard as we are.
* * *
Knowing that he's pro se, we still have to prove our case beyond a reasonable doubt. Is anyone going to hold us to a higher standard, sort of like, so we need to level the playing field because of the fact that he's pro se and you're now against an attorney, so you know, this is different?
* * *
So, knowing that, knowing all of this, is anyone going to hold us to a higher standard and sort of level the playing field by holding us to a higher standard?

Kendle argues that these questions and comments impermissibly referred to his right to represent himself. However, Kendle failed to object to this line of questioning by the State and, therefore, Kendle's challenges to these comments were not preserved for appeal and he must demonstrate fundamental error. No such error exists here.

Counsel must have an opportunity to ascertain latent or concealed prejudgments or predispositions by prospective jurors. Stano v. State, 473 So.2d 1282, 1285 (Fla. 1985) (quoting Jones v. State, 378 So.2d 797, 798 (Fla. 1st DCA 1979) ). A juror's competency is determined by identifying any predispositions, bias, or prejudice, and determining whether that juror can "lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court." Davis v. State, 461 So.2d 67, 70 (Fla. 1984) (quoting Lusk v. State, 446 So.2d 1038, 1041 (Fla. 1984) ). Here, the prosecutor merely inquired as to whether the jurors would be able to evaluate the evidence, follow the law, and apply the correct burden of proof, despite the fact that Kendle was representing himself. Thus, the State's inquiry presents no error, let alone fundamental error.

Kendle also takes issue with the trial court's following discussion with Kendle in front of the jury, which Kendle claims undermined his right to self-representation:

MR. KENDLE: Your Honor, I was gonna make a -
THE COURT: Excuse me. Just one moment. Okay. Is there an objection that you're raising, because there [are] no speaking objections allowed? Would you like to wait and discuss with me?
MR. KENDLE: No. Remember the request I suggested? The request I said I was going to make the last time I was here about the jury?
THE COURT: Let's do this. Okay. Right now, Mr. Kendle -
MR. KENDLE: I was going to make the request in front of the jury, not in front of you. That's what I was going to say. But if you say we have to wait until the jury is gone, then there's no point.
THE COURT: See, here's the situation. The way that the jury selection works, okay, which is, again, why I strongly urged you to have a lawyer.
MR. KENDLE: And I'm not.
THE COURT: I get it. [This] is not your time to ask questions, but your time to ask questions, if you choose to, will be this afternoon.

This exchange took place while the trial judge was addressing the prospective jurors. Speaking out of turn, Kendle interrupted and asked to address the jury and make a request of the jury. Although a defendant has a constitutional right to self-representation at trial, Faretta, 422 U.S. at 806, 95 S.Ct. 2525, "[t]he right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license to not comply with the relevant rules of procedural and substantive law." Id. (quoting Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525 ). Thus, the trial court "must possess the authority to reasonably control the scope of voir dire examination if the trial is to progress in an orderly and expeditious manner." Allen v. Se-Go Indus., Inc., 510 So.2d 1097, 1098 (Fla. 3d DCA 1987) (citing Mizell v. New Kingsley Beach, Inc., 122 So.2d 225, 227 (Fla. 1st DCA 1960) ).

We conclude that this isolated unobjected-to comment by the trial court was not fundamental error as it did not deprive Kendle of his right to a fair trial. Rather, it was an attempt by the trial court to control the courtroom and the process following Kendle's insistence on addressing the jury during the court's questioning of the prospective jurors. To the extent that any error occurred, it was de minimis.

CONCLUSION

Because: (1) the record reflects that the trial court's colloquies of Kendle at every critical stage of the proceedings complied with Faretta and rule 3.111(d) and sufficiently advised Kendle of the pitfalls and the difficulties associated with self-representation; (2) the record reflects that Kendle made a knowing and voluntary waiver of representation by counsel and election to represent himself; and (3) neither the State, nor the trial court, committed fundamental error when advising or questioning the jury, we affirm the judgment and sentences imposed in this case.

Affirmed.

      Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      The record reflects that Kendle withdrew his request to proceed pro se during a hearing on April 30, 2014, while at the same time refusing to answer any of the trial court's questions. Instead, indicating that he would no longer participate in the proceedings, which he called "a charade."

      Attorney Viera was appointed due to a conflict with the Public Defender's Office.

      Prior stand-by counsel, Marla Levenstein, was discharged by the trial court at the August 13, 2015 hearing at Kendle's request.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jesse Tyler WHITT, Appellant, v. Crystal LOPEZ, Appellee.
    No. 3D18-718
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018
    Kimberly H. Schultz, for appellant.
    Kenneth M. Kaplan, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Finding no abuse of discretion, we affirm the trial court's order without prejudice to appellant's right to accept the trial court's invitation to schedule an evidentiary hearing on the question of the validity of the hair follicle drug test.

      As the trial court stated to appellant's counsel during the February 14, 2018 hearing, "[i]f you want to go ahead and reset it for a later time for an evidentiary hearing you are welcome to. But in the interim the child is not going to be in danger. I warned you both specifically. And I am not going to have this child on drugs-he on drugs with the child around."


author: SCALES, J.

text:
    SAFARI TOURS, INC., Appellant, v. Juan E. PASCO, et al., Appellees.
    No. 3D17-2336
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018
    Lorenzen Law, P.A., and Dirk Lorenzen, Coral Gobles, for appellant.
    Richard Lorenzo, Coral Gobles, for appellees.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   SCALES, J.

Appellant, plaintiff and counter-defendant below, Safari Tours, Inc. ("Safari"), appeals the trial court's denial of Safari's post-trial motions directed toward a jury verdict and the resulting final judgment that awarded appellees, defendants and counter-plaintiffs below, Juan E. Pasco, Louis Pasco, Phoenix Automotive, Inc. and Phoenix Automotive Services, Inc. (collectively, "Phoenix") the amount of $50,375 in damages on Phoenix's counterclaim. We reverse only the portion of the final judgment that awarded Phoenix $27,375 in storage fees because Phoenix's repair estimate failed to substantially comply with section 559.905(1)(n) of Florida's Motor Vehicle Repair Act. We otherwise affirm the final judgment.

I. Relevant Facts and Procedural Background

After Safari's tour bus was damaged in a collision, Safari took the bus to Phoenix's repair shop to have the bus repaired. Phoenix provided Safari with a written repair estimate, which estimated the cost to repair the damage at $25,173.47. Phoenix's written repair estimate, however, did not inform Safari that there would be any daily charge for storing the bus after Phoenix had notified Safari that the repairs had been completed.

A dispute between the parties arose as to payment for the repairs Phoenix had performed, and Safari ultimately sued Phoenix for the return of the bus. In its three-count counterclaim against Safari, Phoenix sought $18,000 in uncompensated repair costs, an unspecified amount for storage fees, and non-economic damages for a tort claim. The jury returned a verdict for Phoenix on Safari's claims and, on Phoenix's counterclaims against Safari, awarded Phoenix the $18,000 Phoenix had sought for repair costs, $5,000 on its tort claim, and $27,375 for storage fees. The jury's verdict form contains a handwritten notation that the storage fees were calculated by awarding Phoenix twenty-five dollars per day for three years of storage.

Safari did not (and does not) challenge the $18,000 awarded by the jury for repair costs, but challenged the verdict on the tort claim and storage fees by filing post-trial motions seeking a judgment notwithstanding the verdict, a rehearing, a new trial and a remittitur. In unelaborated orders, the trial court denied all of Safari's post-trial motions, and entered the final judgment on appeal.

II. Analysis

We affirm the trial court's rulings on all of Safari's post-trial motions, except for its denial of Safari's motions directed toward the storage fees. A motor vehicle repair shop, such as Phoenix, may not collect fees due from a customer if the repair shop does not substantially comply with the written repair estimate provisions of section 559.905(1). See Osteen v. Morris, 481 So.2d 1287, 1289-90 (Fla. 5th DCA 1986). Section 559.905(1)(n) plainly and unambiguously provides that all written repair estimates must contain "[a] statement indicating the daily charge for storing the customer's motor vehicle after the customer has been notified that the repair work has been completed." It is undisputed that Phoenix's repair estimate reads, in relevant part: "A storage fee of $______ per day may be applied to vehicles which are not claimed within 3 working days of notification of completion."

By leaving the form's line blank, Phoenix failed to comply with section 559.905(1)(n), and therefore, may not collect from Safari the storage fees associated with the bus repair. See Osteen, 481 So.2d at 1289-90. The trial court erred by denying Safari's post-trial motions in this regard, and by including the storage fees in the final judgment.

While not entirely clear, Phoenix seems to argue that, notwithstanding the repair estimate's failure to inform Safari of storage fees, Phoenix should nevertheless prevail on this issue because Safari failed to provide this Court with a copy of the trial transcript which, presumably, could establish that Phoenix otherwise substantially complied with section 559.905(1)(n). The record before this Court, however, contains all written exhibits introduced at trial, none of which evidence compliance, substantial or otherwise, with the requirement. Indeed, those cases relied upon by Phoenix allowing a repair shop to recover based on "substantial compliance" with the statute's requisites all involve written repair estimates of which the vehicle owner had knowledge. See, e.g., Siam Motors, Inc. v. Spivey, 136 So.3d 692, 694 (Fla. 2d DCA 2014) (holding that when repair shop provides proper written estimate, oral authorization for additional repair work does not violate statute); KT's Kar Kare, Inc. v. Laing, 617 So.2d 325, 326 (Fla. 4th DCA 1993) (holding that handwritten estimate substantially complied with requirements of section 559.905 where both parties agreed to it); Lieberman v. Collision Specialists, Inc., 526 So.2d 102, 103 (Fla. 4th DCA 1987) (holding that repair shop was entitled to payment where substantially conforming written estimate was prepared by the vehicle owner's insurance company). Phoenix has not cited to us any authority that purely oral communications - possibly reflected in a trial transcript - may constitute "substantial compliance" with the statute's requirement that the repair estimate notify the customer in writing of a repair shop's storage fees. Indeed, Phoenix does not argue, or even suggest, that it otherwise complied with the statute's requirement.

III. Conclusion

We reverse the portion of the final judgment that included $27,375 in storage fees and remand to the trial court to enter a revised judgment for Phoenix consistent with this opinion.

Affirmed in part; reversed in part and remanded.

      While there is no transcript of the trial, the record reflects that the jury did ask a question during the trial as to how to calculate the storage fees sought by Phoenix. The trial judge responded to the jury's note by telling the jury to rely on the evidence presented.

      The final judgment authorizes Phoenix to retain possession of the bus until judgment is paid. While Safari also challenges this portion of the judgment, we do not reach this issue as it is moot because Phoenix auctioned off the bus. Antar v. Seamiles LLC, 960 So.2d 802, 803 (Fla. 3d DCA 2007) ("A case is 'moot' when it presents no actual controversy or when the issues have ceased to exist." (quoting Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) ) ).

      That we have a record containing all evidence and exhibits proffered by the parties and considered by the jury (albeit with no trial transcript) distinguishes this case from Perez-Priego v. Bayside Carburetor and Ignition Corp., 633 So.2d 1190 (Fla. 5th DCA 1994). In Perez-Priego, the petitioner sought second-tier certiorari review from the district court after the circuit court appellate division affirmed a county court verdict in favor of a repair shop alleged to have performed repairs without submitting a written estimate to the customer. Id. at 1191. Because there was no record of the trial, our sister court was unable to conclude that the appellate division had departed from the essential requirements of law. Id.


text:
    Kevin CARROLL, Appellant, v. Brigette Marcela GOLL, Appellee.
    No. 3D17-0128
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018.
    The Vogelsang Law Firm and George C. Vogelsang (Sunrise); The Levey Law Firm, P.A. and John R. Kelso, Miami, for appellant.
    Kelley Kronenberg, Tracy Belinda Newmark and Natalie Suzanne Kay (Plantation), Fort Lauderdale, for appellee.
    Before EMAS, LOGUE and LUCK, JJ.
   PER CURIAM.

Kevin Carroll raises five issues in his appeal of the trial court's final judgment of paternity. We affirm the paternity judgment in all respects but one.

The general magistrate, in a report adopted by the trial court, found that Carroll was ordered to pay Bridgette Marcela Goll three-hundred-fifty-one dollars of child support every other week in an August 2007 temporary injunction for protection against domestic violence with minor children. The general magistrate concluded that the August 2007 temporary injunction was still in effect by March 2015, with Carroll owing $28,388.50 in arrearages in the eight years since the order was entered.

Carroll contends that he owed no more than one year's worth of arrearages, and not eight years as calculated by the general magistrate, because the temporary injunction expired in August 2008. Goll responds that Carroll did not raise an objection to the calculation of child support arrearages based on the August 2007 temporary injunction, and even if he did, section 741.30(6)(a)4. of the domestic violence injunction statute required that the enjoined party pay child support until a permanent child support order was entered.

Goll is wrong, first, because Carroll did object to the general magistrate's calculation of child support arrearages. In his exceptions to the general magistrate's report, Carroll wrote that "[t]he General Magistrate erroneously used an expired Temporary Domestic Violence Injunction rather than the Temporary Support Order ... in this case and awarded $37,669 in arrearages less an $8,281 credit or $28,000, a $22,000 error." The trial court denied the exception.

Goll is wrong, also, that section 741.30(6)(a)4. required that the child support be continued until the paternity order was entered. Section 741.30(6)(a)4. provides that:

(6)(a) Upon notice and hearing, when it appears to the court that the petitioner is either the victim of domestic violence ... or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court may grant such relief as the court deems proper, including an injunction:...
4. On the same basis as provided in chapter 61, establishing temporary support for a minor child or children or the petitioner. An order of temporary support remains in effect until the order expires or an order is entered by a court of competent jurisdiction in a pending or subsequent civil action or proceeding affecting child support.

§ 741.30(6)(a), Fla. Stat. (2007) (emphasis added). This subsection of the domestic violence injunction statute applies to permanent injunctions, which are issued "[u]pon notice and hearing." Id. Temporary injunctions, on the other hand, are issued "ex parte" and "pending a full hearing" pursuant to subsection (5)(a) of the domestic violence injunction statute. Id. § 741.30(5)(a). The August 2007 order was not a permanent injunction, but a "temporary injunction" because it was labeled that way by the trial court and by its terms it was issued "without prior notice" and with a hearing to be set by the parties. There are many distinctions between temporary and permanent domestic violence injunctions, but the most important distinction for our purposes is that the temporary injunction subsection does not have a companion provision for child support. Compare id. § 741.30(5)(a) 1.-3., with id. § 741.30(6)(a) 1.-7. The language Goll relies on (underlined above) is not in the temporary injunction subsection.

Even if it was, the domestic violence injunction statute authorizes, but does not require, trial courts to award temporary support until an order is entered in a pending or subsequent case. Section 741.30(6)(a) gives a list of potential relief to victims of domestic violence, but the list is not exclusive or mandatory and the trial court "may grant such relief as the court deems proper," and "[o]rder[ ] such other relief as the court deems necessary for the protection of a victim of domestic violence." Id. § 741.30(6)(a) (emphasis added). The trial court has the discretion to tailor the domestic violence injunction to give more or less relief based on the unique facts and circumstances of each case. (For example, if the domestic violence petitioner has no children with the respondent, then there is no need to set up a parenting plan, even though the domestic violence injunction statute authorizes such plans in section 741.30(6)(a) 3. The trial court is not required to include all available relief in the injunction, and has wide latitude to do what's necessary to protect the victim of domestic violence.)

The trial court did not have to include the until-an-order-is-entered-in-a-pending-or-subsequent-civil-action language, and indeed, in the August 2007 order, the trial court deemed it proper to award child support through August 2008 "or until the final judgment for protection, if entered, [was] served." Because it is undisputed that no final judgment for protection was ever entered or served, the child support order expired in August 2008.

Thus, the general magistrate legally erred in awarding child support arrearages based on an order that had expired. See Motie v. Motie, 132 So.3d 1210, 1214 (Fla. 5th DCA 2014) ("The next issue is whether the trial court erred in finding that no arrearage was due. An award of retroactive alimony or child support is reviewed for an abuse of discretion. In this case, the trial court made three legal errors in calculating the arrearage that require reversal." (citation omitted) ). The general magistrate included eight years of child support arrearages where only one year was ordered. We reverse and remand to the trial court to recalculate the child support arrearages based on Carroll's failure to pay from August 2007 (when the trial court ordered him to pay Goll three-hundred-fifty-one dollars every other week) through August 2008 (when the injunction expired). We affirm the general magistrate's detailed reports, as adopted by the trial court, in all other respects.

Affirmed in part, and reversed and remanded in part with instructions.


author: MORRIS, Judge.

text:
    Michael A. ROBINSON, Appellant, v. Ellen MAREK; and Toni Jae Hill, a/k/a T.J. Hill Heritage Hills Industries, LLC, Appellees.
    Case No. 2D17-3383
    District Court of Appeal of Florida, Second District.
    Opinion filed August 24, 2018
    Brett Wadsworth of Brett Wadsworth, LC (deceased), Tampa, for Appellant.
    James A. Boyko, Spring Hill, for Appellee Ellen Marek.
    No appearance for remaining Appellee.
   MORRIS, Judge.

Michael Robinson appeals an order dismissing an action for lack of prosecution. We reverse because record activity occurred during the grace period after the trial court filed its notice of lack of prosecution, thus precluding dismissal for lack of prosecution.

In 2007, Ellen Marek filed an action against Robinson and two other defendants for breach of a construction contract. On April 7, 2015, the trial court granted Robinson's motion for summary judgment and entered summary judgment in favor of Robinson. On May 6, 2015, Robinson filed a motion for attorney's fees, but it was never set for hearing. On March 24, 2017, the trial court issued a notice of lack of prosecution. On May 11, 2017, Robinson filed a notice of hearing on his motion for attorney's fees. On June 21, 2017, the trial court entered an order dismissing the action for lack of prosecution, finding that there had been no record activity for over two years.

Robinson appeals the order of dismissal, arguing that the trial court erred in dismissing Marek's action for lack of prosecution because he filed a notice of hearing on his pending motion for attorney's fees, which he claims constituted record activity that precluded dismissal under Florida Rule of Civil Procedure 1.420(e).

Rule 1.420(e) provides as follows:

In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

(Emphasis added.) "Record activity is defined as the 'filing of pleadings, order of court, or otherwise.' " Zuppardo v. Dunlap & Moran, P.A., 186 So.3d 1067, 1068 (Fla. 2d DCA 2016) (quoting Fla. R. Civ. P. 1.420(e) ). "The test for record activity during the ten-month period and during the sixty-day grace period is a bright-line rule 'under which any filing of record is sufficient to preclude dismissal.' " Id. (quoting Citibank, N.A. v. Konigsberg, 149 So.3d 1185, 1186 (Fla. 2d DCA 2014) ). Previous interpretations of the rule required a filing that affirmatively moved the case forward, but there is no longer a distinction "between active or passive record activity." Id. (first citing Wilson v. Salamon, 923 So.2d 363, 365 (Fla. 2005) ; then quoting Citibank, N.A., 149 So.3d at 1186 ). The rule requires "only a cursory review of the record" to determine whether there is record activity. Id. (quoting Citibank, N.A., 149 So.3d at 1186 ); Wilson, 923 So.2d at 368 ("[T]he rule establishes a bright-line test that will ordinarily require only a cursory review of the record by a trial court.... We find this bright-line rule appealing in that it establishes a rule that is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active."). This bright-line rule "applies to both time periods set forth" in rule 1.420(e) : the ten-month time period as well as the sixty-day grace period. See Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 792 (Fla. 2011).

Here, the trial court provided notice on March 24, 2017, that no activity had occurred within ten months. Then, on May 11, 2017, Robinson filed a notice of hearing of his pending motion for attorney's fees. This notice of hearing, filed within the sixty-day grace period, constituted "record activity" that was sufficient to avoid dismissal under rule 1.420(e). See Wilson, 923 So.2d at 364, 369 (holding that motion for attorney to appear pro hac vice constituted record activity that prevented dismissal under rule 1.420(e) ); Edwards v. City of St. Petersburg, 961 So.2d 1048, 1049-50 (Fla. 2d DCA 2007) (holding that "motion for hearing and for witness attendance" filed within sixty-day grace period constituted record activity preventing dismissal under rule 1.420(e) ); Weston TC LLLP v. CNDP Mktg. Inc., 66 So.3d 370, 371 (Fla. 4th DCA 2011) (holding that "notice of the absence and unavailability of [plaintiff's] attorney" constituted record activity under rule 1.420(e) ); Lingo Constr. v. Pritts, Inc., 990 So.2d 705, 706 (Fla. 4th DCA 2008) (holding that "motion to set a date for arbitration" filed within sixty-day grace period prevented dismissal under rule 1.420(e) ). Therefore, the trial court erred in dismissing the action for lack of prosecution. Accordingly, we reverse the order of dismissal.

Reversed and remanded.

LaROSE, C.J., and KELLY, J., Concur.


text:
    Neftali DEJESUS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1180
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Neftali DeJesus, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ, and SCALES, JJ.
   PER CURIAM.

Affirmed. See Smith v. State, 21 So.3d 72 (Fla. 1st DCA 2009) ("It is well-settled that when a court determines whether an allegation is conclusively refuted by the record, it may rely on the sworn testimony the defendant has given in a plea colloquy. Any allegations that contradict those answers should not be entertained. As long as the defendant's sworn testimony at the plea colloquy is specific enough to refute the allegations made in a post-plea motion, it may form the basis for a determination that the allegation is conclusively refuted by the record.") (citations omitted), See also Alfred v. State, 71 So.3d 138, 139 (Fla. 4th DCA 2011) ("A defendant is bound by his sworn answers during a plea colloquy ...."); Terrell v. State, 9 So.3d 1284, 1289 (Fla. 4th DCA 2009) ("The defendant is [ ] bound by his sworn answers during the colloquy.").


author: FERNANDEZ, J.

text:
    WOODRUFF-SAWYER & CO., Appellant/Cross-Appellee, v. Richard GHILOTTI and Nancy Ghilotti, as the Co-Personal Representatives of the Estate of Dino R. Ghilotti, deceased, Appellees/Cross-Appellant.
    Nos. 3D16-1135 & 3D16-1146
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Luks, Santaniello, Petrillo & Jones and Stuart L. Cohen and Edgardo Ferreyra, Jr., Miami, for appellant/cross-appellee.
    Kreusler-Walsh Vargas & Serafin, P.A. and Jane Kreusler-Walsh, Rebecca Mercier Vargas and Stephanie L. Serafin (West Palm Beach); Deutsch & Blumberg, P.A. and Steven K. Deutsch, Miami, for appellees/cross-appellant.
    Before SUAREZ, SALTER, and FERNANDEZ, JJ.
   FERNANDEZ, J.

Appellant Woodruff-Sawyer & Co. ("Woodruff-Sawyer") appeals the lower court's April 18, 2016 non-final order denying Woodruff-Sawyer's motion to dismiss for lack of personal jurisdiction. Appellees Richard Ghilotti and Nancy Ghilotti (the "Ghilottis"), as the Co-Personal Representatives of the Estate of Dino R. Ghilotti, deceased, separately appeal the lower court's April 18, 2016 order granting Woodruff-Sawyer's motion to dismiss for forum non-conveniens and motion to sever and the lower court's order denying the Ghilottis' motion for an additional stipulation. For the reasons stated below, we reverse the denial of Woodruff-Sawyer's motion to dismiss for lack of personal jurisdiction. The reversal renders the other issues on appeal moot.

This cause arises from an agreement to procure insurance between Woodruff-Sawyer and non-party Ghilotti Construction Company, Inc. ("Ghilotti Construction"), both with their principal places of business in California. Woodruff-Sawyer procured automobile insurance and excess automobile insurance from two non-party insurers for Ghilotti Construction. In May of 2013, the Ghilottis' son, Dino Ghilotti (the "Decedent"), died as a result of a motor vehicle collision in Coral Gables, Florida. Subsequent to the Decedent's death, the Ghilottis sought compensation from various non-parties, the details of which are not relevant to the disposition of the jurisdictional issues on appeal.

On October 29, 2014, the Ghilottis filed an amended complaint alleging that Woodruff-Sawyer acted negligently in procuring said automobile insurance and breached its fiduciary duty in doing so. Specifically, the Ghilottis alleged that the insurance policies Woodruff-Sawyer procured did not provide sufficient and adequate underinsured motorist benefits to cover damages incurred as a result of the Decedent's death. With respect to jurisdiction, the amended complaint avers that at all relevant times Woodruff-Sawyer: (i) "was operating, conducting, engaging in, or carrying on an insurance broker and/or agency business in Florida;" (ii) "was a foreign corporation authorized to transact business in Florida and designated a Florida registered agent to accept service of process;" and (iii) "effectively committed tortious acts within Florida and directed at individuals in Florida, including [the Decedent]." The amended complaint also contains a recitation of facts describing an agreement between Woodruff-Sawyer and Richard Ghilotti, wherein Woodruff-Sawyer "agreed and undertook to act as the insurance broker and/or insurance agent for Richard Ghilotti and his company, Ghilotti Construction ...

[and procure automobile insurance] to fully cover [the Decedent] ... [who] was an intended and third party beneficiary of the foregoing contract." Further, the Ghilottis alleged that Woodruff-Sawyer "knew or should have known that [the Decedent] was a full-time ... [student in] Miami-Dade County ... [whose car] would be and was principally garaged in Miami-Dade County, Florida, while he was [a student]."

On December 3, 2014, Woodruff-Sawyer filed a motion to dismiss the amended complaint for lack of personal jurisdiction, supported by the affidavit of Zac Overbay, a Senior Vice President and shareholder of Woodruff-Sawyer on its behalf. On March 4, 2015, the Ghilottis filed a memorandum of law in opposition to said motion, supported by the affidavit of Richard Ghilotti. On March 6, 2015, Woodruff-Sawyer filed a reply to the opposition, as well as a motion to sever. On August 26, 2015, the lower court held a hearing on the same. On April 18, 2016, the lower court entered an order denying Woodruff-Sawyer's motion to dismiss for lack of personal jurisdiction. This appeal followed.

We review the lower court's order denying Woodruff-Sawyer's motion to dismiss for lack of personal jurisdiction de novo . See, e.g., Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla. 2002). Our analysis is governed by a two-step inquiry for determining whether long-arm jurisdiction over a nonresident defendant is proper, consistent with the holding of Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989).

First, we must determine whether the Ghilottis alleged facts sufficient to bring the action within the ambit of Florida's long-arm statute. The first prong of the analysis does not include due process considerations. Internet Sols. Corp. v. Marshall, 39 So.3d 1201, 1215 (Fla. 2010) ("[The Florida Supreme Court has] never construed the first prong of the jurisdiction analysis with a constitutional overlay ... [i]ssues of due process and fairness are properly considered in the second prong, which imposes a more restrictive requirement.") (internal quotations and citations omitted). To bring the cause within the ambit of the long-arm statute, the complaint may either allege facts sufficient to show that the defendant's actions fit within one or more of the subsections of the statute, or track the language of the statute. Fla. R. Civ. P. 1.070(i) ; Venetian Salami, 554 So.2d at 502.

Second, if the first prong is satisfied, we must determine whether Woodruff-Sawyer has sufficient "minimum contacts," with Florida, to satisfy due process requirements. Personal jurisdiction takes two forms, general jurisdiction and specific jurisdiction, as detailed herein.

A motion to dismiss, without more, only challenges the legal sufficiency of the pleadings. In order to contest the complaint's jurisdictional allegations or to raise due process concerns, a defendant must file an affidavit or other sworn proof.

If the defendant's affidavit properly contests the basis for long-arm jurisdiction with legally sufficient facts, the plaintiff bears the burden to refute the proof in the defendant's affidavit with a supporting affidavit. If the relevant facts set forth in the respective affidavits directly conflict, then the trial judge must hold a limited evidentiary hearing to resolve the factual dispute. Id. at 502-03 ; see also Belz v. Investco Ltd. P'ship v. Groupo Immobiliano Cababie, S.A., 721 So.2d 787 (Fla. 3d DCA 1998).

On appeal, Woodruff-Sawyer argues the lower court erred in denying the motion to dismiss for lack of personal jurisdiction because the Ghilottis have failed to allege facts sufficient to warrant the imposition of personal jurisdiction under the long-arm statute, and because Woodruff-Sawyer does not have sufficient minimum contacts with Florida to satisfy the Due Process Clause of the United States Constitution.

Personal jurisdiction, unlike subject matter jurisdiction, is a waivable right. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462 n.14, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ; Babcock v. Whatmore, 707 So.2d 702 (Fla. 1998). In certain circumstances, Florida law authorizes the exercise of personal jurisdiction based upon consent. See, e.g., Fla. Stat. §§ 685.101 and 685.102 ; Jetbroadband WV, LLC v. Mastec N. Am., 13 So.3d 159 (Fla. 3d DCA 2009).

Section 48.091, Florida Statutes, requires every foreign corporation qualified to transact business in Florida to designate a registered agent for service of process. The Ghilottis argue Woodruff-Sawyer consented to personal jurisdiction in Florida by both obtaining a license to do business and designating a registered agent in Florida. As a threshold issue, it is important to clarify that although the Ghilottis frame the issue as one of "consent" to jurisdiction, in actuality the Ghilottis argue for the exercise of general jurisdiction over Woodruff-Sawyer.

The Ghilottis rely primarily on three cases to support the proposition that both registration to do business and designation of a registered agent for service of process in Florida is sufficient, without more, to establish personal jurisdiction in Florida courts: White; Ulloa; and Cherry.

White and Ulloa are inapposite. See, e.g., Magwitch, LLC v. Pusser's W. Indies Ltd., 200 So.3d 216, 218 (Fla. 2d DCA 2016). First, White addresses the sufficiency of service of process under section 48.081, Florida Statutes (1983), and does not address due process considerations.

White v. Pepsico, 568 So.2d 886, 888 (Fla. 1990) ("The only question before this Court is whether White executed service of process on Pepsico pursuant to the requirements of the Florida Statutes."). Second, Ulloa does not involve issues of personal jurisdiction. Ulloa v. CMI, Inc., 133 So.3d 914, 920 (Fla. 2013) ("This case clearly does not involve personal jurisdiction because [the non-party witness] is not a party to the action.").

Cherry has yielded to subsequent precedent. Rose's Stores, Inc. v. Cherry, 526 So.2d 749 (Fla. 5th DCA 1988). Cherry is inconsistent with both Florida's long-arm statute as well as the United States Supreme Court's decisions in Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011).

Section 48.193(2), Florida Statutes, provides a basis for asserting general jurisdiction over foreign corporations who are "engaged in substantial and not isolated activity within [Florida]." Florida courts have interpreted this statutory language to require "continuous and systematic" business contacts that are "extensive and pervasive." See, e.g., Banco De Los Trabajadores, 237 So.3d at 1134 ; Aegis Defense Servs., LLC v. Gilbert, 222 So.3d 656, 659 (Fla. 5th DCA 2017) ; and Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 259 (Fla. 4th DCA 2011). Here, the amended complaint does not track the language of section 48.193(2), nor does it allege facts sufficient to show that Woodruff-Sawyer engaged in substantial and not isolated activity within Florida. The allegation that Woodruff-Sawyer "was a foreign corporation authorized to transact business in Florida and designated a Florida registered agent to accept service of process," without more, can hardly be described as substantial and not isolated activity. Thus, the Ghilottis fail to even satisfy the first prong of the Venetian Salami test.

While we need not address the second prong, given the failure to satisfy the first, we note that the due process standard for the exercise of general jurisdiction is even more exacting. Indeed, Daimler reiterated the due process inquiry undertaken in Goodyear, "whether that corporation's affiliations with the State are so continuous and systematic as to render [it] essentially at home in the forum State." 571 U.S. at 139, 134 S.Ct. 746 (quoting Goodyear, 564 U.S. at 919, 131 S.Ct. 2846 ) (internal quotations omitted). Woodruff-Sawyer is not incorporated in Florida, does not maintain its principal place of business in Florida, and is not so heavily engaged in activity in Florida as to render it essentially at home in Florida. See also BNSF Ry. Co. v. Tyrrell, --- U.S. ----, 137 S.Ct. 1549, 198 L.Ed.2d 36 (2017). The exercise of general jurisdiction, in this instance, is not appropriate.

Section 48.193(1)(a), Florida Statutes, enumerates several acts that subject a nonresident to the jurisdiction of the courts of Florida, provided the cause of action arises from any of those acts. We are required to strictly construe the long-arm statute in favor of the nonresident defendant. Navas v. Brand, 130 So.3d 766, 770 (Fla. 3d DCA 2014).

The Ghilottis argue that the amended complaint, either through alleging detailed facts or tracking statutory language, implicates sections 48.193(1)(a)(2) and (1)(a)(7). Specifically, the Ghilottis claim Woodruff-Sawyer is subject to long-arm jurisdiction because it committed tortious acts in Florida and breached an agreement in Florida.

First, we are unpersuaded that section 48.193(1)(a)(7) is implicated, which requires a breach of contract in Florida "by failing to perform acts required by the contract to be performed in this state." In no part does the amended complaint track this language, nor does it contain specific facts to that effect. Even still, Woodruff-Sawyer's affidavit specifically contesting that basis of long-arm jurisdiction went unrebutted by the Ghilottis' affidavit. Thus, with respect to section 48.193(1)(a)(7), the complaint does not allege sufficient jurisdictional facts to bring the action within the ambit of Florida's long-arm statute.

Next, we address section 48.193(1)(a)(2), "[c]ommitting a tortious act within this state." The Ghilottis claim that Woodruff-Sawyer "effectively committed tortious acts within Florida and directed at individuals in Florida, including [the Decedent.]" As has been recognized by the Florida Supreme Court, a defendant's physical presence is not required in order to "commit a tortious act" in Florida. Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla. 2002) (holding that a nonresident defendant's telephonic, electronic, or written communications into Florida can amount to committing a tortious act in Florida). However, that does not obviate the connexity requirement: the existence of a causal connection between the defendant's activities in Florida and the plaintiff's cause of action. Id. Here, Woodruff-Sawyer's affidavit, in relevant parts, goes unrebutted: all activities and communications related to procuring the subject policies occurred in California, and the subject policies were issued to a California company. Therefore, we find that the Ghilottis did not satisfy the requirements for personal jurisdiction under Florida's long-arm statute. See, e.g., Merkin v. PCA Health Plans of Florida, Inc., 855 So.2d 137, 141 (Fla. 3d DCA 2003).

Finally, the exercise of specific jurisdiction in this cause would be contrary to due process. In Walden v. Fiore, the United States Supreme Court held that the foreseeability of harm to plaintiffs with connections to the forum state does not suffice to authorize specific jurisdiction, where the relevant conduct occurred entirely outside of the forum state. 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). In other words, "the plaintiff cannot be the only link between the defendant and the forum," as is the case here. Id. at 286, 134 S.Ct. 1115. "What is needed - and what is missing here - is a connection between the forum and the specific claims at issue." Bristol-Myers Squibb Co. v. Superior Court of California, --- U.S. ----, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017).

For the reasons discussed above, we reverse, holding that the circuit court lacked both general and specific jurisdiction over Woodruff-Sawyer.

Reversed.

      Nancy Ghilotti has since passed away and is no longer a co-personal representative of the Estate.

      The Decedent was a passenger in a non-party's vehicle. The car insured under the policies relevant here was not involved.

      Although courts, in some cases, use the terms "consent" and "waiver" interchangeably, it is important to distinguish between instances in which the jurisdictional challenge is considered on the merits versus instances in which a defendant is precluded from asserting a jurisdictional defense. As discussed in Babcock, a court will not entertain a personal jurisdictional defense for a number of reasons, including, but not limited, failing to timely object to personal jurisdiction or seeking affirmative relief. 707 So.2d at 704-05. In such cases, a court does not reach the due process analysis. However, where a jurisdictional challenge is properly entertained on its merits, the due process requirements of the United States Constitution must also be considered.

      The Ghilottis do not argue, and the record does not support, that Woodruff-Sawyer should be precluded from contesting personal jurisdiction. The Ghilottis do not point to an agreement between the parties that confers personal jurisdiction on a Florida court, which could affect the due process analysis. See, e.g., Jetbroadband WV, LLC, 13 So.3d at 163 ("Normally, courts review a number of factors to determine whether minimum contacts exist. However, in the commercial context, the Supreme Court has held that the minimum contacts standard is met if a forum-selection clause exists that is freely negotiated and is not unreasonable and unjust.") (internal quotations and citations omitted). Nor do the Ghilottis cite any Florida statute that explicitly states obtaining a license to do business and designating a registered agent, in Florida, are sufficient to satisfy due process requirements. Contra Bane v. Netlink, 925 F.2d 637, 640 (3d Cir. 1991) ("Pennsylvania law explicitly states that the qualification of a foreign corporation to do business is sufficient contact to serve as the basis for the assertion of personal jurisdiction ... such registration by a foreign corporation carries with it consent to be sued in Pennsylvania courts.").

      Even if White had thoroughly addressed due process considerations, as we note below, subsequent precedent has since refined the constitutional due process standard for determining general jurisdiction.

      Cherry, 526 So.2d 749, is one of a number of similarly situated cases. See, e.g., Dombroff v. Eagle-Picher Indus., Inc., 450 So.2d 923 (Fla. 3d DCA 1984) ; Ranger Nationwide, Inc. v. Cook, 519 So.2d 1087 (Fla. 3d DCA 1988) ; and Junction Bit & Tool Co. v. Institutional Mortg. Co., 240 So.2d 879 (Fla. 4th DCA 1970).

      This Court has recognized that Daimler and Goodyear "significantly" changed the constitutional due process standard for determining general jurisdiction. Banco De Los Trabajadores v. Cortez Moreno, 237 So.3d 1127, 1134 (Fla. 3d DCA 2018).

      Section 48.193(2), Florida Statutes - A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.


text:
    Lazaro QUINTERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-789
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    Lazaro Quintero, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Lazaro Quintero appeals an order that denied his Florida Rule of Criminal Procedure 3.800(a) motion that alleged his sentence was illegal. The trial court's order denied Quintero's motion, and directed Quintero to show cause why he should not be precluded from further pro se filings in lower court case number F08-32265. We affirm the denial of Quintero's rule 3.800 motion. We dismiss, as premature, Quintero's appeal regarding that portion of the order requiring him to show cause, without prejudice to Quintero separately appealing any final order entered below precluding him from further pro se filings in the trial court in this case. See State v. Spencer, 751 So.2d 47, 48-49 (Fla. 1999) ("[P]roviding notice and an opportunity to respond through the issuance of an order to show cause ... serves to generate a more complete record. If the litigant is thereafter denied further pro se access to the courts, the appellate courts will have an enhanced ability to determine whether the denial of access is an appropriate sanction under the circumstances.").

Affirmed in part, dismissed in part.


text:
    Jeromy Stephen SCHIEDENHELM, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3504
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018 Rehearing Denied October 11, 2018
    Jeromy Stephen Schiedenhelm, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Jeromy Schiedenhelm, appeals the order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, where he raised eight claims of ineffective assistance of counsel. Because Appellant filed a legally and facially sufficient claim in ground six, and the attachments do not conclusively refute the claim, we reverse the summary denial of ground six and remand for an evidentiary hearing or for the court to attach portions of the record that conclusively refute the claim. See Cioeta v. State, 204 So.3d 156 (Fla. 5th DCA 2016). In all other respects, we affirm.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, TORPY, and WALLIS JJ., concur.


author: SUAREZ, J.

text:
    INTER AMERICAN COAL, S.A., etc., Appellant, v. SHE DDF2-FL2, LLC, etc., Appellee.
    No. 3D18-1205
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    Diaz, Reus & Targ, LLP, and Michael Diaz, Jr., Chad S. Purdie, and Roland Potts, for appellant.
    Agentis, PLLC, and Christopher B. Spuches and Alexander G. Strassman, for appellee.
    Before SUAREZ, EMAS, and FERNANDEZ, JJ.
   SUAREZ, J.

This is an appeal from a final judgment of foreclosure granted in favor of Appellee, SHE DDF2-FL2, LLC ("SHE"). Appellant, Inter American Coal, S.A. ("Inter American"), argues that SHE's predecessor in interest, NWL 2016 EVERGREEN, LP ("NWL"), did not comply with the statutory requirements for service of process by publication, and therefore, the trial court did not have jurisdiction over Inter American. Because we find that Inter American waived its objection to service of process by seeking affirmative relief inconsistent with its objection, we affirm.

In May 2017, NWL filed a complaint for foreclosure. Inter American, a Panamanian company, was included on the complaint because it also held a mortgage on the property. In June 2017, NWL filed a sworn statement for service of process by publication, detailing the steps taken in attempting to serve Inter American. See §§ 49.031 (sworn statement as a condition precedent for service by publication), 49.051 (sworn statement requirements when the defendant is a corporation), Fla. Stat. (2018). Appellant SHE was later substituted for NWL as the Plaintiff.

Following constructive service by publication, SHE obtained a clerk's default against Inter American and then filed a motion for final summary judgment. Before the hearing on SHE's motion, Inter American appeared through counsel and moved to quash service of process and set aside the default. In addition to challenging the sworn statement's compliance with the requirements set forth in section 49.051, Florida Statutes, Inter American argued that it had lien priority over SHE's lien on the property. Inter American also asserted that it had lien priority in its response in opposition to SHE's motion for final summary judgment and again at the hearing on said motion. The trial court ultimately found that SHE was the primary lienholder, denied Inter American's motion to quash, and granted SHE's motion for final summary judgment.

"It is well-settled that '[a] judgment entered without valid service is void for lack of personal jurisdiction ....' " Alvarado v. Cisneros, 919 So.2d 585, 587 (Fla. 3d DCA 2006) (quoting Great Am. Ins. Co. v. Bevis, 652 So.2d 382, 383 (Fla. 2d DCA 1995) ). "Nevertheless, a defendant may waive a timely objection to personal jurisdiction by seeking affirmative relief ... inconsistent with an initial defense of a lack of personal jurisdiction." Id.; see also TBI Caribbean Co. Ltd. v. Stafford-Smith, Inc., 239 So.3d 103 (Fla. 3d DCA 2017).

Here, Inter American repeatedly sought affirmative relief on the merits of the foreclosure case by arguing that it had lien priority over SHE. For instance, at the hearing on the motion for final summary judgment, Inter American argued as follows:

[INTER AMERICAN]: Yes. Just to clarify one more point also. We filed our motion to quash and set aside the default on Monday and what we filed yesterday was our response in opposition to the motion for summary judgment. We believe that we have a meritorious defense in this case which is that the priority of the liens here is in question given that there was a lien that occurred in 2016 through a mortgage by the plaintiff, then there was -
THE COURT: Uh-huh.
[INTER AMERICAN]: Which would make up the junior lienholder to the first original mortgage. But during this proceeding, during this case the plaintiff's counsel entered into a forbearance agreement and pursuant to that forbearance agreement issued another lien for an additional $500,000. And it's our position that given the inequitable result that that would have and the prejudice that would result therefrom for our client, that's the priority of the entire -- the partial or -- a part of or the entirety of that lien is in question.

Although described as a "meritorious defense," Inter American's attempt to prioritize its lien was a request for affirmative relief in that it was "relief for which defendant might maintain an action independently of plaintiff's claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it." Sampson Farm Ltd. P'ship v. Parmenter, 238 So.3d 387, 392 (Fla. 3d DCA 2018) (quoting Heineken v. Heineken, 683 So.2d 194, 197 (Fla. 1st DCA 1996) ). Moreover, seeking such relief was inconsistent with Inter American's jurisdictional objection because it was a request to adjudicate the merits of the foreclosure action. See TBI Caribbean, 239 So.3d at 106 (Fla. 3d DCA 2017). We therefore hold that in seeking to prioritize its lien, Inter American waived its objection to service of process.

Affirmed.

      Inter American has not challenged the trial court's determination as to lien priority.

      Because we find that Inter American waived its objection, we do not address the sufficiency of service of process.


author: Osterhaus, J.,

text:
    STERLING BREEZE OWNERS' ASSOCIATION, INC., Appellant/Cross-Appellee, v. NEW STERLING RESORTS, LLC and Sterling Breeze, LLC, Appellee/Cross-Appellant.
    No. 1D17-1553
    District Court of Appeal of Florida, First District.
    September 5, 2018 Rehearing Denied October 16, 2018
    John Cottle and Leslie D. Sheekley of Becker & Poliakoff, P.A., Fort Walton Beach, for Appellant/Cross-Appellee.
    John P. Daniel, Terrie L. Didier, and Joseph A. Passeretti of Beggs & Lane, RLLP, Pensacola, for Appellee/Cross-Appellant.
   Osterhaus, J.,

Sterling Breeze Owners' Association brought declaratory, quiet title, and unjust enrichment claims against the company owning commercial space on the ground floor of its high-rise condominium building in Panama City Beach. The Association alleged that New Sterling Resorts, LLC's four ground-floor commercial parcels could not be owned in fee simple outside of the condominium form of ownership. And it sought to oust New Sterling Resorts from the building and to have its property transferred to the Association's members. The Association also asserted an unjust enrichment claim because New Sterling Resorts failed to pay for its share of utilities and other expenses in the building. The outcome below was mixed. Each party won a claim and lost a claim. The trial court granted summary judgment for New Sterling Resorts on the declaratory and quiet title claims. But it ruled for the Association on the unjust enrichment claim after a bench trial. Both parties have appealed. We now affirm in part and reverse in part.

I.

In 2008, a developer recorded a declaration of condominium for a new 22-story high-rise on Panama City Beach called Sterling Breeze. According to the Declaration of Condominium, the building included 145 residential units and common elements, which were part of the condominium, as well as four ground-floor "associated commercial parcels" (ACPs), which were not part of the condominium. The developer retained fee simple ownership of the four ACPs, which were particularly described in the Declaration (as well as in an "Associated Commercial Parcels Easement and Reservation" agreement between the Association and the developer which was attached to the Declaration). The Easement and Reservation Agreement provided that the ACPs would be used for commercial purposes in the building.

The ACPs's owner would "maintain at its cost and expense the interior of the [ACPs], [as well as be] responsible for all expenses for services including, but not limited to, utilities related to the use thereof."

Some six years later, in August 2014, the Association sued to nullify the Declaration's reservation of the ACPs. By that time, New Sterling Resorts operated one of the four ground-floor parcels as a wine bar, another as a guest gym, and a third as a laundry facility. The fourth ACP was being used for storage. The Association challenged the Declaration's original reservation, asserting that because the ACPs were airspace, they could not be privately owned in fee simple apart from the condominium. It asked that the ACPs be divested from New Sterling Resorts and given to the Association's members as tenants in common.

The Association also brought an unjust enrichment claim to recoup unpaid expenses for utilities, maintenance, and security benefits provided to the ACPs, which New Sterling Resorts hadn't paid.

The court ultimately disposed of the declaratory relief and quiet title claims by granting summary judgment in favor of New Sterling Resorts. After a bench trial, the court ruled for the Association on the unjust enrichment claim and awarded it $332,752.93 in damages.

II.

A.

The circuit court's order granting summary judgment involves a pure question of law that we review de novo. Hill v. Suwannee River Water Mgmt. Dist. , 217 So.3d 1100, 1102 (Fla. 1st DCA 2017).

The Association would oust New Sterling Resorts from its property on the theory that Florida's common law doesn't allow air space to be owned in fee simple separate and apart from the ground surface. But we disagree that this case turns on common law property principles. Here, the developer identified and recorded the disputed property in 2008 under Florida's condominium law, chapter 718, Florida Statutes. The Declaration of Condominium submitted land that it particularly described to the condominium form of ownership-including the common elements and many airspace-residential units in the high-rise building-while reserving other airspace on the ground-floor for the developer outside of condominium ownership. Not only did the Declaration of Condominium particularly identify and reserve the ACPs for ownership separate from the condominium, but the Association signed an easement and reservation agreement attached to the Declaration acknowledging that the ACPs would be commercial space reserved by the developer. And so, irrespective of how the common law might have addressed separate owners of surface space and airspace, the disputed airspace in this case was identified and reserved via a declaration of condominium and associated agreement recorded under chapter 718, Florida Statutes, which specifically addresses airspace. See Maronda Homes, Inc. of Fla. v. Lakeview Reserve Homeowners Ass'n, Inc. , 127 So.3d 1258, 1268 (Fla. 2013) (recognizing that the common law yields where it is inconsistent with state law). Resolution here thus depends on the statute.

Under the Declaration of Condominium filed in this case, almost all of the airspace in the 22-story high-rise was made part of the condominium. But four airspace parcels were carved out in the Declaration and reserved for ownership outside of the condominium. Consistent with this arrangement, Florida's condominium law recognizes that condominiums may encompass both airspace and portions of airspace. The statute's definition of "condominium property" includes "lands ... subjected to condominium ownership, whether or not contiguous." § 718.103(13), Fla. Stat. (emphasis added). See also Beach Club Towers Homeowners Ass'n v. Jones , 231 So.3d 566, 570-71 (Fla. 1st DCA 2017) (relying on the definition of condominium property). In turn, the statute's definition of "land" provides that a declaration of condominium may include "all or any portion of the airspace" as condominium property:

"Land" means the surface of a legally described parcel of real property and includes, unless otherwise specified in the declaration and whether separate from or including such surface, airspace lying above ... such surface. However, if so defined in the declaration , the term "land" may mean all or any portion of the airspace ... and may exclude the surface of a parcel of real property and may mean any combination of the foregoing, whether or not contiguous, or may mean a condominium unit.

§ 718.103(18), Fla. Stat. (emphasis added). Contrary to the Association's argument, neither the definition of "condominium property," nor "land," requires that all of the airspace be included within condominium ownership. Rather, the statute contemplates that portions of airspace may be included or excluded, which is what occurred here. The declaration in this case subjected most (but not all) of the airspace to condominium ownership, which is permissible under the statute.

We therefore agree with the trial court's statutory interpretation and decision to grant summary judgment on the declaratory and quiet title claims here. Florida law does not require divestment of the ACPs from New Sterling Resorts.

B.

We also agree with New Sterling Resorts' legal argument on its cross-appeal. The Association prevailed on an unjust enrichment claim based upon New Sterling Resorts' failure to pay ACP-related expenses for utilities, maintenance, security, and the like. But however blameworthy New Sterling Resorts' conduct might be, an unjust enrichment claim cannot prevail in this case because a contract prescribes the parties' rights and responsibilities for such expenses.

Florida law is clear that "a plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter." Diamond "S" Dev. Corp. v. Mercantile Bank , 989 So.2d 696, 697 (Fla. 1st DCA 2008). And in this case, paragraph seven of the ACP Easement and Reservation agreement, which was appended to the Declaration of Condominium, obligated the owner of the ACPs to "be responsible for all expenses for services including, but not limited to, utilities related to the use thereof." In other words, the agreement specifically addresses the expenses for unpaid services and utilities sought in the Association's lawsuit. Because a contract covers this matter, we reverse and remand the judgment on Count III and direct that judgment be entered for New Sterling Resorts on this quasi-contractual claim.

III.

For these reasons, this appeal is AFFIRMED in part, REVERSED in part, and REMANDED with directions.

Wetherell and Ray, JJ., concur.