text:
    Veronica WALDMAN, et al., Appellants, v. LAQUER FAMILY HOLDINGS LIMITED PARTNERSHIP, Appellee.
    No. 3D18-2116
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019 Rehearing Denied May 9, 2019
    Veronica Waldman, in proper person.
    Nelson Mullins Broad and Cassel and Gary M. Freedman and Kimberly J. Freedman, for appellee.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

We affirm the circuit court's final order denying Veronica Waldman's motion to set aside a foreclosure sale. Ms. Waldman maintains that the foreclosure sale was conducted with "dramatic irregularities" and technical errors, but introduced no competent substantial evidence below, nor any record here, to substantiate that contention. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

Ms. Waldman's second issue on appeal argues that she was not afforded due process regarding a notice of hearing on her objections to the conduct of the sale. After she failed to appear at the hearing, the trial court denied her objections.

The record discloses that there was indeed an invalid email address used, "sawylw@gmail.com" instead of the correct address, "sawvlw@gmail.com," on the service list for a copy intended to be sent to Ms. Waldman. Ms. Waldman's argument fails, however, because the record further discloses that one law firm for her had withdrawn from representing her, but another attorney of record remained counsel of record and was duly served with the notice. "[N]otice to the attorney constitutes notice to the client." Comprehensive Health Ctr., Inc. v. United Auto. Ins. Co., 56 So.3d 41, 43 (Fla. 3d DCA 2010).

The final order is affirmed.


source: Caselaw Access Project

author: EMAS, C.J.

license: Public Domain

text:
    Charles J. SIBLEY, Trustee, Appellant, v. In re: ESTATE OF Curtiss F. SIBLEY, Appellee.
    No. 3D18-2027
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019 Rehearing Denied May 9, 2019
    Charles J. Sibley, in proper person.
    Law Offices of Louise T. Jeroslow, P.A., and Louise T. Jeroslow, for appellee.
    Before EMAS, C.J., and FERNANDEZ and HENDON, JJ.
   EMAS, C.J.

Introduction

Charles Sibley (brother of decedent, Curtiss Sibley, and Trustee of the Curtiss F. Sibley Revocable Living Trust) appeals the trial court's order which (1) determined that the Curtiss F. Sibley Charitable Foundation (the Foundation) was "not in existence" upon Curtiss' death; and (2) based upon that determination and pursuant to the Trust's provisions, ordered Charles to distribute all assets and monies in the trust estate to Fellowship House (Appellee) as the residual beneficiary. Because there is competent substantial evidence to support the trial court's factual determinations, and because the trial court correctly applied the relevant law, we affirm.

Facts and Procedural Background

Before his death, Curtiss executed both a will and a revocable living trust, naming Charles the personal representative of the estate and Trustee. The Trust provided, in pertinent part:

Upon the Settlor's death, the Trustee shall distribute the trust estate as follows:
...
(B) Two hundred and fifty thousand dollars ($250,000.00) to the FELLOWSHIP HOUSE FOUNDATION of South Miami, Florida
...
(D) All remaining trust estate to the Settlor's charitable foundation, the CURTISS F. SIBLEY CHARITABLE FOUNDATION. If the [Foundation] is no longer in existence upon the Settlor's death , then the Trustee shall distribute all of the remaining trust estate to the FELLOWSHIP HOUSE FOUNDATION of South Miami, Florida.

(Emphasis added).

Upon Curtiss' death, Charles was required as Trustee to distribute certain bequests, including the above $250,000 bequest to Fellowship House. In 2017, Fellowship House filed a Petition to Reopen for Subsequent Administration, alleging that, upon Curtiss' death, the Foundation was "no longer in existence" and therefore, pursuant to the Trust provisions, the remaining trust estate must be distributed to Fellowship House as the residual beneficiary.

The trial court conducted an evidentiary hearing in September 2018. It was established at the hearing that on September 23, 2011 (three months before Curtiss' death), the Foundation was administratively dissolved, and was not reinstated until July 9, 2012 (seven months after Curtiss' death). Charles testified at the hearing and acknowledged he never funded the Foundation (even though he was in control of the Trust funds), opened a bank account for the Foundation, or filed any Foundation paperwork with the IRS. Instead, he explained that in 2018 (seven years after his brother's death), the Foundation was now "ready" to be funded.

Following the hearing, the court concluded that the Foundation "was not in existence" when Curtiss died because it had been administratively dissolved three months before his death and had not been reinstated until seven months after his death. The court further concluded that the Foundation was a "non-functioning option" and that Charles, as Trustee, "failed to fund the Foundation, open a bank account for the Foundation or file the necessary Foundation filings with the IRS."

Based upon this determination, and consistent with the express provision of the Trust, the court entered an order requiring Charles (as Trustee) "to forward to Fellowship House, as the Trust residual beneficiary ... all assets and monies in the Trust Estate ...." This appeal followed

Analysis

There is competent substantial evidence to support the trial court's determination that the Foundation was "no longer in existence" on December 27, 2011, the date Curtiss died. Charles concedes that, at the time of Curtiss' death, the Foundation had been administratively dissolved and was not reinstated until July 9, 2012, seven months later. Nevertheless, Charles contends that the trial court erred in equating the Foundation's administrative dissolution with it being "no longer in existence" as provided in the Trust. Charles relies on section 607.1421(3), Florida Statutes (2011), which provides in part that "a dissolved corporation continues its corporate existence." However, the statute reads in its entirety:

A corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under s. 607.1405 and notify claimants under s. 607.1406.

(Emphasis added).

Given the fact that the Foundation had been administratively dissolved on the date of Curtiss' death (in addition to the other evidence regarding the Foundation's non-functioning status), the trial court properly determined the Foundation was no longer in existence, and on the date of Curtiss' death was authorized only "to wind up and liquidate its business and affairs."

Additionally, Charles contends that because the Foundation was reinstated ten months after it was administratively dissolved (and seven months after Curtiss' death), the trial court erred in not relating back the reinstatement to the date of the administrative dissolution, thereby treating the Foundation as if it had never been administratively dissolved. Charles relies for this proposition on section 607.1422, Florida Statutes (2011), which provides in pertinent part:

(1) A corporation administratively dissolved under s. 607.1421 may apply to the Department of State for reinstatement at any time after the effective date of dissolution. The corporation must submit a reinstatement form prescribed and furnished by the Department of State or a current uniform business report signed by the registered agent and an officer or director and all fees then owed by the corporation, computed at the rate provided by law at the time the corporation applies for reinstatement.
(2) If the Department of State determines that the application contains the information required by subsection (1) and that the information is correct, it shall reinstate the corporation.
(3) When the reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.

(Emphasis added.)

However, we hold that this statutory provision does not apply to the issue presented here: a determination of whether, at a fixed point in time (the date of Curtiss' death), the Foundation "was no longer in existence" as instructed by the Trust's time-certain testamentary provision.

Were we to apply the relation-back provision of section 607.1422 to the instant circumstance, as urged by Charles, the administration of an estate might never achieve finality, because an administratively dissolved beneficiary might (at some unknown point in the future) be reinstated and seek application of the relation-back provision to establish its nunc pro tunc existence. As Fellowship House aptly noted in its brief: "To assume the ability to perpetually reinstate the Foundation by [Charles] (or anyone else for that matter) after the death of Curtiss renders meaningless the testamentary instruction, as the Foundation could, quite possibly, always be in existence as long [as] someone prospectively filed the necessary annual reports and paid the delinquent fees."

We agree, and recognize that "a basic tenet in the construction of trusts is to ascertain the intent of the settlor and to give effect to this intent." Arellano v. Bisson, 847 So.2d 998, 1000 (Fla. 3d DCA 2003) (citing Bacardi v. White, 463 So.2d 218, 221 (Fla. 1985) ). The question presented here is not whether the Foundation could, post-reinstatement, resume "carrying on its business as if the administrative dissolution had never occurred." § 607.1422(3), Fla. Stat. (emphasis added). Instead, the very different question is whether, at a precise point in time, the Foundation was "no longer in existence." The affirmative answer to this question triggered an expressed Trust directive, requiring the Trustee to "distribute all of the remaining trust estate to the FELLOWSHIP HOUSE" rather than to the Foundation.

To apply the relation-back provision of section 607.1422 to this determination would unquestionably frustrate Curtiss' intent as set forth in the Trust, rendering it incompatible with the paramount rule of testamentary construction. See Sorrels v. McNally, 89 Fla. 457, 105 So. 106, 109 (1925) (holding: "To ascertain and give effect to the intent of the testator is the cardinal rule of testamentary construction.")

Affirmed.

      This nonfinal order is appealable pursuant to Florida Rule of Appellate Procedure 9.170(b)(15) (authorizing appeals in probate cases from orders that "make distributions to any beneficiary").

      Although Charles asserted that the Foundation was "in good standing" with the IRS, he offered no documents or other evidence to corroborate this assertion, and failed to provide any such documents in response to the Foundation's discovery requests seeking production of same.


author: PER CURIAM.

text:
    MC TRUST, etc., Appellant, v. Solita Cohen DE MISHAAN, etc., Appellee.
    No. 3D18-211
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019 Rehearing Denied May 08, 2019
    Philip D. Parrish, P.A., and Philip D. Parrish ; Scale Law and Jaime D. Guttman, for appellant.
    Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten ; Raquel A. Rodriguez, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   PER CURIAM.

Steven Mishaan ("Steven"), as trustee and on behalf of MC Trust, appeals a final judgment dismissing with prejudice his action against Solita Cohen de Mishaan ("Solita"), individually and as trustee of MC Trust, for lack of personal jurisdiction and, alternatively, on the basis of forum non conveniens. We affirm.

After an evidentiary hearing, the trial court determined that it did not have personal jurisdiction over Solita because she is not a resident of Florida and because Steven failed to meet his burden of establishing that she had the requisite minimum contacts with the State of Florida or that the alleged actionable tort was committed in Florida. Upon our review of the evidentiary hearing transcript and the record on appeal, we agree. See § 48.193(2), Fla. Stat. (2017) ; § 736.0202(2), Fla. Stat. (2017) ; Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989) ; Machtinger v. Inertial Airline Servs., Inc., 937 So.2d 730, 734 (Fla. 3d DCA 2006).

Affirmed.

      Because we affirm the trial court's order on the basis of lack of personal jurisdiction, we do not reach the merits of the forum non conveniens issue.

      We affirm without comment the other issues raised on appeal.


text:
    Dwayne M. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-369
    District Court of Appeal of Florida, Third District.
    Opinion filed April 17, 2019
    Dwayne M. Williams, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   PER CURIAM.

Affirmed. See State v. Enmund, 476 So.2d 165, 166 (Fla. 1985) ("[A] defendant can be convicted of and sentenced for both felony murder and the underlying felony.").


text:
    Milagros RODRIGUEZ, Appellant, v. Griselda STANFIELD, Appellee.
    No. 3D19-117
    District Court of Appeal of Florida, Third District.
    Opinion filed April 17, 2019. Rehearing Denied April 30, 2019
    Milagros Rodriguez, in proper person.
    Walter J. Harvey, School Board Attorney, and Jeff James, Assistant School Board Attorney, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   PER CURIAM.

Upon our review of the record and the initial brief, we affirm on the authority of Florida Rule of Appellate Procedure 9.315(a) (providing: "After service of the initial brief ..., the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated.")


text:
    Francisco VENTURA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2411
    District Court of Appeal of Florida, Third District.
    Opinion filed April 17, 2019. Rehearing Denied May 9, 2019
    Francisco Ventura, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   PER CURIAM.

The trial court's order denying Appellant's motion to dismiss on the basis of Stand-Your-Ground immunity, which was entered after an evidentiary hearing, is affirmed. The appeals of the orders denying the motion to dismiss for violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the motion to protect all of the accused's constitutional rights, and the motion to identify subject matter jurisdiction are dismissed for lack of jurisdiction.

Affirmed.


text:
    Frank EVANS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D19-562
    District Court of Appeal of Florida, Third District.
    Opinion filed April 17, 2019. Rehearing Denied May 9, 2019
    Frank Evans, in proper person.
    Ashley Moody, Attorney General, for respondent.
    Before EMAS, C.J., and SCALES and MILLER, JJ.
   PER CURIAM.

Frank Evans filed a petition for writ of habeas corpus, alleging his appointed appellate counsel rendered ineffective assistance by failing to raise certain claims on the direct appeal from Evans' conviction and sentence for aggravated battery. Included in Evans' petition are claims that appellate counsel (1) failed to raise several instances of trial counsel's ineffective assistance; and (2) failed to raise an unpreserved error (the trial court's failure to provide the jury with a written version of the final instructions delivered orally to the jury).

We deny the petition, as each of Evans' asserted claims is without merit. See Gomez v. State, 273 So.3d 156, 2019 WL 692912 (Fla. 3d DCA Feb. 20, 2019) (holding a claim of ineffective assistance of trial counsel is generally not cognizable on direct appeal); Smith v. State, 194 So.3d 483, 488 n. 2 (Fla. 3d DCA 2016) (same). See also Spencer v. State, 842 So.2d 52, 73 (Fla. 2003) (holding appellate counsel cannot be deemed ineffective for failing to raise an error not preserved for appeal, unless the unpreserved error is fundamental); Nibert v. State, 508 So.2d 1, 3 (Fla. 1987) (holding that failure to provide jury with written jury instructions was not fundamental error and was waived on direct appeal where not properly preserved).

Petition denied.

      We deny Evans' other claims without further discussion.


text:
    Mike MCGLOCKLIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2466
    District Court of Appeal of Florida, Third District.
    Opinion filed April 17, 2019
    Mike McGlocklin, in proper person.
    Ashley Moody, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and SALTER and LOGUE, JJ.
    ON ORDER TO SHOW CAUSE
   PER CURIAM.

On October 3, 2018, the Court affirmed the denial of Mike McGlocklin's petition for writ of habeas corpus. On the same date, the Court ordered McGlocklin to show cause why he should not be prohibited from filing further pro se appeals, petitions, motions, or other pleadings in this Court relating to lower tribunal case F00-19296.

Upon consideration of McGlocklin's response to the order to show cause and the successive, duplicative, pro se petitions and appeals brought by McGlocklin, we conclude that good cause has not been shown. McGlocklin has engaged in the filing of meritless, frivolous, and successive claims, continuing to seek relief from this Court notwithstanding prior adverse determinations on the merits.

In accordance with State v. Spencer, 751 So.2d 47 (Fla. 1999), and Concepcion v. State, 944 So.2d 1069 (Fla. 3d DCA 2006), McGlocklin is prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his conviction, judgment, and sentence in lower tribunal case F00-19296. We direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to the circuit court case number unless they have been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing. See Whipple v. State, 112 So.3d 540 (Fla. 3d DCA 2013).

Additionally, any such further and unauthorized pro se filings by McGlocklin may subject him to appropriate sanctions, including the issuance of written findings forwarded to the Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2018).


author: Rowe, J.

text:
    Norman J. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-403
    District Court of Appeal of Florida, First District.
    April 22, 2019 Rehearing Denied July 1, 2019
    Norman James Thompson, pro se, Appellant.
    Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

Norman Thompson was convicted in 2013 for the sexual battery of a six-year-old girl and sentenced to life imprisonment. After his judgment and sentence were affirmed, Thompson v. State , 174 So.3d 453 (Fla. 1st DCA 2015), Thompson moved for postconviction relief, raising multiple claims of ineffective assistance of counsel. The postconviction court summarily denied his motion, and this appeal follows. We affirm.

Facts

The investigation that led to Thompson's arrest began when a homeless man named Dwayne Lampley reported to police that a mother was prostituting her six-year-old daughter (S.G.) for drugs and money. Lampley was a drug addict who would go to the mother's residence to do drugs. Lampley described the house as a "crack house" where the children (S.G. and her younger brother) were neglected. The children were frequently unclean, without clothing, and hungry because they didn't have enough food. Lampley witnessed at least seven men, including Thompson (whom he knew as "NJ"), "mess" with S.G. He did not see Thompson physically molest the child but recalled once seeing Thompson give S.G. a bath. He also saw Thompson grab the child on her thigh and then chase her upstairs. Lampley reported the child's living conditions to the police after S.G. asked Lampley to help her and her mother.

S.G., who was living with her grandmother at the time, was interviewed by an investigator from the Department of Children and Families. S.G. initially denied any abuse. But S.G.'s grandmother suspected that the child had denied the abuse out of fear. The grandmother's suspicions arose from her discovery of an unusual discharge in the child's underwear during a visit months before DCF began its investigation of the mother. When the grandmother learned that DCF was investigating potential abuse, she asked her granddaughter if anyone had touched her other than her family. S.G. told her grandmother that "NJ" and two other men had touched her. She said that "NJ" would lie on top of her and "wiggle." S.G. added that "NJ" was her "boyfriend" but that she was not supposed to tell her mother about their relationship. The grandmother knew that "NJ" had rented one of the rooms in her daughter's house for a time.

Following S.G.'s disclosures to the grandmother, the grandmother took S.G. to a second interview with the Child Protection Team. During the interview, S.G. recounted her sexual battery by three men, including one called "NJ." S.G. stated that "NJ" placed his "weenie" on her "coochie." S.G. picked all three men out of a lineup and identified Thompson as "NJ." Thompson was arrested and charged with sexual battery on a child less than the age of twelve.

At trial, S.G.'s mother admitted to a long-term addiction to crack cocaine and recalled that Thompson would come to her house to do drugs. Thompson also lived in the house for a short period of time. S.G. never reported abuse to the mother, and the mother never saw Thompson physically abuse S.G. The mother did, however, recall once walking in on Thompson giving S.G. a bath. When she confronted him about it, Thompson insisted that it was not "a big deal" and he "was just urinating." Another night, she saw Thompson in S.G.'s bedroom crouched beside the bed holding S.G. in his arms. The mother noted that both Thompson and S.G. were clothed at the time. Thompson claimed he was comforting S.G. after waking from a bad dream. The mother recalled another instance where she found candy, unopened children's movies, children's toys, and a douche in Thompson's suitcase.

S.G.'s interview with the Child Protection Team was played for the jury. S.G. also testified via a prerecorded video. At the time of her perpetuated testimony, she was in first grade. S.G. testified that when she lived with her mother, men would come over to "smoke." "NJ" would bring her candy and snacks and told her that he was her "boyfriend." "NJ" once told her to get on the bed, then got on top of her and put his "weenie" in her. S.G. used anatomical dolls to demonstrate what "NJ" did to her.

In the video of S.G.'s perpetuated testimony, defense counsel cross-examined S.G. The child could not recall seeing "NJ's" "private part," or seeing Thompson or her mother without clothes. She did not tell her mother about the bad things happening to her, but she did tell her grandmother. S.G. did not recall talking to police or other officials with uniforms or badges.

The jury returned a verdict finding Thompson guilty as charged. Thompson was sentenced to life imprisonment and designated a sexual predator. Following the summary denial of his motion for postconviction relief, Thompson appealed to this Court.

Analysis

We review the summary denial of a postconviction motion de novo. Flagg v. State , 179 So.3d 394, 396 (Fla. 1st DCA 2015). We affirm the summary denial of a motion alleging claims of ineffective assistance of counsel where the claims are legally insufficient or conclusively refuted by the record. Crumitie v. State , 842 So.2d 271, 273 (Fla. 1st DCA 2003). To raise a legally sufficient claim, the movant must allege that counsel's performance was outside the range of reasonable professional assistance, and there is a reasonable probability that the outcome would have been different but for counsel's deficient performance. Curran v. State , 229 So.3d 1266, 1268-69 (Fla. 1st DCA 2017) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). If a legally sufficient claim is raised, "the trial court must attach portions of the record that conclusively refute the claim[ ] in order to properly issue a summary denial." Ortiz v. State , 968 So.2d 681, 684 (Fla. 1st DCA 2007). Because there was no evidentiary hearing in this case, we accept the factual allegations as true to the extent they are not refuted by the record. Nordelo v. State , 93 So.3d 178, 186 (Fla. 2012). Here, Thompson raised twelve claims of ineffective assistance of counsel, all of which are either legally insufficient or conclusively refuted by the record.

Thompson argued that his defense counsel was ineffective for failing to challenge Lampley's affidavit, which was used to establish probable cause for Thompson's arrest. Thompson asserted that Lampley did not write the affidavit and was not administered an oath, therefore the affidavit was invalid. The trial court denied this claim because Thompson failed to allege what he believed defense counsel should have done to challenge the validity of Lampley's affidavit. Assuming Thompson intended to argue counsel was ineffective for failing to move to dismiss the charges for a lack of probable cause, "an indictment or information may not be dismissed by a trial court on the ground that the police unlawfully arrested the defendant based on no probable cause." State v. Spencer , 443 So.2d 1086, 1086 (Fla. 3d DCA 1984). Moreover, the record reflects that the arrest warrant was supported by sufficient probable cause. "Unlike the burdens of proof in a criminal trial, the obligation to establish probable cause in an affidavit may be met by hearsay, by fleeting observations, or by tips received from unnamed reliable informants whose identities often may not lawfully be disclosed, among other reasons." Johnson v. State , 660 So.2d 648, 654 (Fla. 1995) (citations omitted). Here, the arrest affidavit indicates that it was based not only on Lampley's affidavit, but also the detective's independent investigation of the alleged crimes. That investigation included listening to S.G.'s recorded interview, during which the child named Thompson as one of the men who sexually battered her. Because the arrest warrant was supported by probable cause, any challenge based on the credibility of Lampley's affidavit would have been meritless. Counsel cannot be deemed ineffective for filing a meritless motion. Lugo v. State , 2 So.3d 1, 21 (Fla. 2008). Therefore, the trial court properly denied this claim.

Thompson next claimed that his defense counsel was ineffective for failing to object to the jury composition where the State struck every African-American juror from the jury panel. The trial court properly summarily denied this claim as legally insufficient. Postconviction relief predicated on the failure to raise a Neil objection cannot be granted unless counsel's error resulted in a jury that was not impartial. Carratelli v. State , 961 So.2d 312 (Fla. 2007) ; Pryear v. State , 243 So.3d 479, 483-83 (Fla. 1st DCA 2018). Thompson failed to allege that the jury selected was not impartial. He was given an opportunity to amend this claim but failed to remedy the defect. See Nelson v. State , 977 So.2d 710, 711 (Fla. 1st DCA 2008) (" Spera [v. State , 971 So.2d 754 (Fla. 2007),] does not impose on trial courts or court personnel the nearly impossible burden to ... explain why the claims are insufficient or how to cure the insufficiency."). Thus, the trial court properly denied this claim.

In his next claim, Thompson argued that his defense counsel was ineffective for failing to investigate the case and adequately prepare for trial. Thompson asserted that if counsel had spent more time with him, counsel would have learned information, which if used at trial, would have led to a different outcome. This claim was properly denied. Thompson claimed that counsel would have learned that the State's witnesses were tampered with to give false and misleading statements, and S.G.'s testimony was coached. But he gave no further details about who was tampering with the witnesses or facts to support his claim that S.G. was coached. The conclusory nature of these allegations rendered this claim legally insufficient. Mohr v. State , 17 So.3d 1249, 1249 (Fla. 2d DCA 2009). Thompson also claimed that had counsel adequately prepared for trial, he would have learned that the State edited the videos shown at trial to exclude a portion of the video during which S.G. allegedly recanted and the portion containing defense counsel's cross-examination of S.G. However, this allegation is refuted by Thompson's own admission that the trial transcript showed those portions of the video were played for the jury. Thompson further contended that counsel would have learned other relevant information to aid in his defense, including the fact that Thompson was an acquaintance of S.G.'s family, and Lampley was a police informant. That Thompson was an acquaintance of S.G.'s family does not create reasonable doubt as to his guilt. And he failed to explain how discovery of Lampley's status as a police informant would have changed the outcome of the case. Thompson did not establish that there was a reasonable probability the result of the trial would have been different had the jury heard this information. See Strickland , 446 U.S. at 694, 104 S.Ct. 2052. Accordingly, the trial court properly denied this claim.

Thompson next claimed that his defense counsel was ineffective for failing to object to the playing of edited versions of the recorded videos. He contended that the videos played for the jury omitted the portion of the Child Protective Team interview where S.G. allegedly recanted and the cross-examination portion of S.G.'s perpetuated testimony. However, Thompson conceded that the trial transcript shows these portions of the videos were played for the jury. As the record conclusively refutes this claim, the trial court properly denied it. See Crumitie , 842 So.2d at 273.

Next, Thompson claimed that his defense counsel was ineffective for failing to object to what he argued were two instances of false testimony. He essentially raised two Giglio claims, both of which the trial court denied as legally insufficient.

To allege a legally sufficient Giglio claim, a defendant must demonstrate that the trial testimony was false, the prosecutor knew it was false, and the testimony was material. Clemmons v. State , 1 So.3d 1256, 1256 (Fla. 4th DCA 2009). Thompson alleged that the detective gave false testimony regarding S.G.'s identification of Thompson at a photo-line up. But he failed to allege that the detective deliberately lied, that the prosecutor knew the detective lied, or that defense counsel had reason to believe the detective lied. Id. Although Thompson was given an opportunity to amend this claim to remedy the pleading deficiencies, he failed to do so. See Nelson , 977 So.2d at 711 ("Although a trial court in its discretion may grant more than one opportunity to amend an insufficient claim, Spera does not mandate repeated opportunities."). Thompson also asserted that Lampley provided false testimony in that his trial testimony was inconsistent with his deposition testimony. However, inconsistent testimony does not equate to false testimony. Moreover, counsel's performance with respect to Lampley was not deficient, as the record reflects that he cross-examined Lampley about these inconsistencies. As both legally insufficient and conclusively refuted by the record, the trial court properly denied this claim. See Crumitie , 842 So.2d at 273.

In his next claim, Thompson argued that his counsel was ineffective for failing to impeach Lampley, whom Thompson describes as the State's "key witness." The trial court properly denied this claim because Thompson failed to establish either deficient performance or prejudice. The record shows defense counsel cross-examined Lampley about his known drug use and unstable life and questioned him about the inconsistencies in his story. Thompson did not suggest what line of testimony would have been more effective in impeaching Lampley "or how the failure to do so affected his trial." See Mohr v. State , 17 So.3d 1249, 1249 (Fla. 2d DCA 2009). Moreover, there is no reasonable probability that impeaching Lampley would have changed the outcome of the case in light of S.G.'s perpetuated testimony and where Lampley never testified that he saw Thompson sexually abuse the child. See Kormondy v. State , 983 So.2d 418, 432-33 (Fla. 2007) (finding failure to impeach state witnesses was not ineffective where there was sufficient evidence of guilt). Therefore, the trial court properly denied this claim.

Thompson next claimed that his defense counsel was ineffective for failing to call an expert witness to testify generally about child sexual abuse. Defense counsel retained an independent medical expert to examine S.G. and, although the expert was under subpoena, defense counsel decided not to call the expert at trial. The trial court properly denied this claim as conclusively refuted by the record. During Thompson's case-in-chief, the court inquired whether Thompson agreed with counsel's decision not to call the independent medical expert. Thompson indicated three times that he agreed with defense counsel's decision. "An appellant is not entitled to go behind sworn representations made to the court in a postconviction proceeding." Davis v. State , 938 So.2d 555, 557 (Fla. 1st DCA 2006). Accordingly, this claim was properly denied.

Next, Thompson claimed that his defense counsel was ineffective for failing to present evidence that there were "more culpable" defendants. Thompson asserted there were two other defendants, tried separately, who also abused the child. The trial court denied this claim as legally insufficient, explaining "the Court is unaware of any legally valid defense that would have excused or mitigated the Defendant's abuse of the child simply because other persons may have also abused her."

We agree. That there were two other men who may have also abused the child would be irrelevant to the jury's determination of whether Thompson abused the child. Their actions, even if more "culpable," would not excuse or mitigate Thompson's culpability. There is no reasonable probability that such evidence would have changed the outcome of the trial. Spencer v. State , 842 So.2d 52, 61 (Fla. 2003). Thus, the trial court properly denied this claim.

Thompson next claimed that his defense counsel was ineffective for failing to call him as a witness to testify on his own behalf. The trial court denied this claim as conclusively refuted by the record because Thompson indicated at trial that it was his decision not to testify. Indeed, during a lengthy colloquy, Thompson informed the trial court that he had sufficient time with counsel to discuss his decision not to testify. He confirmed that counsel had answered all his questions and that it was his own decision not to testify. Thompson cannot now go behind his sworn representations to claim that counsel was ineffective for failing to call him as a witness. Davis , 938 So.2d at 557. Moreover, Thompson cannot demonstrate that his proposed testimony, including hearsay that the grandmother coached S.G. and Lampley was an unreliable witness, would have changed the outcome of the trial. Because Thompson cannot go behind his sworn representations and offered no facts to which he could have testified that would have affected the outcome of the trial, the trial court properly denied this claim.

Thompson also claimed that his defense counsel was ineffective for failing to object to the giving of jury instructions on the lesser-included crimes of attempted sexual battery and battery because there was no evidence to support those charges. He argued counsel's failure to object to the jury instructions prevented the jury from the possibility of exercising its pardon power. The trial court properly denied this claim as legally insufficient because it is the inclusion of lesser-included jury instructions that allows the jury to exercise its pardon power. We also reiterate that, as a matter of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland . Johnson v. State , 247 So.3d 689, 697 (Fla. 1st DCA 2018) (quoting Sanders v. State , 946 So.2d 953, 960 (Fla. 2006) ).

In his next claim, Thompson argued that his defense counsel was ineffective for failing to object to what Thompson classified as three improper arguments made by the State during its closing argument. The trial court denied this claim as conclusively refuted by the record. Our review of the record confirms there was nothing improper about the State's closing. With respect to the first comment, Thompson asserted the prosecutor improperly "vouched" for the credibility of State witnesses Lampley, S.G., and S.G.'s mother. "Improper prosecutorial 'vouching' for the credibility of a witness occurs where a prosecutor suggests that she has reasons to believe a witness that were not presented to the jury, or, stated differently, where the prosecutor implicitly refers to information outside the record." Jackson v. State , 89 So.3d 1011, 1018 (Fla. 4th DCA 2012). Here, the prosecutor explained why the jury should believe the witnesses based on the substance of their testimony at trial. The prosecutor neither expressed personal belief nor referred to information or knowledge outside the record.

The second argument Thompson made in relation to this claim was that the prosecutor made personal attacks on him. "It is improper for a prosecutor to refer to the accused in derogatory terms, in such manner as to place the character of the accused in issue." Pacifico v. State , 642 So.2d 1178, 1183 (Fla. 1st DCA 1994) (citation omitted). Thompson did not identify which of the prosecutor's comments amounted to a personal attack. This alone is reason to deny his claim. Even so, there are only two comments Thompson could be referencing: "You know, when you decide to rape children in a crack house you're going to get different versions about what happened in that crack house because they're all high smoking crack every day" and the prosecutor's argument that Thompson, as a "human being addicted to crack cocaine," would not have had candy and toys in his bag for any other reason than to entice the child. Viewed in context, these comments do not amount to improper personal attacks on Thompson's character, but rather reasonable arguments based on the evidence presented at trial that Thompson committed the sexual acts at a "crack house" and S.G.'s testimony that "NJ" gave her candy and toys. See Lubin v. State , 963 So.2d 822, 824 (Fla. 4th DCA 2007) (noting that when evaluating a prosecutor's comment for impropriety, the comment "should be examined in the context in which it is made"). Any objection to the prosecutor's arguments would have been meritless, and counsel cannot be ineffective for the failure to raise a meritless objection. Owen v. State , 986 So.2d 534, 551 (Fla. 2008).

Thompson also argued the prosecutor made a "golden rule" argument, and defense counsel was ineffective for failing to move for a mistrial. A golden rule argument is one that asks the jurors to put themselves in the place of the victim or to imagine the pain or fear of the victim. Pagan v. State , 830 So.2d 792, 812 (Fla. 2002). Because the record shows that no such argument was made, the trial court properly denied this claim as conclusively refuted by the record. See Crumitie , 842 So.2d at 273.

In his final claim, Thompson argued that his defense counsel was ineffective for failing to timely move for a new trial. The trial court properly denied this claim as legally insufficient. Although Thompson specified the grounds that counsel should have raised in a timely motion for new trial, Thompson failed to demonstrate there was a reasonable probability that, had it been filed, the motion would have been granted. Lamb v. State , 124 So.3d 953, 957 (Fla. 2d DCA 2013). After being given an opportunity to amend this claim, Thompson failed to remedy the pleading defect. Nelson , 977 So.2d at 711.

Because Thompson's claims were legally insufficient or conclusively refuted by the record, we affirm the trial court's summary denial of his motion for postconviction relief.

Bilbrey and Winsor, JJ., concur.

      We take judicial notice of this Court's records in Thompson's direct appeal. See Floyd v. State , 257 So.3d 1148, 1153 n.* (Fla. 1st DCA 2018).

      In his postconviction motion, Thompson raised a thirteenth claim of cumulative error. Because Thompson did not argue cumulative error in his initial brief, we cannot consider the claim. See Williams v. State , 845 So.2d 987 (Fla. 1st DCA 2003).

      State v. Neil , 457 So.2d 481 (Fla. 1984).

      Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), provides a remedy where the State has knowingly presented perjured testimony at trial.


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    MEGACENTER US LLC, etc., Appellant, v. GOODMAN DORAL 88TH COURT LLC, etc., Appellee.
    No. 3D18-519
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019 Rehearing Denied May 9, 2019
    Duane Morris, LLP, Alvin D. Lodish, and Richard D. Shane, Miami for appellant.
    Weiss Serota Helfman Cole & Bierman, P.L. and Edward G. Guedes and Eric P. Hockman, Coral Gables for appellee.
    Before EMAS, C.J., and SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

Megacenter US, LLC., ("Megacenter") appeals the trial court's order on Megacenter's motion for rehearing as to the trial court's corrected summary final judgment dated January 3, 2018, and corrected summary final judgment. On the issue of notice, we find that Florida law supports Megacenter's position that it substantially complied with the notice requirement in the subject Purchase and Sale Agreement. We find further that the purchase and sale agreement at issue in this case provided for automatic termination on the record presented. We thus reverse and remand for entry of summary judgment in Megacenter's favor.

On January 26, 2017, Goodman Doral 88th Court, LLC., ("Goodman"), the seller, entered into a contract with Megacenter, the purchaser, for the purchase of real property located in the City of Doral, Florida ("City"). Megacenter made a $ 250,000.00 initial deposit, as required by the parties' purchase and sale agreement ("Agreement"). The purchase price for the property was $ 10,500,000.00. Megacenter delivered the initial deposit to an escrow agent, as required by paragraph 3 of the Agreement.

Megacenter's intention was to use the property for a self-storage facility, so it notified Goodman of its intent. Megacenter let Goodman know that if the property could not be used as a self-storage facility, it would not purchase the property. When the parties entered into the Agreement, the parties did not know if the City's zoning allowed the property to be used as a self-storage facility. On March 10, 2017, Megacenter requested that the City issue Megacenter a zoning verification letter letting Megacenter know if the subject property could be used for this purpose.

In the Agreement between Goodman and Megacenter, the parties negotiated the provisions by which Megacenter could terminate the Agreement and recover its deposit. Paragraph 3 of the Agreement stated:

3. Deposit . To secure the performance of Purchaser's obligations under this Agreement, within two (2) Business Days after the Effective Date of this Agreement, Purchaser shall deliver by wire transfer to Chicago Title Insurance Company, as escrow agent ("Escrow Agent "), an initial deposit ("Initial Deposit ") in the amount of TWO HUNDRED FIFTY THOUSAND and 00/100 DOLLARS ($ 250,000.00), the proceeds of which shall be held in trust as an earnest money deposit by Escrow Agent, and disbursed only in accordance with the terms of this Agreement. On or before the expiration of the Inspection Period, if Purchaser does not terminate (or is not deemed to have terminated) this Agreement pursuant to the provisions hereof, Purchaser shall deliver to Escrow Agent, an additional deposit ("Additional Deposit ") in the amount of SEVEN HUNDRED FIFTY THOUSAND and 00/100 DOLLARS ($ 750,000.00).... In the event that Purchaser does not deliver the Additional Deposit to Escrow Agent on or before the expiration of the Inspection Period, the same shall be deemed a termination of this Agreement within the Inspection Period and the Agreement shall be terminated, whereupon all parties shall be released from all further obligations under this Agreement, except for obligations that expressly survive termination of this Agreement. The Initial Deposit and the Additional Deposit (as, if and when made) shall collectively be referred to herein as the "Deposit ". ... Seller and Purchaser have entered into a separate escrow agreement with Escrow Agent with respect to the Deposit.

(emphasis in original). Thus, the Agreement would terminate automatically if Megacenter did not provide the $ 750,000.00 Additional Deposit on or before the end of the "Inspection Period" as defined within the Agreement.

Paragraph 7 of the Agreement, which governs Megacenter's right to inspect the property, stated:

7. Inspection Period/AS IS Purchase . Purchaser shall have until 5:00 p.m. on the forty-fifth (45th) day following the Effective Date (the "Inspection Period") to make such physical, structural, legal, zoning, title, survey, land use, environmental, topographical and other examinations, inspections and investigations of the Property which Purchaser, in Purchaser's sole discretion has determined to make. In the event Purchaser is not satisfied with the Property, in Purchaser's sole discretion, Purchaser may cancel this transaction by written notice of cancellation given to both Seller and the Escrow Agent prior to the expiration of the Inspection Period, in which event, the Escrow Agent shall return the Deposit and all interest earned thereon to Purchaser, whereupon both parties shall be released from all further obligations under this Agreement except those that expressly survive. In the event Purchaser has not so timely delivered written notice of cancellation, then the foregoing condition precedent shall automatically be deemed to be satisfied in full and Purchaser's right of termination shall be deemed waived. ... In electing to enter into this Agreement, Purchaser shall purchase the Property in its "AS IS" condition and situation as of the Effective Date, including the physical, legal, and environmental condition and status of the Property. Purchaser expressly agrees that the Property will be conveyed by Seller without any representations, warranties or guarantees of any nature whatsoever, express or implied, except to the extent of any representations expressly set forth herein or in any document delivered by Seller in connection with the Closing. ... The provisions of this paragraph shall survive Closing and the early termination of this Agreement.

Accordingly, this provision allowed Megacenter to terminate the Agreement, at Megacenter's sole discretion, if it was not satisfied with the subject property, by providing written notice of cancellation to Goodman by the end of the inspection period.

Paragraph 17 of the Agreement addressed "Notices" and stated:

17. Notices . Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered (i) by registered or certified mail, return receipt requested, postage prepaid, (ii) by hand delivery, (iii) by recognized overnight courier (such as Federal Express), or (iv) by facsimile with confirmed receipt, and addressed as follows: ..."

The Agreement stated that notices to the seller must be sent to Goodman's physical address with a copy to its counsel. Paragraph 17 further noted:

Notice shall be deemed given when delivered or upon refusal to accept delivery, and may be given on behalf of any party by its respective counsel. A copy of any written notice sent by either party to the other shall also be sent to all parties above via electronic mail at the addresses set forth above simultaneously with the sending of such notice via the delivery methods described above.

Under the Agreement, the "Inspection Period" expired at 5:00 p.m. on March 13, 2017. On Friday, March 10, 2017, the last business day before the expiration of the inspection period, Megacenter still did not know if the City would permit the property to be used as a self-storage facility. Megacenter thus requested an extension of the inspection deadline. Consequently, Megacenter and Goodman executed the "First Modification to Purchase and Sale Agreement." This First Modification extended the Inspection Period by four extra days, so the deadline was now March 17, 2017 at 5:00 p.m., allowing Megacenter the additional time to obtain the zoning letter from the City. The First Modification stated:

Seller has agreed to extend the Inspection Period until 5:00 PM on March 17, 2017 to permit Purchaser the opportunity to obtain the Zoning Letter". [sic] If Purchaser is unable to obtain a Zoning Letter that is reasonably satisfactory to Purchaser and provides evidence of such rejection to Seller, Purchaser shall have the right to terminate the Agreement during the Inspection Period pursuant to the provisions of Section 7 of the Original Agreement.

The First Modification further stated: "Purchaser has requested an extension to the Inspection Period for the sole purpose of obtaining Zoning Letter[.]" The First Modification also outlined that "[i]n the event of inconsistency between the provisions of this Modification and the provisions of the Original Agreement, the terms of this Modification shall govern and control." The First Modification provided: "Except as hereby modified, all of the provisions of the Original Agreement are hereby ratified and confirmed and shall be and remain in full force and effect, and the same are enforceable in accordance with their terms."

It is undisputed that on March 17, 2017, at 4:23p.m., Megacenter representative Pablo Wichman emailed Goodman's counsel, Joseph Hernandez, Esq., advising Goodman that Megacenter had not received the zoning letter from the City. The email further notified Goodman that if Megacenter did not receive a signed second modification to the Agreement by 5:00 p.m. that day, then Megacenter would terminate the Agreement. The email contained an attachment, a proposed "Second Modification to Purchase and Sale Agreement" to extend the deadline to March 22, 2017. Mr. Wichman stated in the email: "I apologize for the short notice, but if we have not received a response by 5 PM we will terminate the contract with the firm intention to reinstate once we receive the letter." Neither Goodman nor his counsel responded to Megacenter's email before the deadline. At 5:00 p.m., Megacenter emailed Goodman with formal notice of termination. At 5:07 p.m., Goodman's counsel responded to Mr. Wichman, acknowledging receipt of Mr. Wichman's notice of termination and indicating he would review the correspondence and discuss it with Goodman. Megacenter did not make the "Additional Deposit" of $ 750,000.00 before the end of the Inspection Period (as extended by the First Modification).

Thereafter, also on March 17, 2017, at 6:55pm, Goodman's representative, Alan Cockburn, responded to Megacenter's request for a second extension of the deadline by stating: "Please would you send us a copy of your request for a zoning verification. We will then be happy to extend until 22 April. Roger and Joe, please advise whether we can do so by signing the second modification or if a reinstatement agreement is required."

On March 20, 2017, Megacenter received the City's response confirming that the property in question was suitable as a self-storage facility. Thus, Megacenter did not learn if the subject property was suitable for its desired use until after the Agreement was terminated. Megacenter demanded the return of its $ 250,000.00 initial deposit, which Goodman refused. Megacenter then filed a one-count complaint for breach of contract for the return of its deposit. Goodman responded with an Answer, one affirmative defense, and a counterclaim asserting a claim for declaratory judgment and a claim for breach of contract.

Both sides moved for summary judgment, claiming there were no disputed issues of material fact. Megacenter argued that it was entitled to summary judgment because it timely and properly terminated the Agreement, and in addition, it terminated the Agreement by non-payment of the $ 750,000.00 Additional Deposit. Goodman's cross-motion for summary judgment alleged that under the First Modification, Megacenter could only terminate the Agreement by providing the notice required by paragraph 7. Goodman alleged that Megacenter failed to provide that notice.

At the hearing on the parties' motions for summary judgment, the trial court denied Megacenter's motion for summary judgment on its breach of contract claim and granted Goodman's motion for summary judgment on its counterclaims for declaratory judgment and breach of contract. In its written summary judgment order, the trial court held that:

"[U]nder the plain language of the First Modification Agreement, Megacenter could terminate the Purchase Agreement prior to the expiration of the Inspection Period only by providing prior written [sic] in specified forms and to all individuals named, pursuant to Section 7 of the Original Agreement, that included evidence that the City of Doral rejected Megacenter's request for a Zoning Letter."

The trial court further found that Megacenter did not "deliver ... timely written notice of cancellation of the Purchase Agreement that included evidence of the City's rejection of Megacenter's request for a Zoning Letter and was NOT sent to the proper parties in the proper forms." The trial court held that Megacenter "waived its right of termination and is in default under the Purchase Agreement without default by Goodman." The trial court ordered that Goodman was entitled to $ 1,000,000.00 (the $ 250,000.00 initial deposit Megacenter had already paid and the additional $ 750,000.00 deposit Megacenter had not yet paid), together with pre- and post-judgment interest. Megacenter moved for rehearing, which the trial court denied without a hearing. This appeal followed.

On appeal, we address Megacenter's contentions that (1) it properly terminated the Agreement by timely written notice, and (2) the Agreement and First Modification automatically terminated as a result of Megacenter's non-payment of the $ 750,000.00 Additional Deposit before the end of the Inspection Period.

Termination Notice

We agree with Megacenter that even if we accepted Goodman's position that Megacenter could only terminate the Agreement by written notice, Megacenter's substantial compliance with the notice provision was sufficient to terminate the Agreement. The record reflects that Megacenter provided actual notice via email to Goodman of its decision to terminate the Agreement, which Goodman received. Megacenter's notice of termination was sufficient under Florida law and, accordingly, the Agreement was terminated. Thus, Megacenter's motion for summary judgment should have been granted, as it is entitled to the return of its Initial Deposit ($ 250,000.00) and should not be required to pay the Additional Deposit ($ 750,000.00).

We review an order granting summary judgment under a de novo standard of review. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Questions of law, such as contract interpretation issues, are also reviewed de novo . Siegel v. Tower Hill Signature Ins. Co., 225 So.3d 974, 976 (Fla. 3d DCA 2017).

Megacenter contends that under Florida law, it gave timely actual notice to Goodman that it was terminating the Agreement, that Goodman received the notice, and that Megacenter thus substantially complied with the terms of the First Modification. The record is clear that Goodman's counsel received Megacenter's timely email written notice of termination. There is no dispute on this issue with regard to receipt of the email. Furthermore, Goodman does not dispute that, under Florida law, the sufficiency of legal notice is measured by the substantial compliance standard. Lafaille v. Nationstar Mortg., LLC, 197 So.3d 1246, 1247 (Fla. 3d DCA 2016). However, Goodman argues that the notice is technically deficient under Paragraph 17 of the Agreement, which outlined the methods under which notice was to be provided to Goodman. We disagree with Goodman, as the record reflects that Megacenter properly terminated the Agreement.

Under Florida law, strict compliance with a notice provision is not required if one of the parties (in this case, Goodman) has actual notice, as Megacenter contends. Megacenter cites to Patry v. Capps, 633 So.2d 9, 10-11 (Fla. 1994) in support of its position. The rule set out in Patry requires only substantial and not strict compliance, where notice is required under contracts and statutes. Florida and federal courts follow this rule. Tim Hortons USA, Inc. v. Singh, 2017 WL 1326285 *8 (S.D. Fla. Apr. 5, 2017) ; Lafaille, 197 So.3d at 1247 ; Diaz v. Wells Fargo Bank, N.A., 189 So.3d 279, 282 (Fla. 5th DCA 2016) ; In re Forfeiture of 2003 Chevrolet Corvette, Identification No. 1G1YY12S435100084, Tag VBA386, 932 So.2d 623, 625 (Fla. 2d DCA 2006) ; Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 4th DCA 2005) ; Angrand v. Fox, 552 So.2d 1113, 1114 n.4 (Fla. 3d DCA 1989).

As Megacenter argues, the purpose of delivering notice by the methods outlined in the Agreement is so that a party cannot claim it never received notice, while the other party alleges it gave notice. Phoenix Ins. Co. v. McCormick, 542 So.2d 1030, 1032 (Fla. 2d DCA 1989). However, such is not the case here, where Goodman accepted Megacenter's written notice and Goodman had actual notice of Megacenter's termination. See Torres v. K-Site 500 Assocs., 632 So.2d 110, 112 (Fla. 3d DCA 1994). There is sufficient evidence in the record to support entry of summary judgment in Megacenter's favor and against Goodman because there are no genuine issues of material fact as to whether Megacenter properly terminated the Agreement and is entitled to the return of its Initial Deposit.

Termination Upon Failure to Make the Additional Deposit

For the sake of completeness, we also determine that Megacenter's second and independently-sufficient argument is well taken. The First Modification amended a defined term, "Inspection Period," by extending that date to March 17, 2017. Whether through inadvertence or intention, the parties did not specify whether the $ 750,000.00 Additional Deposit required by Paragraph 3 was to be due on the original Inspection Period expiration date or on the Inspection Period as extended by the parties in their First Modification. Goodman apparently argues that "Inspection Period," a defined term, meant one date for the zoning letter contingency, but something else vis-à-vis the Additional Deposit.

The Agreement and the First Modification use a single term, "Inspection Period." The extension of that defined temporal period also modified the time for making the Additional Deposit. The automatic termination provision of Paragraph 3 of the Agreement used that term as the deadline for the Additional Deposit.

The pertinent provision of Paragraph 3 of the Agreement relating to the Additional Deposit is: "In the event that Purchaser does not deliver the Additional Deposit to Escrow Agent on or before the expiration of the Inspection Period, the same shall be deemed a termination of this Agreement within the Inspection Period and the Agreement shall be terminated, whereupon all parties shall be released from all further obligations under this Agreement , except for obligations that expressly survive termination of this Agreement" (emphasis provided). It is undisputed that Megacenter did not deliver the Additional Deposit to the Escrow Agent on or before the expiration of the Inspection Period. That objectively-ascertainable fact is "deemed" a termination of the Agreement and is an independent basis for our reversal.

Conclusion

We thus reverse the trial court's order granting summary judgment in favor of Goodman on both counts of its counterclaim and denying Megacenter's summary judgment motion on its one-count complaint. The case is remanded to the trial court for entry of final summary judgment in Megacenter's favor on its breach of contract claim and return of its initial $ 250,000.00 deposit.

Reversed and remanded with instruction.

      With the zoning letter contingency still open and Goodman having declined to extend the Inspection Period again before expiration of the extended deadline, Megacenter's non-payment of a further $ 750,000.00 is entirely consistent with its declaration that the contract was terminated when that deadline came and went.


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    Robert MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-7
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019.
    Carlos J. Martinez, Public Defender and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and MILLER, JJ.
   PER CURIAM.

Affirmed. See Franklin v. State, 258 So.3d 1239 (Fla. 2018).


author: FERNANDEZ, J.

text:
    NORTHWIND AIR SYSTEMS, Appellant, v. TERRA'S GARDEN, LLC, Appellee.
    No. 3D18-710
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019.
    Graner Platzek & Allison, P.A. and Meredith A. Chaiken (Boca Raton), for appellant.
    No Appearance for appellee.
    Before FERNANDEZ and LINDSEY, JJ., and LEBAN, Senior Judge.
   FERNANDEZ, J.

Appellant, defendant below, Northwind Air Systems appeals the trial court's order denying Northwind's amended motion to dismiss the third-amended complaint with prejudice and for entry of final judgment. Appellee Terra's Garden LLC did not file an answer brief following issuance of an order to do so. Following review of Northwind's initial brief and the appendix filed in this case, we agree with Northwind and reverse.

On June 14, 2016, appellee/plaintiff Terra's Garden LLC filed an unverified complaint against Northwind, a Canadian corporation, for breach of contract, breach of warranty of merchantability, and breach of warranty of fitness for a specific purpose. Terra claimed in the complaint that jurisdiction was proper because Northwind orally contracted with Terra "to improve [Terra's] existing systems with an industrial air vacuum machine." On August 24, 2016, Northwind filed a motion to dismiss for lack of personal jurisdiction, failure to attach instruments upon which the alleged causes of action are brought, and failure to state a cause of action for breach of warranty of fitness or a specific purpose. On December 5, 2016, the trial court entered an agreed order on Northwind's motion to dismiss, allowing Terra twenty days to amend its complaint.

On January 18, 2017, Terra filed an unverified amended complaint, after which Northwind moved to dismiss it. On March 24, 2017, the trial court held a hearing on Northwind's motion. The hearing was continued, and the trial court ordered Terra to submit a memorandum of law to support its position that the court had jurisdiction over Northwind. After Terra submitted the memorandum, on June 29, 2017, the hearing was continued. The trial court granted Northwind's motion to dismiss with leave for Terra to amend the complaint again.

On July 21, 2017, Terra filed a second amended complaint, asserting that the parties orally contracted for Northwind to provide the equipment from Canada. Terra claimed that "Defendants envisioned a continuing relationship with Plaintiff in Florida by providing a 'guarantee' and a warranty over the equipment it provided to Plaintiff." Terra claimed that Northwind gave its warranty and guarantee by email. Terra did not attach any supporting documents. Terra also made reference to a purchase order that was also not attached to the second amended complaint.

Northwind then filed a motion to dismiss the second amended complaint. At the hearing on the motion on January 22, 2018, the trial court granted Northwind's motion to dismiss with leave for Terra to amend a fourth time to show there was personal jurisdiction over Northwind. On January 29, 2018, Terra filed its third amended complaint which was almost the same as the previous complaints, except this time Terra attached a purchase order and emails. The purchase order originally sent to Terra was numbered # MA529028. The purchase order attached to the third amended complaint was numbered # NW528151. The email attached to Terra's complaint, indicated that Northwind stated, "What I can't guarantee is the efficiency of [Terra's] operation." Northwind also stated, "Unfortunately, you'll [referring to Terra] have to experiment somewhat, I think." Terra claimed in its third amended complaint that through email, Northwind guaranteed and warrantied the equipment in Florida.

On February 13, 2018, Northwind filed an amended motion to dismiss the third amended complaint. Northwind had previously provided affidavits from its principal, John Doyle, and its president, Kevin Weaver. Terra did not provide a rebuttal affidavit or any other sworn proof to rebut Northwind's affidavits. On April 11, 2018, the trial court conducted a non-evidentiary hearing and denied Northwind's amended motion to dismiss without prejudice, and gave Northwind twenty days to file an answer. Northwind now appeals.

The standard of review on a trial court's ruling on a motion to dismiss for lack of personal jurisdiction is de novo .

Castillo v. Concepto Uno of Miami, Inc., 193 So.3d 57, 59 (Fla. 3d DCA 2016). We agree with Northwind that the trial court erred in denying Northwind's amended motion to dismiss the third amended complaint because Terra did not meet its burden to establish proof of jurisdiction over Northwind and because the trial court failed to conduct an evidentiary hearing.

In Tobacco Merchants Association of the United States v. Broin, 657 So.2d 939, 941 (Fla. 3d DCA 1995), this Court stated:

"In determining whether a party is subject to in personam jurisdiction in this state, the trial court must make two separate inquiries: 1) whether sufficient facts have been alleged to bring the cause within Florida's long-arm statute; and if so, 2) whether there have been sufficient minimum contacts with Florida to satisfy federal constitutional due process requirements."

In addition, "A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position." Id. "The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained." Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989). If the affidavits cannot be reconciled, then "the trial court will have to hold a limited evidentiary hearing in order to determine the jurisdiction issue." Id. at 503. If a plaintiff chooses not to file an affidavit to controvert the defendant's affidavit, the factual assertions of the defendant's affidavit are treated as true. Archdiocese of Detroit v. Green, 899 So.2d 322, 325 (Fla. 3d DCA 2004). If the plaintiff fails to refute the allegations by providing sworn proof "as to the basis for jurisdiction, the trial court must grant the defendant's motion to dismiss." Tobacco Merchs. Ass'n, 657 So.2d at 941.

Terra claims that there is personal jurisdiction in Florida over Northwind, a Canadian corporation, because Northwind has a website that one can access in Florida and because Northwind has sold products in Florida. However, "[t]he mere existence of a website does not show that a defendant is directing its business activities towards every forum where the website is visible." Trs. of Columbia Univ. in City N.Y. v. Ocean World, S.A., 12 So.3d 788, 795 (Fla. 4th DCA 2009). In addition, here, Northwind filed the affidavits of its principal, John Doyle, and its president, Kevin Weaver, in support of its position that Florida did not have personal jurisdiction over it. Terra did not file any sworn proof to oppose these affidavits. Northwind's affidavits demonstrate that Northwind is headquartered in Canada; it has never advertised in Florida; its sales in 2013 were less than 1% of its total sales in Florida; in 2014, Northwind's sales were less than .5% of total sales in Florida; and in 2015, its sales in Florida were approximately 1% of its sales. The affidavits further show that Northwind does not use its website to get sales from Florida because there is no active link or web portal that a Florida buyer can access. In addition, the affidavits indicate that of its website-generated sales, only 1/3 of 1% of Northwind's total sales come from Florida. Furthermore, Northwind did not solicit business from Terra. Terra contacted Northwind to purchase the product from Northwind. The bill of sale was drafted in Canada and payment was received in Canada. Consequently, the trial court erred in not granting Northwind's motion to dismiss the third amended complaint.

Moreover, at a minimum, the trial court should have held an evidentiary hearing to determine the jurisdiction issue, as required by Venetian Salami. In the case before us, the hearing notice in the record does not demonstrate that the hearing was an evidentiary one, and the order denying Northwind's motion to dismiss the third amended complaint does not give the reasoning the trial court used to rule on the personal jurisdiction issue. Therefore, there is no way for this Court to know if the hearing that was held was evidentiary.

Terra had four opportunities to show there was personal jurisdiction over Northwind, and it was not able to do so. Thus, for these foregoing reasons, we reverse the trial court's order denying Northwind's amended motion to dismiss the third-amended complaint with prejudice and remand the case with instructions to dismiss the third amended complaint with prejudice. Video Indep. Med. Examination, Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001).

Reversed and remanded with instructions.

      Appellee was ordered to file its answer brief within a time certain or be prevented from filing an answer brief and participating in oral argument.


text:
    Wade POUNDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-190
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Wade Pounds, in proper person.
    Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and HENDON, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

Wade Pounds appeals the trial court's order summarily denying his December 3, 2018 pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion as successive upon finding that Pounds raised the same ground for relief - newly discovered evidence - in an August 23, 2018 postconviction motion that the lower court denied in a November 1, 2018 order. As the State properly and commendably concedes, Pounds did not raise the issue of newly discovered evidence as a ground for relief in his August 23, 2018 postconviction motion. We therefore reverse the order on appeal and remand for further proceedings. If, on remand, the trial court again determines to summarily deny Pounds's claim, the trial court shall attach record excerpts showing that Pounds is not entitled to relief. See Fla. R. App. P. 9.141(b)(2)(D).

We note that, in the order on review, the trial court also both (i) ordered Pounds to show cause why he should not be prohibited from filing any further pro se pleadings in lower tribunal case number F06-24000B, and (ii) prohibited Pounds from filing any further pro se pleadings. Because the trial court failed to follow the procedure required to impose such a prohibition, see State v. Spencer, 751 So.2d 47 (Fla. 1999), we reverse this portion of the trial court's order as well. If, on remand, the trial court still wishes to preclude Pounds from filing further pro se pleadings in the lower court case, the court shall first issue the appropriate notice and provide Pounds with an opportunity to be heard. Chambers v. State, 225 So.3d 311, 311-12 (Fla. 3d DCA 2017).

Reversed and remanded.

      This Court affirmed the trial court's November 1, 2018 denial of Pounds's August 23, 2018 motion in appellate case number 3D18-2510. See Pounds v. State, No. 3D18-2510, 2019 WL 1755650 (Fla. 3d DCA Apr. 17, 2019).

      We express no opinion as to whether Pounds's claim of newly discovered evidence is legally sufficient.


text:
    Joseph M. DENNIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3707
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 26, 2019
    Joseph M. Dennis, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

This Court previously affirmed the trial court's order denying Appellant's motion for postconviction relief in St. Johns County Circuit Court Case Number 2008-CF-1051. Because it appears that Appellant's postconviction filings are abusive, repetitive, malicious, or frivolous, Appellant is cautioned that any further pro se filings in this Court asserting claims stemming from the identified case number may result in sanctions such as a bar on pro se filings in this Court and referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See § 944.279(1), Fla. Stat. (2018) ; State v. Spencer , 751 So.2d 47 (Fla. 1999).

APPELLANT WARNED.

ORFINGER, EISNAUGLE and SASSO, JJ., concur.


author: HENDON, J.

text:
    Janet RODRIGUEZ, Appellant, v. ALS COMMERCIAL FUNDING, LLC, Appellee.
    No. 3D18-1709
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019.
    Janet Rodriguez, in proper person.
    Bassett Law Firm, P.A., and Heidi J. Bassett (Tampa); Daniel Y. Gielchinsky, P.A., and Daniel Y. Gielchinsky, Aventura, for appellee.
    Before EMAS, C.J., and LINDSEY and HENDON, JJ.
   HENDON, J.

Having reviewed the appellant's initial brief, this court finds that there exists no preliminary basis for reversal of the cause below. We affirm pursuant to Florida Rule of Appellate Procedure 9.315(a).

Affirmed.


text:
    J.N., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1361
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special Assistant Public Defender, and Franklin Sandrea-Rivero and Dharma Sierra, Certified Legal Interns, for appellant.
    Ashley Moody, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before SCALES, LINDSEY, and HENDON, JJ.
   PER CURIAM.

Affirmed. See A.M. v. State, 755 So.2d 759 (Fla. 4th DCA 2000) ; A.B.G. v. State, 586 So.2d 445 (Fla. 1st DCA 1991).


text:
    Jerry BYRON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1267
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and HENDON and MILLER, JJ.
   PER CURIAM.

Jerry Byron appeals from the trial court's order denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Byron asserts the trial court erred in refusing to order a competency evaluation and conduct a competency hearing following defense counsel's request for same during the evidentiary hearing on the underlying postconviction motion. We affirm because the record supports the determination that no bona fide question regarding the defendant's competency had been raised.

In 2012, Byron pleaded guilty to several crimes (lower court case number 10-2941B) and was sentenced to two years in prison followed by five years' probation. He violated his probation in 2013 by committing new crimes (lower court case numbers 13-810 and 13-2860). In 2014, a global plea agreement was reached: Byron pleaded guilty to the two new substantive cases, admitted to violating his probation, and was sentenced to eight years in prison.

In 2015, Byron filed a pro se motion for postconviction relief. He alleged that, at the time of the 2012 plea and, later, during the 2014 probation violation proceedings, he was incompetent and that his counsel was ineffective for failing to request a competency evaluation in 2012 and again in 2014. The trial court found that, as to the 2012 plea, the claim was time-barred. The trial court set the remaining claim (concerning the 2014 probation violation proceeding) for an evidentiary hearing, and appointed counsel to represent Byron.

In April 2016, during the pendency of the postconviction proceedings, Byron was adjudicated incompetent to proceed and was committed to the Department of Children and Families (DCF). Months later, the hospital evaluated Byron and indicated he was now competent to proceed. However, when the trial court appointed two doctors (Dr. Salas and Dr. Jacobson) to reevaluate Byron, they initially disagreed with the hospital's competency assessment. The trial court set the case for a competency hearing.

The trial court held a competency hearing in January 2017. At the hearing, the State called Dr. Stein, who had evaluated Byron in November 2016 and who opined that Byron was competent to proceed.

The defense, in response, presented testimony from Dr. Jacobson and Dr. Salas. Although Dr. Jacobson evaluated Byron in April 2016 and determined he was incompetent at that time, Dr. Jacobson reevaluated Byron in December 2016, and found him competent to proceed. Dr. Jacobson noted his concerns that Byron was "malingering" and "exaggerating symptoms." Dr. Salas also evaluated Byron in December 2016, but-unlike Dr. Jacobson and Dr. Stein-determined that Byron was not competent to proceed.

At the conclusion of the hearing, the trial court found Byron competent to proceed, but stated he required strict compliance with his medication to remain competent. The trial court therefore ordered that Byron remain committed at the hospital pending the resolution of the postconviction proceedings to ensure compliance with his medication regimen.

In April 2017, the trial court held the scheduled evidentiary hearing on Byron's postconviction motion. Shortly before the April hearing, Byron was again evaluated by the hospital and the report indicated that Byron remained competent to proceed; the competency evaluation report also noted that Byron had been exaggerating his symptoms. Despite the hospital's reevaluation and determination of competency, defense counsel once again expressed concern about Byron's competency and ability to testify at the impending evidentiary hearing.

The only witness the defense intended to call at this hearing was Byron himself. Given the concerns voiced by defense counsel, however, the trial court attempted to address Byron directly to inquire about these concerns and ensure Byron was able to understand the nature and consequences of the proceeding and to participate in and testify at the hearing. However, Byron refused to speak to the judge and "completely ignor[ed]" the judge's questions.

Because of Byron's refusal to cooperate, the trial court was left with a Hobson's choice of going forward with an evidentiary hearing (at which the only witness was refusing to cooperate and whose competency was being questioned by his own counsel) or to again appoint Drs. Jacobson and Salas to evaluate Byron.

Soon after, however, Byron finally addressed the court on his own. During an in-court exchange between the trial judge and Byron's mother, the trial court explained that, in 2014, Byron "took a deal" and received a sentence of eight years. Byron immediately spoke up, stating: "I ain't took no deal." The trial court then engaged in a short colloquy with Byron in which Byron confirmed that he wanted to testify and wished to proceed with the hearing. Byron testified coherently on both direct and cross examination, and the trial court later denied the motion for postconviction relief. Byron now appeals the denial of the motion, contending the trial court erred by failing to order a competency evaluation at the April 2017 evidentiary hearing, and by failing thereafter to hold a competency hearing.

We conclude the trial court did not abuse its discretion by denying the defense's request to order an additional competency evaluation or to hold an additional competency hearing. Pickles v. State, 976 So.2d 690, 692 (Fla. 4th DCA 2008) (noting: "We review determinations of the trial court not to hold a competency hearing under an abuse of discretion standard.") Upon our review of the record, there were no reasonable grounds to believe that Byron may be incompetent. As the Florida Supreme Court has explained:

Florida law provides that a defendant must be given a competency examination only if the court or defense counsel "has reasonable ground to believe that the defendant is not mentally competent to proceed." Once a defendant has been deemed competent, the presumption of competence continues throughout all subsequent proceedings. A subsequent competency hearing is only required if a bona fide question as to the defendant's competency has been raised .

Dessaure v. State, 55 So.3d 478, 482-83 (Fla. 2010) (emphasis added) (quotations and citations omitted). See also Thompson v. State, 88 So.3d 312, 319 (Fla. 4th DCA 2012) (observing: "Not every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges. Neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial") (quotations and citations omitted).

The existence of a "bona fide question as to the defendant's competency" has not been demonstrated in the instant case. Instead, the trial court's own observations of and interactions with Byron during the evidentiary hearing, together with the prior evaluations and expert testimony, the competency reevaluation by the hospital preceding the evidentiary hearing, and the findings of malingering or exaggeration, support the trial court's determination and undermine Byron's claim that a further competency evaluation was necessary. Pickles, 976 So.2d at 693-94. See also Youngblood v. State, 651 So.2d 227, 228 (Fla. 1st DCA 1995) (upholding the trial court where there was sufficient evidence the defendant had been malingering).

Affirmed.


text:
    Bernard GYDEN, II, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2230
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Bernard Gyden, II, in proper person.
    Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before EMAS C.J., and SCALES and MILLER, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

Bernard Gyden, II appeals the trial court's order dismissing his amended motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Gyden's petition for writ of habeas corpus (alleging ineffective assistance of appellate counsel) was pending before this Court at the same time, the trial court concluded it lacked jurisdiction to entertain or adjudicate Gyden's motion for postconviction relief, and dismissed the motion.

As the State properly and commendably concedes, the trial court erred because it did have jurisdiction to consider Gyden's motion for postconviction relief even while there remained pending before this Court an original proceeding asserting a claim of ineffective assistance of appellate counsel. As the Florida Supreme Court said:

In Knight v. State, 394 So.2d 997 (Fla. 1981), we recognized that allegations of ineffectiveness of appellate counsel are not cognizable under a Rule 3.850 motion because they do not relate to anything done by or transpiring before the trial court. Such allegations, we held, should be addressed to the appellate court by means of a petition for habeas corpus. On the other hand, allegations of ineffectiveness of legal counsel at one's trial are properly presented to the trial court by a Rule 3.850 motion. Since the two judicial attacks on petitioner's convictions and sentences ... were thus separate and distinct, there was no danger ... of conflicting and confusing rulings by different courts on the same issues .... We do not perceive so substantial a problem of confusion as to require us to hold that the pendency of one kind of proceeding deprives the other court of jurisdiction to proceed.

Francois v. Klein, 431 So.2d 165, 166 (Fla. 1983) (emphasis added) (internal citations omitted). See also Reidy v. State, 30 So.3d 705 (Fla. 5th DCA 2010) ; Evans v. State, 962 So.2d 938 (Fla. 3d DCA 2007) ; White v. State, 855 So.2d 723 (Fla. 3d DCA 2003) ; Gawronski v. State, 801 So.2d 211 (Fla. 2d DCA 2001).

We reverse and remand for the trial court to address and, as appropriate, to adjudicate Gyden's amended motion for postconviction relief.


text:
    Alex CARULO, et al., Appellant, v. CITY OF MIAMI BEACH, Appellee.
    No. 3D18-1449
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Buschel Gibbons, P.A., Robert C. Buschel and Eugene G. Gibbons (Ft. Lauderdale), for appellant.
    MLE Law and Michael L. Elkins (Ft. Lauderdale), for appellee.
    Before FERNANDEZ, LOGUE and MILLER, JJ.
   PER CURIAM.

Affirmed. See Nestor v. Ward, 163 So.3d 582, 585 (Fla. 3d DCA 2015) ("In the absence of a motion to vacate, modify, or correct the arbitration award, the trial court must confirm the award ...."); and see also Fraternal Order of Police v. City of Miami, 598 So.2d 89 (Fla. 3D DCA 1992).


text:
    PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. Teresa SIRVAS and Hugo Sirvas, Appellees.
    No. 3D18-813
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    White & Case, LLP, Raoul G. Cantero, Ryan A. Ulloa and Anta P. Plowden ; Brett R. Frankel and Jonathan M. Sabghir (Deerfield Beach), for appellant.
    McLuskey, McDonald & Hughes, P.A., John W. McLuskey, John E. Hughes, III and Lisa A. Riddle, for appellees.
    Before FERNANDEZ, LOGUE and MILLER, JJ.
   PER CURIAM.

Affirmed. See People's Tr. Ins. Co. v. Acosta, 259 So.3d 179 (Fla. 3d DCA 2018).


text:
    Robert CORNFELD, etc., Appellant, v. PLAZA OF THE AMERICAS CLUB, INC., et al., Appellees.
    No. 3D18-270
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Saul Ewing Arnstein & Lehr LLP, and Franklin L. Zemel, Alan R. Poppe and Ariel R. Deray (Fort Lauderdale), for appellant.
    Vernis & Bowling of Miami, P.A., and Evelyn Greenstone Kammet and Daniel E. Davis, for appellees.
    Before LOGUE, SCALES and HENDON, JJ.
   HENDON, J.

Robert Cornfeld ("Cornfeld"), derivatively as a shareholder and on behalf of Plaza of the Americas Club, Inc., appeals from the trial court's final order dismissing with prejudice his amended shareholder derivative suit against Plaza of the Americas Club, Inc. and its directors, Narcisco Alberti, Nila Fernandez, Jospeh Chavez, Emelina Foyo, Mercy Rodriguez, Marta Arriola, Alba Garcia, Jesus Garcia, and Ana M. Imery, individually (collectively, the "Club"). We affirm.

Procedural history:

The Club is a not-for-profit corporation that owns and operates the Plaza of the Americas condominium complex. Cornfeld owns one of the condominium units and brought this shareholder derivative action pursuant to section 617.0740, Florida Statutes (2016), alleging the Club breached its fiduciary duty to the unit owners and asking for injunctive relief. The suit was based on Cornfeld's allegations that the Club wrongfully refused to accept an offer of $ 2.5 million to purchase a parcel of Club property, and refused to assert a claimed legal right against RK Centers, LLC (hereinafter "RK"), which is the shopping center adjacent to the condominiums, for an alleged contractual breach by RK to repair damages to a sewer main. The Club filed a motion to dismiss, arguing (1) Cornfeld lacked standing to bring the derivative action because he failed to serve a pre-suit demand pursuant to section 617.07401, Florida Statutes (2016) ; (2) Cornfeld's claims are barred because the Club is protected by the business judgment rule; (3) Cornfeld failed to join RK as an indispensable party; and (4) Cornfeld failed to state a cause of action for injunctive relief.

After the hearing on the Club's motion to dismiss, the trial court deferred ruling and asked the parties how they wanted to proceed, tracking section 617.07401. That statute provides that, in order to determine whether maintenance of the derivative action is in the best interest of the corporation, the corporation can proceed in one of three ways: (1) a majority vote of independent directors at a Board meeting; (2) a majority vote of a committee of two or more independent directors appointed by a majority vote at a Board meeting; or (3) a panel of one or more independent persons appointed by the court upon motion by the corporation. The Club chose the third option, and the trial court appointed - by unopposed order - attorney Jordana Goldstein as the independent investigator. Goldstein took five months to review the allegations.

After her investigation concluded, Goldstein filed a forty-four (44) page report with the trial court, exclusive of several hundred pages of exhibits. She concluded that maintaining the derivative action is not in the best interest of the Club. Goldstein recommended the trial court dismiss the action because: (1) Cornfeld does not adequately represent the interests of the Club's unit owners because of his personal motivation for filing the suit, which is contrary to the interests of the Club membership generally; (2) the Board members' decisions were reasonable, were guided by legal advice throughout, and are protected by the business judgment rule, and the board members are thus immune from the lawsuit; and (3) the litigation is barred because Cornfeld failed to serve a statutorily required pre-suit demand on the Board.

Cornfeld filed his objections to the report. He asserted that the report was biased and conducted in bad faith, that Goldstein failed to interview the owner of RK, improperly focused on Cornfeld's personal business motivations for filing the derivative suit, and had no reasonable basis to explain why the Club failed to sue RK or sell its land. After a one-hour specially set hearing, the trial court found that Goldstein's investigation was independent, reasonable, and conducted in good faith. The trial court expressly adopted Goldstein's factual findings and legal conclusions, accepted her recommendation that the matter be dismissed, and dismissed the amended derivative complaint with prejudice as to Cornfeld.

Analysis

Our standard of review of a trial court's order granting a motion to dismiss is de novo . Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1088 (Fla. 3d DCA 2014).

The parking property : Cornfeld does not challenge the independence of the investigator; rather, he argues that there are material issues of disputed fact regarding the reasonableness and good faith of the investigation. He asserts that his personal interest in the sale of the Club property is irrelevant to the interests of the Club's unit owners. However, our review of the record below evidences self-interest has motivated his relationship with the Club for many years over his need for parking spaces for the Newport Hotel, one of his properties. He attempted to influence the third-party developer GPI's principal, Philip Aginsky, to purchase the land from the Club in order to secure parking for the Newport. There is evidence in the record suggesting that Cornfeld threatened the Club's attorney with a lawsuit if she failed to change her mind and convince the Club to sell the property without a vote of approval from a majority of the unit owners, in direct contradiction to her own legal advice and other counsels' advice to the Club. Indeed, after the Club declined to sell the property to GPI, which was within its judgment to do, Cornfeld filed this derivative suit.

The RK/sewer line issue : The independent investigator queried many sources to determine whether the Club breached its fiduciary duty to the unit owners by failing to sue RK for damage to the Club's force main sewer line in 1995, which occurred during construction of the RK shopping center. The investigator determined that the Club, after consulting its attorneys on the matter, decided that it would not be cost-effective to sue RK, but rather to pay to fix the sewer lines itself.

Throughout the complicated dealings over the years between the Club, RK, and Cornfeld, the Club sought the advice of its attorneys, followed its attorneys' conservative advice, and some of those decisions resulted in assessments passed on to the unit owners. Cornfeld does not allege, however, and the record below does not show, that the Club or its individual officers acted fraudulently, illegally, oppressively or in bad faith - elements necessary to sustain a derivative action on the corporation's behalf. § 607.0831(1), Florida Statutes (2018) (providing insulation for condominium association directors from liability in their individual capacities absent fraud, criminal activity, self-dealing, or unjust enrichment); see Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 27 (Fla. 5th DCA 2004) ("[A]bsent fraud, self-dealing and betrayal of trust, directors of condominium associations are not personally liable for the decisions they make in their capacity as directors of condominium associations."); Farrington v. Casa Solana Condo. Ass'n, Inc., 517 So.2d 70, 72 (Fla. 3d DCA 1987) (holding the 'business judgment rule' will protect a corporation's board of directors' business judgment as long as the board acted in a 'reasonable' manner in passing the special assessment). Indeed, "[a] corporation's refusal to sue might be considered unreasonable by one of its stockholders and still not be wrongful so as to justify a stockholder's derivative action." James Talcott, Inc. v. McDowell, 148 So.2d 36, 38 (Fla. 3d DCA 1962).

On the issue of the Club's immunity from liability by virtue of the business judgment rule, we find no error in the trial court's acceptance of the facts and legal conclusions contained in Goldstein's independent report. See, e.g., Atkins v. Topp Comm, Inc., 874 So.2d 626, 627 (Fla. 4th DCA 2004) (affirming dismissal of the derivative suit, finding that the dismissal was based on the trial court's conclusion that the independent investigator acted reasonably and with good faith in conducting his investigation). Goldstein, the independent investigator in this case, as did the investigator in Atkins, examined the merits of the proposed claims and concluded that the derivative suit was not in the corporation's best interest. The record here reflects that Goldstein conducted numerous witness interviews, reviewed relevant documents, sought input from the attorneys for both sides, kept both sides advised as the investigation progressed, and presented a lengthy report to the court. The trial court did not abuse its discretion by adopting Goldstein's factual findings and legal conclusions, and finding that the report was reasonable and conducted in good faith. Given our conclusion that dismissal with prejudice was correct, we decline to address any remaining issues.

Affirmed.

      Cornfeld is the owner/manager of a privately held, family owned real estate investment and management company known as "The Cornfeld Group." The Cornfeld Group umbrella consists of various corporations and limited liability companies which are either owned or managed by Dr. Cornfeld himself or by his immediate family members. The Cornfeld Group's portfolio includes the Newport Beachside Hotel and Resort ("Newport") located across the street from the Plaza of the Americas (Club) on Collins Avenue. Newport currently leases the "boatyard area" from the Club for parking for the Newport. The area adjacent to the boatyard and alley is used for ingress and egress to the boatyard and the neighboring RK-owned shopping center. This property is the primary subject of the derivative action.

      Goldstein's investigation included reviewing preliminary position statements submitted by the parties and hundreds of pages of supporting documents, and reviewing all record activity including pleadings and discovery. She conducted her own independent research, and spent sixty hours interviewing eight witnesses (including the Club's property manager, board members, counsel, Cornfeld, Philip Aginsky of GPI, and others). Goldstein went on site to inspect the various involved properties, and she obtained information from the Miami-Dade County Property Appraiser, Clerk of Court, the City of Sunny Isles, and the Florida Division of Corporations on her own volition. Additionally, during the course of the witness interviews, she requested the parties to supply her with additional documents, which they did, and she reviewed all of the additional documents provided, which amounted to hundreds of additional pages of information.

      The record indicates that problems with the sewer lines continued for many years, the causes for which are unclear, and may have stemmed from improperly sized pipes, overcapacity, low-lying land that tended to flood, among others.