author: PER CURIAM.

text:
    CITY OF SUNRISE, Appellant, v. Lourdes COLON, Appellee.
    No. 4D18-2473
    District Court of Appeal of Florida, Fourth District.
    [June 19, 2019]
    Christopher J. Stearns and Jonathan H. Railey of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellant.
    Scott M. Behren of Behren Law Firm, Weston, for appellee.
   PER CURIAM.

Affirmed . See Dade Cnty. Sch. Bd. v. Radio Station WQBA , 731 So. 2d 638, 644 (Fla. 1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record."); Fla. Admin. Code R. 1B-24.003(1)(a), General Records Schedule GS-1-SL for State and Local Government Agencies (eff. Aug. 2017) (personnel information for temporary employees must be retained for three fiscal years after any manner of separation or termination of employment).

Affirmed.

Gerber, C.J., May and Conner, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Richie DESAUGUSTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3531
    District Court of Appeal of Florida, Fourth District.
    [June 12, 2019]
    Richie Desauguste, Punta Gorda, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Hart v. State , 246 So. 3d 417 (Fla. 4th DCA 2018).

May, Ciklin and Levine, JJ., concur.


text:
    Allen Eugene BYTHWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-542
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    No appearance required for appellee.
   Per Curiam.

Affirmed . See Hart v. State , 246 So. 3d 417 (Fla. 4th DCA 2018) (en banc). As we did in Hart , we again certify conflict with Cuevas v. State , 241 So. 3d 947 (Fla. 2d DCA 2018) ; Blount v. State , 238 So. 3d 913 (Fla. 2d DCA 2018) ; Mosier v. State , 235 So. 3d 957 (Fla. 2d DCA 2017) ; Alfaro v. State , 233 So. 3d 515 (Fla. 2d DCA 2017) ; and Burrows v. State , 219 So. 3d 910 (Fla. 5th DCA 2017).

Warner, Taylor and Damoorgian, JJ., concur.


text:
    Deonta HOWELL, Appellant, v. Amy U. HICKMAN, Appellee.
    No. 4D19-520
    District Court of Appeal of Florida, Fourth District.
    [June 19, 2019]
    Deonta Howell, Jonesboro, GA, pro se.
    Amy U. Hickman of Hausmann & Hickman, P.A., Boynton Beach, for appellee.
   Per Curiam.

Affirmed. See A.A.F. v. Dep't of Child. & Fam. , 211 So. 3d 271 (Fla. 4th DCA 2017) (affirming denial of putative father's motion to intervene and motion for relief from final judgment of termination of parental rights because putative father was not entitled to notice of proceedings where putative father did not timely register with the Florida Putative Fathers Registry); § 63.063(2), Fla. Stat. (2018) ("A fraudulent representation is not a defense to compliance with the requirements of this chapter and is not a basis for dismissing a petition for termination of parental rights or a petition for adoption, for vacating an adoption decree, or for granting custody to the offended party. Custody and adoption determinations must be based on the best interests of the child in accordance with s. 61.13."); § 63.063(3), Fla. Stat. (2018) ("In balancing the rights and interests of the state and of all parties affected by fraud, including the child, the adoptive parents, and the unmarried biological father, the Legislature has determined that the unmarried biological father is in the best position to prevent or ameliorate the effects of fraud and, therefore, has the burden of preventing fraud.").

Gerber, C.J., Warner and Conner, JJ., concur.


text:
    UYEN LE, Appellant, v. AMERICAN EXPRESS NATIONAL BANK and Diva-Perfect 10 Nail Spa Inc., Appellees.
    No. 4D19-137
    District Court of Appeal of Florida, Fourth District.
    [June 26, 2019]
    Uyen Le, Lake Worth, pro se.
    Zoran D. Jovanovich of Zwicker & Associates, P.C., Deerfield Beach, for appellee American Express National Bank.
   Per Curiam.

Affirmed. Fla. R. App. P. 9.315(a).

Gerber, C.J., Gross and Taylor, JJ., concur.


author: Forst, J.

text:
    NATIONSTAR MORTGAGE LLC and U.S. Bank National Association, as trustee for the benefit of Harborview 2005-2 Trust Fund, Appellants, v. Farshadi FARAMARZ, Appellee.
    No. 4D18-347
    District Court of Appeal of Florida, Fourth District.
    [June 26, 2019]
    Allison Morat of Bitman O'Brien & Morat, PLLC, Maitland, for appellants.
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellee.
   Forst, J.

Appellants Nationstar and U.S. Bank appeal from the trial court's award of prevailing party attorney's fees and costs to Farshadi Faramarz after Faramarz successfully obtained an involuntary dismissal of the mortgage foreclosure complaint. Faramarz cross-appeals from the same final order. As discussed herein, we agree with Appellants that Faramarz is not entitled to prevailing party fees and costs. We therefore reverse on the first issue in the main appeal. The reversal moots the second issue in the main appeal (regarding the application of a multiplier to the fee award) as well as the cross-appeal (regarding the reduction of the hourly rates of Faramarz's counsel in the fee award).

Background

U.S. Bank filed a foreclosure complaint against Faramarz. The bank alleged it was the holder of the note. Faramarz moved to dismiss, arguing the bank "never had standing to initiate this lawsuit." The trial court denied the motion to dismiss. Faramarz then filed an answer and raised several affirmative defenses, including failure to comply with conditions precedent, breach of contract, and lack of standing to initiate the lawsuit. He also asserted entitlement to prevailing party attorney's fees and costs pursuant to the reciprocity provision of section 57.105(7), Florida Statutes (which renders a unilateral contract clause for prevailing party fees-such as that contained in the mortgage-bilateral).

Before trial, Nationstar was substituted for U.S. Bank as the plaintiff. At trial, the parties stipulated to the introduction of the note and mortgage (executed by Faramarz), the assignment of mortgage (from MERS, as nominee for the original lender, to U.S. Bank), and the power of attorney (from U.S. Bank to Nationstar).

After Nationstar presented its case, Faramarz moved for involuntary dismissal based on standing. He argued there was "no testimony that ... at the time the complaint was filed ... that the trust or the purported Plaintiff, whoever the Plaintiff is, possessed the note, and you have to do that ... even with a blank endorsement, you have to say that there was possession of the note at the time that the pleadings, that the complaint was filed."

The trial court granted Faramarz's motion for involuntary dismissal, finding that the plaintiff lacked standing at the inception of the lawsuit. The court further ruled that, "if [Faramarz] pled for attorneys' fees and he has got an involuntary dismissal, he has the right to attorneys' fees. I don't know any argument against that."

The trial court subsequently entered a written order dismissing the case without prejudice, awarding attorney's fees and costs to Faramarz, and reserving jurisdiction to determine the amount of fees and costs. Nationstar unsuccessfully moved for rehearing, and did not appeal from the dismissal order. Faramarz filed a motion to determine the amount of prevailing party attorney's fees and costs.

After a hearing, the trial court awarded Faramarz attorney's fees totaling $96,100.00 (having applied a multiplier of 2.0). The court also awarded $5,000.00 for the fee expert, and $3,600.00 in taxable costs (the majority of which was for the fee expert's deposition and deposition preparation). The fees and costs judgment totaled $104,700.00. This appeal and cross-appeal followed.

Analysis

"Because it concerns a question of law, we review de novo a trial court's final judgment determining entitlement to attorney's fees based on a fee provision in the mortgage and the application of section 57.105(7)." Bank of N.Y. Mellon Tr. Co., N.A. v. Fitzgerald , 215 So. 3d 116, 118 (Fla. 3d DCA 2017).

Florida follows the "American Rule" that attorney's fees may be awarded only when authorized by contract or statute. Nationstar Mortg. LLC v. Glass , 219 So. 3d 896, 897 (Fla. 4th DCA 2017). Faramarz's sought attorney's fees and costs pursuant to the mortgage's fee provision and the reciprocity provision of section 57.105(7), Florida Statutes.

Nationstar and U.S. Bank argue that Faramarz is not entitled to an award of attorney's fees and costs under section 57.105(7), because he succeeded on his standing defense to defeat the foreclosure.

Faramarz responds that, while he succeeded on his defense that the original plaintiff, U.S. Bank, lacked standing at the inception of the case, the court did not find that successor plaintiff Nationstar lacked standing at the time of trial. Faramarz further contends that the documents presented at trial "show that U.S. Bank and Nationstar joined Faramarz as a party to the mortgage agreement."

"A plaintiff alleging standing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that [it] had standing as of the time the foreclosure complaint was filed." Peoples v. Sami II Tr. 2006-AR6 , 178 So. 3d 67, 69 (Fla. 4th DCA 2015) (alteration in original) (quoting Kiefert v. Nationstar Mortg., LLC , 153 So. 3d 351, 352 (Fla. 1st DCA 2014) ). Because Faramarz successfully argued that Nationstar failed to establish its right to enforce the note and mortgage contract at the time of the foreclosure complaint, he cannot now seek to take advantage of the fee provision in the mortgage contract. See Deutsche Bank Tr. Co. Americas as Tr. Rali 2006-QS6 v. Page , No. 4D18-816, 274 So.3d 1116, 2019 WL 2439901 (Fla. 4th DCA June 12, 2019) (en banc); Wells Fargo Bank, N.A. as Tr. for SASCO 2007-MLN1 Tr. v. Moccia, 258 So. 3d 469, 471 (Fla. 4th DCA 2018) ; Torres v. Bank of N.Y. for Certificate Holders CWABS, Inc. Asset Backed Certificates Series 2006-26 , 252 So. 3d 274 (Fla. 4th DCA 2018) ; Nationstar Mortg., LLC v. Martins , 240 So. 3d 732 (Fla. 4th DCA 2018) ;

Lakmaitree v. 21st Mortg. Corp. , 238 So. 3d 324 (Fla. 4th DCA 2018) ; Sabido v. Bank of N.Y. Mellon , 238 So. 3d 867, 868-69 (Fla. 4th DCA 2018).

In each of these decisions we relied on our precedent in Nationstar Mortgage LLC v. Glass . Further, in the most recent decision, Deutsche Bank Trust Co. Americas as Trustee Rali 2006-QS6 v. Page , we declared en banc:

We adhere to our precedent in Glass and state our holding simply:
NO STANDING = NO ATTORNEY'S FEES

Faramarz likens this case to Madl v. Wells Fargo Bank, N.A. , 244 So.3d 1134 (Fla. 5th DCA 2017), and submitted Harris v. Bank of New York Mellon, 44 Fla. L. Weekly D141, --- So.3d ----, 2018 WL 6816177 (Fla. 2d DCA Dec. 28, 2018), as supplemental authority. In those cases, the Fifth and Second Districts held that regardless of the borrower prevailing on a "lack of standing" defense, the borrower was entitled to fees because there was proof of a contract between the parties at the time of trial. However, in our en banc decision in Page , we disagreed with Madl and Harris and held that our sister courts reached their holdings in those cases "by relying upon the existence of a contract between the bank and the borrower notwithstanding the bank's failure to prove standing in the foreclosure action. We decline to go down that rabbit hole."

Here, even if Nationstar established standing at the time of trial, Faramarz prevailed due to the trial court's determination that U.S. Bank, the predecessor plaintiff, lacked standing at the inception of the foreclosure action. As we held in Page , "The borrower cannot have it both ways. If the borrower prevails on [his] 'lack of standing' defense, [he] cannot rely on the contract to obtain attorney's fees."

We again certify conflict with Madl and Harris .

Conclusion

On the main appeal, we reverse the final judgment and order granting Faramarz's motion to determine the amount of prevailing party attorney's fees and costs. Our reversal moots the second issue on appeal and the cross-appeal.

Reversed.

Damoorgian and Conner, JJ., concur.

      Review of our en banc Glass decision was granted by the Florida Supreme Court and thereafter dismissed as improvidently granted. See Glass v. Nationstar Mortg., LLC , 268 So.3d 676 (Fla. 2019), reh'g stricken , SC17-1387 (Fla. May 6, 2019).

      In Harris , the Second District certified conflict with our Glass decision and the Third District's decision in Fitzgerald .


author: Warner, J.

text:
    Gail FLINN, Appellant, v. Kevin DOTY, as curator of the Estate of Robert A. Flinn, Appellee.
    No. 4D18-1273
    District Court of Appeal of Florida, Fourth District.
    [July 10, 2019]
    Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A., Jupiter, for appellant.
    Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, for appellee.
   Warner, J.

Appellant challenges an amended final judgment after remand from this court's opinion in Flinn v. Doty , 214 So. 3d 683 (Fla. 4th DCA 2017). The amended judgment converted an equitable lien-which had been granted in the original final judgment that was subsequently reversed-to a money judgment. However, because the original judgment had not been stayed, the property upon which the lien was imposed was sold by judicial sale, and a deficiency judgment was sought. Because this constituted an election of remedies, we reverse the amended money judgment, as appellee must pursue a deficiency decree.

The facts surrounding this case are set forth in Flinn. Briefly, the guardian of appellant's father, appellant's sister, sought to impose an equitable lien on appellant's homestead for monies that appellant had secured from the sale of properties deeded to her at a time when her father was incapacitated. Id. at 684. The proceedings resulted in a final judgment imposing an equitable lien in the amount of $206,000 on appellant's home because appellant had used monies from the sale of the father's property to pay off her existing mortgage. Id. The court also imposed an equitable lien for an additional $185,000 that appellant received from other properties. Id. During these proceedings, the father had died. Id. After an appeal to this court, which affirmed the final judgment, the personal representative of the father's estate filed a complaint to foreclose the equitable lien against the homestead for $206,000. Id. The PR also sought a money judgment for the $185,000 lien. However, the trial court entered a combined judgment for both liens and interest in the amount of $421,428 and set a foreclosure sale. Id.

While appellant sought to cancel the sale of her homestead, and appealed the judgment, the PR did not cross-appeal the court's refusal to enter a money judgment. Instead, the PR set, and then reset, the sale. This resulted in the sale of appellant's homestead for $59,100. The PR then moved for a deficiency for the difference between the sale price and the $421,428. The trial court refused to consider the issue without proof of the fair market value of the property. No denial of the motion appears in the record, and it is still pending.

This court affirmed the imposition of the equitable lien of $206,000 against appellant's homestead because those funds had been used to pay off the mortgage on the home. Id. at 685. But we held that the $185,000 lien could not be included as part of the foreclosure proceeding because those proceeds were not used to satisfy any obligations on the home. Id. at 686. We reversed "the final judgment to the extent it enforces the $185,000 lien and remand[ed] for the court to revise the judgment accordingly." Id.

On remand, over the objection of appellant that the PR had already elected his remedy by proceeding with the foreclosure and sale of the property for both liens, the court entered an amended final money judgment for $185,000 plus interest, prompting this appeal.

While raising multiple issues, we consider the appellant's claim that the PR elected his remedy by pursuing the foreclosure and deficiency judgment, to be dispositive. "The election of remedies doctrine is an application of the doctrine of estoppel and operates on the theory that a party electing one course of action should not later be allowed to avail himself of an incompatible course." Barbe v. Villeneuve , 505 So. 2d 1331, 1332 (Fla. 1987). This is true, even if the remedy sought was an improper one. In United Companies Financial Corp. v. Bergelson , 573 So. 2d 887, 888-89 (Fla. 4th DCA 1990), where a plaintiff chose an improper remedy, we said:

We acknowledge that real property cannot be the subject of conversion. American Int'l Land Corp v. Hanna , 323 So. 2d 567, 569 (Fla. 1975). Therefore, conversion was a nonexistent remedy. Ordinarily, if a plaintiff proceeds upon an nonexistent remedy, he is not precluded from resorting to another remedy. Rolf's Marina, Inc. v. Rescue Serv. & Repair, Inc. , 398 So. 2d 842, 843 (Fla. 3d DCA 1981) (quoting Perry v. Benson , 94 So. 2d 819, 820 (Fla. 1957). However, the plaintiff's effort under the nonexistent remedy must have been aborted to pursue another remedy. Id. Sub judice, appellees' effort under the conversion remedy was not aborted since that case proceeded to judgment. Appellees obtained the remedy they sought even though it was an improper remedy.
"When a party elects between two or more inconsistent courses and has knowledge of all the pertinent facts, he binds himself to the course he adopts first and cannot later withdraw from this knowing election."
Barbe v. Villeneuve , 505 So. 2d 1331, 1334 (Fla. 1987). Appellees cannot now seek a different remedy.

Where a party first foreclosed on property and then sought to execute on a money judgment on the promissory note, the Second District held that the plaintiff had elected its remedy and had to pursue a deficiency decree prior to seeking other collection efforts:

Although a party may pursue both a foreclosure action and an execution on note, Mellor v. Goldberg , 658 So. 2d 1162 (Fla. 2d DCA 1995), typically a party will follow a foreclosure sale by initiating a deficiency hearing to obtain a deficiency judgment. In this instance, Premier is attempting to execute on the promissory note to obtain the difference between the foreclosure sale amount and the amount of the judgment. Premier's collection efforts have the potential to result in an inequity. By executing on a promissory note and then setting-off the amount recovered at foreclosure, Premier avoids a hearing on the amount of deficiency between the foreclosure sale amount and the judgment amount pursuant to section 702.06, Florida Statutes.

Century Group, Inc. v. Premier Fin. Servs. E., L.P. , 724 So. 2d 661, 662 (Fla. 2d DCA 1999) (footnote omitted).

This case is similar to Century Group. The trial court entered a foreclosure judgment of both equitable liens. The PR did not appeal, even though he never requested foreclosure of the $185,000. Instead, he pursued the sale of the property to satisfy both liens, and then sought a deficiency decree when the amount of the sale was insufficient to cover the total amount of the judgment. He has committed himself to that remedy, which is inconsistent with obtaining a money judgment for the entire amount of the $185,000.

While our opinion reversing the imposition of the $185,000 lien on the homestead directed the court to "revise the judgment accordingly," the judgment had not been stayed, and the property had already been sold to satisfy both liens, thus enforcing the original judgment. Having sought a deficiency, the PR's course was already set as to how to satisfy its equitable liens before our opinion was rendered. The PR must pursue the remedy he elected. See Century Group. Depending upon the trial court's determination of the equities, there may be no substantive difference between the amount the PR will obtain in the deficiency judgment or in the money judgment. But that is a matter for the trial court and a full hearing.

Reversed and remanded with directions to vacate amended final judgment.

Gerber and Conner, JJ., concur.

      The trial court was correct that the fair market value is one consideration in determining whether a deficiency decree should be entered. However, the court cited to section 702.06, Florida Statutes (2018), which governs mortgage foreclosures. As this was the foreclosure of an equitable lien and not a mortgage, section 45.031 sets the procedures. Section 45.031(8), Florida Statutes (2018), provides in part: "If the case is one in which a deficiency judgment may be sought, and application is made for a deficiency, the amount bid at the sale may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles."


author: SALTER, J.

text:
    Herbert COUSINS, Appellant, v. POST-NEWSWEEK STATIONS FLORIDA, INC., etc., Appellee.
    No. 3D17-2805
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019 Rehearing Denied May 22, 2019
    ADR Miami LLC and Juan Ramirez, Jr., Miami; Eduardo Gomez, Coral Gables, for appellant.
    Mitrani, Rynor, Adamsky & Toland, and Karen Williams Kammer, Miami Beach, for appellee.
    Before EMAS, C.J., and SALTER and SCALES, JJ.

      Chief Judge Emas did not participate in oral argument.

   SALTER, J.

Herbert Cousins appeals an order dismissing his third amended complaint and entering a final judgment in favor of Post-Newsweek Stations Florida, Inc. d/b/a WPLG-Channel 10 ("Post-Newsweek"). We reverse and remand with instructions to reinstate Cousins's third amended complaint.

Factual and Proceedings Below

In 2003, Cousins, the plaintiff below, was hired by the Miami-Dade County School Board as its inspector general and was to serve a two-year term.

During Cousins's two-year term, in August 2005, Post-Newsweek aired broadcast reports related to its investigative reporting of the inspector general's office and the alleged inefficiency of the office, which, according to Cousins, were "a series of fake news attack stories." As part of the aired broadcast reports, Post-Newsweek allegedly: (1) solicited comments from Miami-Dade County School Board members regarding "false investigative findings"; (2) commented on Cousins's hiring and selection process; and (3) reported the number of cases closed by Cousins's office in the two years of its existence. Cousins alleged that as a result of these broadcast reports, the "Office of Inspector General was disbanded," and Cousins's employment was not renewed.

In response to the broadcast reports, on October 3, 2005, Cousins (through counsel) sent a written correspondence to Post-Newsweek's news director, requesting a "retraction" of certain "materially false statements." More specifically, the letter included the following language:

Please consider issuing a retraction regarding the several pieces [sic] broadcast regarding Mr. Herb Cousins, former Miami-Dade County School District Inspector General. These materially false statements; (1) that Herb Cousins got his Inspector General job as a result of cronyism and not through a proper selection process; (2) that Mr. Cousins was not qualified for the job; and (3) that only 8 cases were closed in two years, were publically disseminated by your station during the first three weeks of August, 2005.
...
We request a meeting with your editorial board as soon as possible. Given proper retraction and a proper apology, Mr. Cousins is willing to give serious consideration to forgo litigation.

In response to Cousins's request, Post-Newsweek retracted a portion of the aired broadcast reports, clarifying the number of cases the inspector general's office had closed in its two-year existence.

Although Post-Newsweek provided the partial retraction, in March 2007, Cousins initiated the underlying lawsuit against Post-Newsweek, Post-Newsweek's reporter, the School Board, and two other individual defendants, alleging claims for conspiracy to defame and disparage, and breach of contract. Before Post-Newsweek filed its answer, however, Cousins amended his complaint, adding, in relevant part, a negligent supervision count as to Post-Newsweek and its news reporter.

In that first amended complaint, Cousins alleged the following:

[Cousins] has complied with all conditions precedent to filing this suit including those required by Chapter 768, Florida Statutes. The School Board was given an opportunity to review the evidence supporting the claim as a part of the statutory administrative review of the claim, but the School Board never responded to the opportunity to resolve this matter administratively. See letter to ... School Board attorney, dated 10/12/06 attached hereto as Ex. A.

In furtherance of this allegation, Cousins attached, as an exhibit to the first amended complaint, his presuit notice directed at the School Board "as required under Sec[tion] 768.28." In response, Post-Newsweek filed its answer; it included the following language as to that allegation: "The Post-Newsweek Defendants deny that [Cousins] has 'complied with all conditions precedent' as such suit relates to the Post-Newsweek Defendants."

As litigation slowly proceeded, Cousins voluntarily dismissed the other defendants, leaving Post-Newsweek as the sole defendant. With Post-Newsweek remaining as the sole defendant, Cousins was permitted to file a second amended complaint, which asserted claims for defamation/libel and negligent supervision.

In that complaint, Cousins alleged he "ha[d] complied with all conditions precedent to filing this suit, including those required by Chapter 768, Florida Statutes." In response, Post-Newsweek moved to dismiss the second amended complaint, arguing, among other grounds, Cousins "neither ple[d] he complied with the condition precedent to bringing a libel claim against a media defendant pursuant to Chapter 770, Florida Statutes, nor attache[d] proof of compliance." (footnote call number omitted).

At a hearing on that motion in 2017, the trial court addressed Post-Newsweek's motion to dismiss, concluding the second amended complaint was "all over the place" and failed to "plead the direct defamation count." Again, the trial court permitted Cousins to file an amended complaint. This time, however, the trial court required Cousins to "attach [the] pre-suit notice and transcript upon which [Cousins was] suing."

As permitted by the trial court, Cousins filed his third amended complaint, attaching the 2005 presuit notice and providing a transcript of the alleged defamatory language. In that complaint, Cousins alleged he "ha[d] complied with all conditions precedent to filing this suit including a retraction demand pursuant to Chapter 770, Florida Statutes." In response, Post-Newsweek filed a motion to dismiss, seeking dismissal based on Cousins's failure to comply with a condition precedent pursuant to section 770.01, Florida Statutes.

Following a hearing, the trial court granted Post-Newsweek's motion to dismiss, concluding that Cousins's presuit notice was "woefully inadequate" and failed to comply with section 770.01. The trial court also dismissed the negligent supervision count because, according to the trial court, it could not survive "in light of [its] ruling on the [defamation] count." A final judgment was entered following the dismissal.

Cousins's appeal followed.

Standard of Review

We review a trial court's order of dismissal de novo. See Kendall S. Med. Ctr., Inc. v. Consol. Ins. Nation, Inc., 219 So.3d 185, 188 (Fla. 3d DCA 2017). "The purpose of a motion to dismiss is 'to test the legal sufficiency of the complaint, not to determine factual issues.' " Rolle v. Cold Stone Creamery, Inc., 212 So.3d 1073, 1076 (Fla. 3d DCA 2017) (quoting The Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla. 2006) ). When ruling on a motion to dismiss, the trial court "must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party." Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014).

Analysis

On appeal, Cousins makes two principal arguments. First, Cousins asserts that any affirmative defense or denial of a condition precedent based on his failure to provide statutory presuit notice was waived because Post-Newsweek failed to plead the issue with sufficient specificity in response to Cousins's initial and first amended complaints. Second, Cousins claims the presuit letter provided to Post-Newsweek complied with section 770.01. We agree only with the second point.

(1) Waiver of Compliance with Condition Precedent

Addressing the first issue, Cousins claims Post-Newsweek waived compliance with a condition precedent-here, section 770.01-when it failed to deny with specificity and particularity Cousins's general allegation addressing conditions precedent in the initial and the first amended complaints. We disagree, however.

Florida Rule of Civil Procedure 1.120(c) establishes a special pleading rule regarding the performance or occurrence of a condition precedent. Under this rule, it is sufficient for a claimant to "aver generally that all conditions precedent have been performed or have occurred." Id. Where the complaint alleges compliance with a condition precedent to suit, "the burden then shifts to the defendant to deny with specificity and particularity that the required notices were given, and to properly present this issue to the trial court in the context of a summary judgment motion or in a motion for judgment on the pleadings." Cabral v. City of Miami Beach, 76 So.3d 324, 326-27 (Fla. 3d DCA 2011) (internal citation omitted). By failing to timely and specifically raise the issue in the pleadings, a defendant waives the argument that a claimant did not meet a condition precedent. See Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla. 1991).

While citing to the pleading requisites of rule 1.120(c), Cousins claims he "repeatedly complied with [r]ule 1.120 by averring generally that he had complied with all conditions precedent," thereby requiring a specific negative averment by Post-Newsweek. But Cousins selectively quotes and omits a large portion of the condition precedent allegation provided in both the initial and the first amended complaints.

Our review of those complaints indicates Cousins exclusively addressed the School Board, one of five defendants, and his compliance with the notice provision set forth in Chapter 768, Florida Statutes. In addition to specifically addressing the School Board, and Chapter 768, Cousins included, within the same numbered allegation, factual assertions regarding the School Board's "opportunity to review the evidence supporting the claim as part of the statutory administrative review of the claim," and its failure to "respond[ ] to the opportunity to resolve this matter administratively." And finally, Cousins incorporated, again within the same allegation, the presuit notice directed to the School Board "as required under Sec[tion] 768.28."

On this record, where Cousins's initial allegations of performance of conditions precedent refer specifically to certain conditions inapplicable to Post-Newsweek, and to an entirely different defendant, we conclude Post-Newsweek was not required to specifically and particularly allege noncompliance with section 770.01 in those initial filings.

Notwithstanding Cousins's inadequate initial pleadings, other circumstances in the record support our rejection of Cousins's waiver argument. For example, Cousins cites to certain allegations contained in earlier, superseded complaints to emphasize he has "repeatedly complied with [r]ule 1.120"; and does not refer to allegations contained in subsequent operative complaints. See Oceanside Plaza Condo. Ass'n v. Foam King Indus., Inc., 206 So.3d 785, 787 (Fla. 3d DCA 2016) ("Long-standing Florida case law makes clear that the filing of an amended complaint constitutes an abandonment of the original complaint which [is] superseded, and it cease[s] to be part of the record and [can] no longer be viewed as a pleading.") (alterations, citations, and internal quotation marks omitted); see also Caraffa v. Carnival Corp., 34 So.3d 127, 130 (Fla. 3d DCA 2010) (stating rule that "[p]rior pleadings are superceded by the amendment").

Notably, in the subsequent amended complaints, Cousins clarified his underlying claims against Post-Newsweek and made substantive changes in support of those new allegations, including the allegations addressing compliance with conditions precedent. In each of the subsequent complaints, Post-Newsweek not only responded to the operative complaints, as required by Florida Rule of Civil Procedure 1.190(a), but also responded-with specificity and particularity-to the subsequent allegations regarding Cousins's compliance with conditions precedent, as required by Florida Rule of Civil Procedure 1.120(c).

Based on the circumstances of this case, and the stage of the litigation, we conclude Post-Newsweek was not precluded from raising the issue of compliance with conditions precedent. To the extent factual issues remain as to compliance with conditions precedent, those matters are premature and are unsuitable for resolution on a motion to dismiss. With this conclusion, we move to the second issue-that is, whether Cousins's presuit notice sufficiently complied with section 770.01.

(2) Sufficiency of Presuit Notice

Addressing the second issue, Cousins contends the written notice sent to Post-Newsweek, which identified certain "materially false statements" aired in broadcast reports, sufficiently complied with section 770.01. In response, Post-Newsweek claims the written notice was "legally insufficient to support [Cousins's] claim for defamation" as the notice inadequately specified the at-issue publications and statements upon which Cousins intended to sue. Given the stage of the underlying proceeding, and the fact the statements were aired over televised broadcasts, we disagree with Post-Newsweek and conclude Cousins's presuit notice sufficiently complied with section 770.01.

Before commencing a civil action for libel or slander, a potential plaintiff is required to follow the procedure provided in section 770.01. That statute, in full, states:

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.

Ordinarily, a plaintiff's "[f]ailure to comply with the notice provision of section 770.01 requires dismissal of the complaint for failure to state a cause of action." Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So.2d 1376, 1377 (Fla. 4th DCA 1997). But the sufficiency of notice, for purposes of compliance with the notice provision of section 770.01, depends on whether the alleged defamation is an oral statement or a written one.

According to Post-Newsweek, Cousins is required to "strict[ly] compl[y] with Section 770.01, Florida Statutes" in order to state a defamation claim against it for the statements allegedly made in the course of its televised broadcasts. But Post-Newsweek's exacting standard is not applied when, as here, the alleged defamation is by oral statement. Specifically, when the alleged defamation is by oral statement, it is sufficient for the pleader to "set out the substance of the spoken words with sufficient particularity to enable the court to determine whether the publication was defamatory." Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51, 55 (Fla. 3d DCA 1982). In other words, a "pleader need only state the essence of what the alleged defamer said." Scott v. Busch, 907 So.2d 662, 667 (Fla. 5th DCA 2005).

In reviewing Cousins's presuit notice, we find Cousins sufficiently complied with section 770.01 to state a cause of action for defamation. Significantly, Cousins notified Post-Newsweek, via written correspondence, of "materially false statements" publicly disseminated by Post-Newsweek in on-air broadcasts "during the first three weeks of August, 2005." In that correspondence, Cousins requested a retraction of three alleged defamatory statements, which, according to Cousins, described: "(1) that [he] got his Inspector General job as a result of cronyism and not through a proper selection process; (2) that [he] was not qualified for the job; and (3) that only 8 cases were closed in two years." Given that the alleged defamation was by oral statements, Cousins's retraction request, provided prior to the underlying suit, sufficiently complied with the statutory prerequisites for a defamation action. See Scott, 907 So.2d 662 ; Edward L. Nezelek, Inc., 413 So.2d 51.

Tellingly, Cousins's presuit notice enabled Post-Newsweek to investigate the allegations and thereupon, issue a partial clarification. See Ross v. Gore, 48 So.2d 412, 415 (Fla. 1950) (explaining section 770.01 "was enacted ... to afford to newspapers and periodicals an opportunity in every case to make a full and fair retraction in mitigation of the damages which a person may have suffered by reason of the publication") (emphasis omitted). In that clarification, Post-Newsweek not only referenced its "August ... story," but also provided clarification as to the number of cases Cousins's office had closed. This clarification lends support to the conclusion that Post-Newsweek was on notice of the alleged defamatory statements as required by section 770.01.

Because Cousins sufficiently complied with section 770.01, we find Cousins sufficiently pleads a claim for defamation, and that Post-Newsweek has not established a basis for dismissal with prejudice at this procedural stage of the case. We do not, however, express an opinion as to whether Cousins's allegations do, in fact, constitute defamation at this procedural stage of the case. See Miami Herald Pub. Co. v. Ane, 423 So.2d 376, 389 (Fla. 3d DCA 1982) (stating "where a publication is susceptible of two reasonable interpretations, one of which is defamatory, the issue of whether the publication was defamatory becomes one of fact and must be submitted to a jury... for a fact-finding determination"); accord Scott, 907 So.2d at 667. Nor do we express an opinion as to the essence of Cousins's claimed defamation. Simply put, we remand for the trial court to reinstate Cousins's third amended complaint as Cousins sufficiently complied with section 770.01 and states a cause of action for defamation.

Conclusion

Based on the foregoing, we find that because the trial court improperly dismissed Cousins's claims on the basis of insufficient presuit notice, we reverse and remand with instructions to reinstate Cousins's third amended complaint.

      Cousins's initial complaint contained the same allegation.

      Section 768.28(6), Florida Statutes (2007), sets forth a notice provision as a condition precedent to maintaining a suit against a governmental entity.

      Section 770.01, Florida Statutes (2007), sets forth a presuit notice requirement for certain civil actions for libel or slander.

      For Cousins to properly plead a claim for defamation, he must allege: "(1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory." Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008).

      We decline Post-Newsweek's invitation to affirm based upon the other grounds cited (but not ruled upon) in its motion to dismiss. We express no opinion as to the merits of Post-Newsweek's alternative grounds for dismissal.

      Because the trial court dismissed the negligent supervision count based on its dismissal of the defamation count, that claim should be reinstated. We need not address whether Cousins's third amended complaint sufficiently alleged an independent cause of action for negligent supervision.


text:
    John Edward SANDERS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1396
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019 Rehearing Denied April 01, 2019
    John Edward Sanders, Jr., in proper person.
    Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SALTER, SCALES and MILLER, JJ.
   PER CURIAM.

John Edward Sanders, Jr. appeals a June 22, 2018 denial of his Florida Rule of Criminal Procedure 3.800(a) Motion to Correct Illegal Sentence. In 1995, in lower tribunal case number F95-6485, a jury convicted Sanders of (i) burglary with an assault, (ii) robbery, and (iii) grand theft. The trial court sentenced Sanders as an habitual violent felony offender, pursuant to section 775.084(b) of the Florida Statutes (1995). This Court affirmed his conviction in Sanders v. State, 697 So.2d 856 (Fla. 3d DCA 1997) (table).

In 1995, the trial court based Sanders's habitual violent felony offender status on his conviction in lower tribunal case number F91-45810, in which Sanders pled no contest to three counts of armed robbery and was sentenced to five years in prison. In the instant appeal, Sanders argues that, in 1995, the trial court had inaccurate pre-sentencing information upon which to determine Sanders's habitual violent felony offender status. This argument is a variation of an argument Sanders made in an earlier and unsuccessful rule 3.800 motion. In his 2009 motion, Sanders maintained that his enhanced sentence was improperly based on a 1992 crime in which he also pled guilty (lower tribunal case number F92-17107). The trial court determined and we affirmed that Sanders's habitual violent felony offender sentence enhancement was based on the 1991 crimes of armed robbery. Sanders v. State, 26 So.3d 593 (Fla. 3d DCA 2009) (table).

We again confirm that Sanders's habitual violent felony offender status and accompanying sentence enhancement were based on his 1991 convictions for armed robbery; that armed robbery was an appropriate predicate crime for habitual violent felony offender status under the version of section 775.084(b) in effect at the time of his sentencing; and that the trial court's sentencing of Sanders was not blemished by any misunderstanding of his past misdeeds.

We, therefore, affirm the trial court's denial of Sanders's October 12, 2017 rule 3.800 motion.

ORDER TO SHOW CAUSE

Sanders is hereby directed to show cause, within forty-five days of the date of this opinion, as to why he should not be prohibited from filing further pro se appeals, petitions, motions or other pleadings related to his conviction in circuit court case F95-6485.

If Sanders does not demonstrate good cause, we will direct the Clerk of this Court not to accept any such filings unless they have been reviewed by, and bear the signature of, a licensed attorney in good standing with the Florida Bar.

Additionally, and absent a showing of good cause, any further and unauthorized filings by Sanders will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2018).

Affirmed; show cause order issued.

      Sanders received a life sentence with a fifteen-year minimum mandatory for burglary with an assault, a thirty-year sentence with a ten-year minimum mandatory for robbery, and a ten-year sentence with a five-year minimum mandatory for grand theft. The sentences were to be served concurrently.

      During his years of incarceration, Sanders has filed several, additional, unsuccessful motions for post-conviction relief: Sanders v. State, 138 So.3d 457 (Fla. 3d DCA 2014) (table); Sanders v. State, 134 So.3d 467 (Fla. 3d DCA 2014) (table); Sanders v. State, 13 So.3d 1066 (Fla. 3d DCA 2009) (table); Sanders v. State, 959 So.2d 739 (Fla. 3d DCA 2007) (table); Sanders v. State, 906 So.2d 1075 (Fla. 3d DCA 2005) (table); and Sanders v. State, 728 So.2d 231 (Fla. 3d DCA 1998) (table).


text:
    SAFEPOINT INSURANCE COMPANY, Appellant, v. Daisy SOUSA, Appellee.
    No. 3D18-1842
    District Court of Appeal of Florida, Third District.
    Opinion filed April 17, 2019 Rehearing Denied June 12, 2019
    Butler Weihmuller Katz Craig and Anthony J. Russo and Mihaela Cabulea (Tampa), for appellant.
    Marin, Eljaiek, Lopez & Martinez and Anthony M. Lopez, for appellee.
    Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
   SALTER, J.

Safepoint Insurance Company ("Insurer") appeals an order granting a motion by its insured, Daisy Sousa ("Insured"), to compel appraisal pursuant to a provision of a residential insurance policy ("Policy") issued by the Insurer. The appraisal was sought in connection with damage caused by Hurricane Irma in September 2017. Because the record demonstrates that the Insured failed to comply with the post-loss conditions of the Policy, we reverse the order and remand the case to the trial court.

Two days after the loss, a public adjuster reported the nature and general extent of the damage to the Insurer on behalf of the Insured. The Insurer's claims representative visited the property and prepared an itemized, 15-page estimate of replacement cost value, a total of $ 47,838.64, for the claim in November 2017. The Insurer requested the Insured to submit a sworn proof of loss as required by the Policy.

When the sworn proof of loss was not forthcoming, the Insurer sent the Insured a notice of examination under oath ("EUO"), requesting documents pertaining to the damage and claim, including a renewed request for a sworn proof of loss. The Insured provided testimony and a limited number of documents at the EUO at the end of November 2017, but did not submit a sworn proof of loss. The Insurer renewed its request for a sworn proof of loss and supporting documents in January 2018 and twice in February.

At the end of February, the Insurer tendered a payment of $ 47,838.64, the itemized amount computed by its claims representative three months earlier. The Insured responded in March with the circuit court lawsuit that has culminated in this appeal. The amended complaint for breach of the Policy contended that the Insurer had refused to pay the full amount of the claim.

The Insured moved in May 2018 to compel appraisal, based on the differing computations of loss and replacement value computed by the parties' estimators. The motion for appraisal included a detailed, 23-page loss estimate for the Insured's claim, totaling $ 177,366.41, dated March 27, 2018. That estimate was prepared by the Insured's public adjuster, "Leading Public Adjusters, Inc." According to the record before us, the estimate was not submitted previously to the Insurer with a sworn proof of loss, with supporting documents, or at the time of the Insured's EUO. The Insurer opposed the motion based on the Insured's failure to comply with the Policy's post-loss requirements. Following a non-evidentiary hearing, the trial court granted the motion, and the Insurer appealed.

Analysis

Our review of the Policy provisions pertaining to coverage, post-loss conditions, appraisal, and conditions precedent to suit, are subject to de novo review. Noa v. Fla. Ins. Guar. Ass'n., 215 So.3d 141, 143 (Fla. 3d DCA 2017). In this case, section I.8. of the Policy provides that no lawsuit can be commenced against the Insurer unless "[t]here has been full compliance with all of the terms of this policy." The obligations to provide a sworn proof of loss and documents supporting the claim are also spelled out clearly in the Policy.

In United States Fidelity & Guaranty Co. v. Romay, 744 So.2d 467, 471 (Fla. 3d DCA 1999) (en banc), this Court held that appraisal and suit are premature when the Insured has failed to comply with a residential insurance policy's post-loss conditions. We have applied that principle through multiple hurricanes and the subsequent claims. See, e.g., State Farm Fla. Ins. Co. v. Fernandez, 211 So.3d 1094, 1095 (Fla. 3d DCA 2017) ("It is well-settled in Florida that all post-loss obligations must be satisfied before a trial court can exercise its discretion to compel appraisal."). The Insured's generalized description of loss at her EUO does not constitute a "sworn proof of loss" in compliance with the Policy, and the Insured has offered no reason for the failure to submit the public adjuster's itemized claim report before, rather than after, the EUO and lawsuit.

The order granting the Insured's motion to compel appraisal is reversed and vacated.

      The order directing appraisal is an appealable non-final order. See Fla. R. App. P. 9.130(a)(3)(C)(iv).


text:
    Joseph BUTLER, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2711
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
   PER CURIAM.

Affirmed. See §§ 775.084(4)(c)(1), 812.13(2)(b), Fla. Stat. (1997) ; Davis v. State, 235 So.3d 320 (Fla. 2018) ; Carbajal v. State, 75 So.3d 258 (Fla. 2011) ; State v. King, 426 So.2d 12 (Fla. 1982) ; Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006) ; Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004) ; Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991) ; McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002) ; Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998) ; Luchak v. State, 606 So.2d 494 (Fla. 4th DCA 1992).

NORTHCUTT, SALARIO, and ROTHSTEIN-YOUAKIM,JJ., Concur.


text:
    Brian M. CASEY, Appellant, v. Mark S. INCH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D18-5277
    District Court of Appeal of Florida, First District.
    April 29, 2019 Rehearing Denied July 03, 2019
    Brian M. Casey, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Villareal v. Craig , 813 So.2d 984 (Fla. 1st DCA 2002) ; Sciabbarrasi v. Uddo , 466 So.2d 19 (Fla. 5th DCA 1985) (holding an order denying leave to amend an answer/counterclaim is not appealable).

Lewis, Wetherell, and Jay, JJ., concur.


text:
    Bruno DIPASQUALE, Appellant, v. Lisette DIPASQUALE, Appellee.
    Case No. 2D17-2266 2D17-2267 CONSOLIDATED
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    Raymond J. Rafool and David R. Hazouri of Rafool, LLC, Miami, for Appellant.
    Cynthia B. Hall of Silveri & Ball, P.A., Naples, for Appellee.
   PER CURIAM.

In this consolidated appeal, Bruno DiPasquale appeals from the final judgment dissolving his marriage to Lisette DiPasquale and from the order denying his motion to modify the parties' partial marital settlement agreement (PMSA). We affirm without prejudice to Mr. DiPasquale asserting the arguments he has raised in this appeal in a subsequent petition for modification. Cf. Dogoda v. Dogoda, 233 So.3d 484, 488 (Fla. 2d DCA 2017) ("In cases involving an MSA, the effective date of the agreement establishes the date to which a trial court should look in determining whether a substantial change in circumstances was contemplated by the parties.").

Affirmed.

CASANUEVA, KELLY, and LUCAS, JJ., Concur.


text:
    James Arthur LEE Appellant, v. State of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
    No. 3D19-389
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    James Arthur Lee, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   PER CURIAM.

James Arthur Lee filed a notice of appeal from the trial court's order denying his petition for writ of mandamus. On March 6, 2019, we dismissed this appeal because, by previous order entered by this Court in case number 3D03-1393, James Arthur Lee was prohibited from filing any pro se appeals or petitions related to his conviction and sentence (or related to his prisoner status resulting from his conviction and sentence) in lower tribunal case number 96-6742. We further directed Lee to show cause why he should not be sanctioned for violating this Court's order in 3D03-1393 by continuing to file pro se pleadings with this Court related to lower tribunal case number 96-6742.

Lee has filed a document which we treat as his response to the show cause order. Following our review, we conclude that James Arthur Lee has failed to show cause why he should not be sanctioned for violating this Court's order in 3D03-1393, by continuing to file pro se pleadings with this Court related to lower tribunal case number 96-6742. We further note that appellant previously attempted to file pro se pleadings in 3D17-1231, resulting in a similar dismissal order.

We prohibit James Arthur Lee from filing any pro se pleading or paper with this Court related to lower tribunal case number 96-6742, or related to his prisoner status resulting from his conviction and sentence in case number 96-6742. We hereby direct the Clerk of this Court to refuse to accept any such pleading or paper relating to lower tribunal case number 96-6742 unless it has been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Additionally, we direct the Clerk of this Court to forward a copy of this order to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2018).

      Case number 96-6742 is Lee's conviction and sentence and case number 18-35897 is Lee's pro se petition for writ of mandamus, filed with the circuit court (and assigned a separate case number) seeking the issuance of a writ of mandamus directed to the Florida Department of Corrections, arising out of and related to Lee's incarcerative status following his conviction and sentence in 96-6742.


text:
    Cristina SUAREZ, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D18-1287
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019. Rehearing Denied JUNE 07, 2019
    David F. Garcia, Coconut Grove, Marin, Eljaiek, Lopez & Martinez, and Steven E. Gurian, for appellant.
    Maureen G. Pearcy, Coral Gables, and Hinshaw & Culbertson, for appellee.
    Before SALTER and LINDSEY, JJ., and LEBAN, Senior Judge.
    On Partial Concession of Error
   PER CURIAM.

Cristina Suarez (the "Insured") appeals a final judgment awarding the defendant, Citizens Property Insurance Corporation (the "Insurer"), attorney's fees as the prevailing party in a circuit court lawsuit. We affirm as to entitlement to fees, as the Insurer's proposal for settlement complied with section 768.79, Florida Statutes (2018), and the Florida Supreme Court's holdings in Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So. 3d 391, 395-96 (Fla. 2016).

We reject the Insured's argument that her separate count for declaratory relief (voluntarily dismissed on the first day of trial) was a claim for purely equitable relief that invalidated the Insurer's proposal for settlement. The trial court correctly determined that the "real issue" in the case was a claim for breach of contract and money damages. See Tower Hill Signature Ins. Co. v. Javellana, 238 So. 3d 372, 376-77 (Fla. 3d DCA 2017).

Based on the Insurer's limited and proper concession of error, we reverse and remand that portion of the final judgment fixing the amount of attorney's fees to be awarded to the Insurer. On remand, the Insurer shall only recover those attorney's fees incurred and actually paid or payable to its attorneys by the Insurer, from service of the 2016 proposal for settlement through the date of the order granting entitlement to fees. See § 768.79(1), Fla. Stat. (2018) ; Reliance Mut. Life Ins. Co. of Ill. v. Booher, 166 So. 2d 222, 224 (Fla. 2d DCA 1964) (applying dictionary definition of "incurred").

The final judgment is affirmed as to the Insurer's entitlement to attorney's fees, and (pursuant to the Insurer's limited concession of error) reversed and remanded as to the amount of such fees to be awarded to the Insurer.


text:
    Adam Russell MILLER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2818
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2019 Rehearing Denied July 12, 2019
    Adam Russell Miller, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Adam Miller appeals his convictions and sentences after pleading to four counts of scheme to defraud over $ 50,000 and one count of scheme to defraud over $ 20,000. We affirm Miller's convictions and sentences without further comment. However, because the order of probation erroneously omits Miller's sentence on count three, we remand for the correction of the written probation order to conform to the oral pronouncement on count three. See Powell v. State, 223 So.3d 412, 414 (Fla. 5th DCA 2017) ; Williams v. State, 604 So.2d 8, 10 (Fla. 1st DCA 1992).

Affirmed; remanded with instructions.

LaROSE, C.J., and KHOUZAM and SLEET, JJ., Concur.


text:
    Mack WELLS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D19-0761
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019 Rehearing Denied June 12, 2019
    Mack Wells, in proper person.
    Blank Rome LLP, and Nicole R. Topper, and Daniel S. Hurtes (Ft. Lauderdale), for appellee.
    Before EMAS, C.J., and FERNANDEZ, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Fla. R. App. P. 9.315(a) ("After service of the initial brief in appeals under rule 9.110, 9.130, or 9.140, ... the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated."); Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) ("When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal."); Cudeiro v. Dep't of Revenue ex rel. Fritz, 99 So. 3d 520, 520 (Fla. 3d DCA 2011) (explaining Starks v. Starks, 423 So. 2d 452, 453-54 (Fla. 1st DCA 1982) as follows: "without a transcript of the hearing, the appellate court is unable to ascertain whether the lower court erred; noting that '[t]he appellant retains the burden of overcoming the presumption of correctness attributed to a trial court's final judgment. Appellant's burden includes a demonstration of error from the record , which he must supply' " (quoting Kauffmann v. Baker, 392 So. 2d 13, 15 (Fla. 4th DCA 1980) )).


text:
    Ihosvanny ALBEAR, Appellant, v. Louis M. HILLMAN-WALLER, as Curator of the Estate of Roberto Albear, Adriana Ulloa, and Royal Park Enterprises, LLC, Appellees.
    No. 3D19-0130
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019 Rehearing Denied June 12, 2019
    Andrew M. Kassier, P.A., and Andrew M. Kassier, for appellant.
    Armas Bertran Pieri, and J. Alfredo Armas, for appellee Adriana Ulloa.
    Before SALTER, LINDSEY, and HENDON, JJ.
    ON MOTION TO DISMISS
   PER CURIAM.

Ihosvanny Albear appeals a final judgment entered following a bench trial. Appellees move to dismiss on the basis that, because there is no transcript of the trial below, Albear cannot meet his burden to show error. We agree and affirm because the 15-page final judgment contains numerous factual findings and there is no record of the trial. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal."); see also Cudeiro v. Dep't of Revenue ex rel. Fritz, 99 So.3d 520, 520 (Fla. 3d DCA 2011) (explaining Starks v. Starks, 423 So.2d 452, 453-54 (Fla. 1st DCA 1982) as follows: "without a transcript of the hearing, the appellate court is unable to ascertain whether the lower court erred; noting that '[t]he appellant retains the burden of overcoming the presumption of correctness attributed to a trial court's final judgment. Appellant's burden includes a demonstration of error from the record , which he must supply' " (quoting Kauffmann v. Baker, 392 So.2d 13, 15 (Fla. 4th DCA 1980) )).

Affirmed.

      Appellees allege in their motion to dismiss that the parties agreed to try the case without a court reporter "hoping for finality."


text:
    Hanoi HORMACHEA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1710
    District Court of Appeal of Florida, Third District.
    Opinion filed May 15, 2019 Rehearing Denied July 12, 2019
    Hanoi Hormachea, in proper person.
    Ashley Moody, Attorney General and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Crim. P. 3.570 ("No irregularity in the rendition or reception of a verdict may be raised unless it is raised before the jury is discharged. No irregularity in the recording of a verdict shall affect its validity unless the defendant was in fact prejudiced by the irregularity."); Sanchez v. State, 490 So.2d 198 (Fla. 3d DCA 1986).


text:
    Joseph JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2193
    District Court of Appeal of Florida, First District.
    May 10, 2019 Rehearing Denied June 26, 2019
    Joseph Johnson, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Amanda BROWN, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, Christopher Brown and Covington Park of Winter Garden Owners Association, Appellees.
    Case No. 5D18-1084
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 21, 2019 Rehearing Denied July 11, 2019
    Amanda Brown, Winter Garden, pro se.
    Roy A. Diaz, of SHD Legal Group, P.A., Ft. Lauderdale, for Appellee, Wilmington Savings Fund Society, FSB.
    No Appearance for other Appellees.
   PER CURIAM.

AFFIRMED. See IndyMac Federal Bank FSB v. Hagan, 104 So.3d 1232 (Fla. 3d DCA 2012).

BERGER, LAMBERT and GROSSHANS, JJ., concur.


text:
    John Edward SANDERS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1396
    District Court of Appeal of Florida, Third District.
    Opinion filed May 15, 2019.
    John Edward Sanders, Jr., in proper person.
    Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SALTER, SCALES and MILLER, JJ.
   PER CURIAM.

On March 13, 2019, this Court issued an opinion affirming the trial court's denial of appellant John Edward Sanders Jr.'s rule 3.800 motion that sought to correct an allegedly illegal sentence. Our opinion contained an order to show cause why Sanders should not be prohibited from filing with this Court any further pro se appeals, petitions, motions or other proceedings related to his criminal sentence in circuit court case number F95-6485.

Sanders responded to the order to show cause on April 15, 2019. Sanders's response raises no new information or argument for our consideration. Accordingly, we conclude that Sanders has not shown good cause to justify further pro se filings of appeals, petitions, motions, or other proceedings with this Court.

It is hereby ordered that the Clerk of the Court of the Third District Court of Appeal shall refuse further filings related to case number F95-6485; provided, however, that filings related to case number F95-6485 may be accepted by the Clerk if such filings have been reviewed and signed by an attorney who is a licensed member of the Florida Bar in good standing.

Any further and unauthorized pro se filings by Sanders will subject him to sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for consideration by it for disciplinary action, pursuant to section 944.279(1) of the Florida Statutes.

Order issued.


author: EMAS, C.J.

text:
    Gino FALSETTO, et al., Appellants, v. Mitchell LISS, et al., Appellees.
    No. 3D18-794
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019.
    The Ferro Law Firm, P.A., and Simon Ferro, Jr., for appellants.
    Wolfe Law Miami, P.A., and Richard C. Wolfe, Miami, for appellees.
    Before EMAS, C.J., and LINDSEY and HENDON, JJ.
   EMAS, C.J.

INTRODUCTION

Appellants, Gino Falsetto and Bernard Siegel, appeal an adverse partial summary judgment on their counterclaim and third-party claim against their former business partner, appellee Mitchell Liss. The trial court concluded that the parties' 2014 Settlement Agreement (which included a general release) discharged appellants' fraud claims, and that "there is no issue of contested fact that the allegations of Fraud did not occur prior to the [2014 Agreement]."

We reverse, holding a genuine issue of material fact remains in dispute: whether appellants knew or reasonably should have known about the alleged fraud in 2014 when the release was signed-in other words, whether appellants' fraud claims had "accrued" at the time of the execution of the release.

FACTS AND PROCEDURAL BACKGROUND

A. The 2014 Settlement Agreement and General Release

Gino Falsetto and Mitchell Liss owned and operated three valet parking businesses: Double Park, Paradise Systems, and South Park. By agreement, "the parties were entitled to equal distributions and profits from the companies." However, the parties had a falling out and, in April 2014, Liss sued Falsetto for injunctive relief, appointment of a receiver, judicial dissolution of the companies, and monetary damages. In June 2014, the parties entered into the subject Settlement Agreement (2014 Agreement), which released the parties

from any and all disputes, claims, causes of action, ... whether past or present, known or unknown , filed or unfiled at present with any federal, state, or municipal court .... from the beginning of the world to the Effective Date of this Agreement.

(Emphasis added). It also provided that: "The releases contained in this Agreement are intended to be as broad and inclusive as Florida law permits." Both parties were represented by counsel.

B. The Complaint, Counterclaim and Third-Party Claim

In February 2016, Liss and DP Systems sued Falsetto, Siegel, Double Park, Paradise Parking, and South Park for breach of the 2014 Agreement, alleging that appellants stopped making payments required under the 2014 Agreement. Appellants, in response, filed a counterclaim and third party claim against Liss, DP Systems, and John Battaglia (Liss' business partner in DP Systems), alleging that Liss perpetrated a fraud and stole money from Paradise Parking. According to appellants, between 2010 and 2014 (before the 2014 Agreement was signed), Liss used his own company (DP Systems) to enter into a lucrative parking services contract with Latitude Condominium Association (Latitude). The "illegal subcontract," they explained, provided Liss $ 30,000 a month for his company's services. Meanwhile, Liss was using Paradise Parking (appellant) to provide all of the parking services to the Latitude and paying appellants only a nominal fee ($ 1000/month). Appellants alleged that they discovered the fraudulent arrangement during discovery in Liss's breach of contract lawsuit.

C. Motion for Summary Judgment

Liss moved for summary judgment on the counterclaim and defenses, contending they were barred by the 2014 Agreement's general release. To support his motion, Liss relied in part on an email between Falsetto and Liss dated June 5, 2014. Liss contended that the email showed Falsetto knew or should have known about the alleged fraud at the time the parties entered into the 2014 Agreement. Appellants filed a response with attachments including separate affidavits from Siegel and Falsetto, stating that, at the time the 2014 Agreement was executed, they did not know (nor could they have known) Liss and Battaglia were partners in DP Systems or that they had created the company "to compete with Paradise and Double Park" and to "steal business" by "confusing prospective customers into believing that they were contracting with Double Park and/or its affiliates." Both maintained they only learned of the fraud during discovery in Liss's breach of contract lawsuit.

At the hearing on the motion, appellants contended that the trial court could not consider the June 5th email in support of appellees' motion for summary judgment, because it had not been authenticated. Appellants further contended that the fraud claims had not yet accrued at the time the 2014 Agreement was signed because appellants did not know nor should they reasonably have known about the alleged fraud. The trial court did not explicitly rule on the admissibility of the June 5th email. However, in its order granting the motion, the trial court found that the 2014 Agreement released the claims of fraud because the alleged fraud occurred before the 2014 Agreement was signed, and that the June 5th email "clearly demonstrates that [appellants] knew or should have known of the facts supporting the claim of fraud ...." This appeal followed.

DISCUSSION

Liss generally argues first, that the fraud claims are barred because the release prohibits "known and unknown claims;" and second, that the June 5th email shows appellants knew or should have known about the alleged fraud, specifically Liss's arrangement with Latitude. We find no merit in either argument.

"[T]he courts' willingness to enforce general releases is not absolute."

Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 315 (Fla. 2000). Instead, "enforcement is premised upon the assumption that the released claims are those that were contemplated by the agreement." Id. Florida courts, including this Court, have explained that "a general release ... does not bar a claim which had not yet accrued when the release was executed." Hold v. Manzini, 736 So.2d 138, 141 (Fla. 3d DCA 1999) ; see e.g., Schornberg v. Panorama Custom Home Builders, Inc., 972 So.2d 243 (Fla. 2d DCA 2007) ; The Plumbing Serv. Co. v. Traveler's Cas. and Sur. Co., 962 So.2d 1056 (Fla. 5th DCA 2007) ; Floyd v. Homes Beautiful Constr. Co., 710 So.2d 177 (Fla. 1st DCA 1998).

Despite Liss's argument to the contrary, a release of an "unknown" claim does not necessarily release an "unaccrued" or future claim, as the terms are not synonymous. For instance, in Schornberg, Traveler's and Floyd, the reviewing courts found that, to bar unknown claims in those cases, the claims must have accrued at the time the release was executed. Compare Schornberg, 972 So.2d at 244 (release language: the homeowner "releases and discharges Builder ... from any and all claims, ... including, without limitation, attorneys' fees, of any nature whatsoever, known or unknown , suspected or unsuspected, existing at any time on or before the Effective Date") (emphasis added); Traveler's, 962 So.2d at 1057 (release language: the parties agreed to "waive, discharge and satisfy all causes of action whether known or unknown , demands of every kind or character and any and all claims they have or may have whether known or unknown against THE PLUMBING SERVICE COMPANY its employees and/or officers from the beginning of the world through the date hereof") (emphasis added); Floyd, 710 So.2d at 178 (release language: the parties entered into a settlement and release agreement releasing Homes Beautiful from "any claim or cause of action presently existing , whether known or unknown , including but not necessarily limited to the [1986 civil suit]") (emphasis added); with Columbia Bank v. Columbia Devs., LLC, 127 So.3d 670, 673 (Fla. 1st DCA 2013) (explaining the bank agreed to "release, remise, acquit and forever discharge Ross, Edwards, Smith [Jr.] and NFLG ... from all ... causes of action, of every kind and nature, accrued or unaccrued, now known or hereafter discovered , at law or in equity relating in any way to the Loan Documents and/or to the Property, ...") (alterations omitted) (emphasis added); Patco Transp., Inc. v. Estupinan, 917 So.2d 922, 923 (Fla. 1st DCA 2005) (finding a general release precluded an employee's petition for workers' compensation benefits where it barred "any and all past, present or future claims , ... which the Plaintiff now has, or which may hereafter accrue or otherwise be acquired , on account of, or may in any way grow out of, or which are the subject of the Complaint (and all related pleadings)") (emphasis added). Because the Agreement in this case mutually released the parties from claims "past or present, known or unknown"-but did not release future or unaccrued claims-its plain language requires us to hold that the parties were only released from causes of actions that had accrued at the time the parties signed the 2014 Agreement.

Liss relies on Braemer Isle Condominium Association, Inc. v. Boca Hi, Inc., 632 So.2d 707 (Fla. 4th DCA 1994) to suggest that because the 2014 Agreement released all "known or unknown" claims, it does not matter whether appellants knew or did not know about the alleged fraud. This reliance is misplaced. In Braemer, the condominium association "released all of the appellees for all claims (both known and unknown, as to one, and all future claims as to the others ), which arose out of the construction of the condominium." Id. at 707 (emphasis added). The Second District held that the release of all claims in a prior lawsuit was enforceable in the second lawsuit even though the defects alleged in the second case "were not discoverable at the time it settled its prior lawsuit and executed releases to these defendants." Id. Unlike here, however, the contract in Braemer released the appellees from "all future claims." See Floyd, 710 So.2d at 179 (distinguishing Braemer because the agreement in that case released "future" claims). The language in the 2014 Agreement renders the instant case distinguishable.

Because we conclude that the release does not bar unaccrued (or future) claims, we reach appellants' second argument-that the trial court erred in granting summary judgment in favor of appellee because a genuine issue of material fact remains in dispute: Whether the fraud claims had "accrued" at the time the parties executed the 2014 Agreement. We find there is a genuine issue of material fact, and therefore the trial court erred in granting summary judgment on appellants' fraud claims.

"The essential elements of a fraud claim are: (1) a false statement concerning a specific material fact; (2) the maker's knowledge that the representation is false; (3) an intention that the representation induces another's reliance; and (4) consequent injury by the other party acting in reliance on the representation." Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002). A fraud action accrues when the last element occurs or "when the plaintiff knew, or through the exercise of due diligence should have known, of the facts constituting the fraud." Smith v. Bruster, 151 So.3d 511, 514 (Fla. 1st DCA 2014). The question then is whether appellants knew or should have known about the fraud at the time the parties signed the 2014 Agreement.

In answering this question, we first hold that the trial court erred in relying on the unauthenticated June 5th email. See Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011) (holding: "The unauthenticated copies of default letters purportedly sent to Bryson by BB & T were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on a motion for summary judgment") (citing Tunnell v. Hicks, 574 So.2d 264, 266 (Fla. 1st DCA 1991) (explaining that the court could not consider certain documents in its summary judgment decision because "Tunnell failed to attach either document to affidavits that presumably would have ensured their admissibility")); see also Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997) (holding: "Merely attaching documents which are not 'sworn to or certified' to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).")

Because the June 5th email should not have been considered, the evidence before the court on this question consisted of the allegations contained in the Falsetto and Siegel affidavits. The affidavits generally asserted that: Neither Siegel nor Falsetto knew or could have known that, at the time they executed the 2014 Agreement, Liss and Battaglia were partners in DP Systems and created the company "to compete with Paradise and Double Park and steal business from Paradise and Double Park by ... confusing prospective customers into believing that they were contracting with Double Park and/or its affiliates," or that they "actually had a lucrative $ 30,000+ per month contract with Latitude."

Falsetto and Siegel also averred they discovered the alleged fraud during discovery in Liss's 2016 breach of contract lawsuit. These affidavits created a genuine issue of material fact on the question of whether Falsetto knew or reasonably should have known of the alleged fraud when he entered into the 2014 Agreement with Liss.

CONCLUSION

The 2014 Agreement's plain language released the parties only from "known or unknown" claims, not future or unaccrued claims. Because there is a genuine issue of material fact as to whether the fraud claim had accrued- that is, whether Falsetto knew or through the exercise of due diligence should have known about the alleged fraud at the time the 2014 Agreement was executed-the trial court erred in granting summary judgment on those fraud claims. We reverse and remand for further proceedings.

      The parties' respective companies are also parties to the lawsuit. The appellant companies include: Double Park, LLC, Paradise Systems, LLC, and South Park, LLC. The appellee company is DP Systems.

      Battaglia was dismissed as a party in this appeal.

      The email read: "John Battaglia has been your partner and he still is and you and he have been operating the Parking operations at the Latitude since inception mostly for his benefit and yours.... You had always denied that John Battaglia was involved. Then when I confronted you with facts you finally admitted that you and John were partners. I know exactly who South Florida Management is so do not pretend that you are not involved .... [P]lease be advised that we will be addressing all of the outstanding and pending claims, lawsuit and other liabilities that you and John are clearly responsible for as Operators of the Latitude Account."


text:
    Delilah ALONSO, Appellant, v. Fernando I. DE ZARRAGA, Appellee.
    Nos. 3D18-1127 & 3D18-457
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019 Rehearing Denied June 12, 2019
    Kutner and Associates; Young, Berman, Karpf & Gonzalez, P.A., and Cynthia L. Greene, Miami, for appellant.
    Perez-Abreu & Martin-Lavielle, P.A., and Andy W. Acosta and Javier Perez-Abreu, Coral Gables, for appellee.
    Before EMAS, C.J., and SALTER and LOGUE, JJ.
   EMAS, C.J.

In this consolidated appeal, the Former Wife appeals from an order determining where the parties' minor child should attend school, and an order imposing upon Former Wife a "sanction" of $ 12,500.

We affirm the first order, as the trial court's determinations (which were made following an evidentiary hearing) are supported by competent substantial evidence.

However, we reverse that portion of the trial court's second order imposing a sanction of $ 12,500 against the Former Wife, as we conclude this sanction was imposed as an indirect criminal contempt: The order contains no purge provision, and there is no language in the order to indicate it is intended to coerce the Former Wife's compliance with any order or obligation. Indeed, the trial court stated that this was imposed as a sanction for the actions of the Former Wife.

Further, there is nothing in the order to indicate how the trial court computed or otherwise arrived at the substantial figure of $ 12,500; we do know, however, that this figure does not represent attorney's fees incurred by the Former Husband, because the trial court contemporaneously ordered the Former Wife to pay the Former Husband's attorney's fees for these same aspects of the litigation.

Thus, we reach the inescapable conclusion that the court imposed this $ 12,500 fine as an indirect criminal contempt. See, e.g., Berlow v. Berlow, 21 So. 3d 81, 84 (Fla. 3d DCA 2009) (holding: "As the contempt order did not contain a purge provision, the $ 5,000 fine is a 'flat, unconditional fine,' which is 'considered a criminal sanction because it does not allow the contemnor to purge the contempt through compliance' ") (citations omitted). See also In re Steffens, 988 So. 2d 142, 144 (Fla. 5th DCA 2008) (holding: "As the order fining Mr. Steffens did not include a purge or coercive provision, the contempt could not have been civil in nature"); Baker v. Green, 732 So. 2d 6, 7 (Fla. 4th DCA 1999) (holding: "The order is properly characterized as involving indirect criminal contempt, since a $ 10,000 fine was imposed to punish Baker for her disobedience of the trial court's previous orders and to deter similar conduct in the future.")

We therefore affirm the order on appeal in 3D18-1127. We vacate that portion of the order on appeal in 3D18-457 which imposes a sanction of $ 12,500, and affirm the remainder of that order.

      See, e.g., Goldman v. Estate of Goldman, 166 So. 3d 927 (Fla. 3d DCA 2015) where this court observed that while a trial court has the inherent authority to impose attorney's fees for bad faith conduct, such a sanction must contain an express determination of bad faith and be supported by detailed factual findings of the specific acts of bad faith conduct resulting in unnecessary attorney's fees. We further noted that the "amount of the award of attorneys' fees must be directly related to the attorneys' fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney," and this sanction "is appropriate only after notice and an opportunity to be heard-including the opportunity to present witnesses and other evidence." Id. at 929 (quoting Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002) ).

      We do not reach the merits of the trial court's decision to impose this sanction, but hold simply that the trial court failed to strictly comply with the required procedure established in Florida Rule of Criminal Procedure 3.840 for imposing an indirect criminal contempt sanction. Berlow, 21 So. 3d at 84 (noting that "indirect criminal contempt may be punished only after strict compliance with the guidelines set forth in Florida Rule of Criminal Procedure 3.840" and that "failure to strictly follow rule 3.840 constitutes fundamental, reversible error") (quotations and citations omitted).


text:
    Jonelle GODIN, Appellant, v. Chris OWENS, Appellee.
    Case No. 5D18-1176
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019 Rehearing Denied July 11, 2019
    Jonelle Godin, Winter Park, pro se.
    Christopher H. Morrison, of Pratt and Morrison, P.A., Winter Park, for Appellee.
   PER CURIAM.

Jonelle Godin appeals the final judgment of paternity that establishes time-sharing and child support concerning her two minor children with Chris Owens. We affirm the final judgment of paternity, without discussion, in all respects except for the child support obligation because the trial court made its ruling after Mother filed her motion to disqualify or recuse.

Generally, a trial court must grant a legally sufficient motion to disqualify immediately and may not take any further action in the matter. Berry v. Berry, 765 So. 2d 855, 857 (Fla. 5th DCA 2000) ; see also Loevinger v. Northrup, 624 So. 2d 374, 375 (Fla. 1st DCA 1993) ("A judge faced with a motion for recusal should first resolve that motion before making any other rulings in a case." (citing Mackenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990) )). The trial court, however, maintains the authority to perform the ministerial duty of preparing a written order to reflect oral pronouncements made before the motion to disqualify. Curran v. Curran, 760 So. 2d 1136, 1137 (Fla. 5th DCA 2000) (citing The Florida Bar v. Wilson, 714 So. 2d 381, 383 (Fla. 1998) ); see also Fischer v. Knuck, 497 So. 2d 240, 243 (Fla. 1986) (finding trial court had jurisdiction to reduce its ruling in dissolution proceeding to writing after filing of motion for disqualification because case had been tried and orally ruled upon prior to motion to disqualify). This exception does not apply if the final judgment or order provides details not articulated in the trial court's prior oral pronouncement. Parnell v. Parnell, 113 So. 3d 989, 990-91 (Fla. 5th DCA 2013). In that instance, substantive changes in the trial court's ruling are not ministerial and are considered void. Id. at 990-91.

Here, the trial took place before Mother filed her motion to disqualify, and the written judgment comports with the extensive oral findings and rulings the trial court made at the end of trial. This includes oral findings as to income that are supported by competent, substantial evidence. The trial court, however, did not make any oral findings as to the proposed child support guidelines worksheets, and the parties' respective child support guidelines worksheets are at odds. Although the trial court had a separate hearing before Mother filed her motion to disqualify where it appears it considered the child support guidelines, the court minutes indicate that the trial court reserved its ruling. The trial court set the child support amount a few days after Mother filed her motion to recuse and the day before it issued the order recusing itself. Consequently, the trial court exceeded its authority when it ruled on the child support obligation. See Plaza v. Plaza, 21 So. 3d 181, 182-83 (Fla. 3d DCA 2009) (reversing judgment where trial judge directed mother's attorney to prepare and submit proposed order reflecting trial judge's pronouncements after hearing, the parties disputed what occurred at hearing, trial judge made changes to proposed order, and there was no transcript to determine whether order matched factual findings and oral pronouncements made by judge at hearing).

Accordingly, we reverse the amount of the child support obligation and remand for further proceedings. The final judgment is otherwise affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

BERGER, WALLIS and EISNAUGLE, JJ., concur.


text:
    Christopher Lee PAYNE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-36
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019 Rehearing Denied July 8, 2019
    Christopher Lee Payne, Punta Gorda, pro se.
    Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Christopher Lee Payne appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of all but one of the grounds raised in his motion. Because the record does not conclusively refute Payne's claim that counsel was ineffective for failing to investigate and call two exculpatory witnesses, we reverse the summary denial of Ground O. See Castro v. State, 240 So. 3d 877, 878 (Fla. 5th DCA 2018) (reversing summary denial of defendant's rule 3.850 motion because trial court's inquiry into whether defendant was satisfied with counsel and whether counsel did everything defendant "told him to do" was not specific enough to conclusively refute defendant's claim counsel was ineffective for failing to call witness (citing Evans v. State, 210 So. 3d 704, 705 n.1 (Fla. 5th DCA 2017) )); Fletcher v. State, 177 So. 3d 1010, 1014 (Fla. 5th DCA 2015) (reversing summary denial of defendant's rule 3.850 motion because trial court's inquiry into whether defendant was satisfied with counsel and whether counsel did everything defendant wanted was not specific enough to conclude defendant should have taken opportunity to advise trial court that defense counsel should have called two witnesses). We would typically remand for the trial court to attach records conclusively refuting the claim or for an evidentiary hearing. Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000) (citing Maharaj v. State, 684 So. 2d 726 (Fla. 1996) ). Instead, because Payne failed to allege his witnesses were available and willing to testify at trial, see Castro, 240 So. 3d at 878 (citing Spellers v. State, 993 So. 2d 1117, 1118 (Fla. 5th DCA 2008) ), we remand with instructions that the trial court strike Ground O and provide Payne with sixty days to amend. See Fla. R. Crim. P. 3.850(f)(3) ; see also Leonardi v. State, 199 So. 3d 1075, 1076 (Fla. 5th DCA 2016) ("A defendant who has filed a legally insufficient rule 3.850 motion must be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected." (citing Luckey v. State, 979 So. 2d 353, 355 (Fla. 5th DCA 2008) )).

AFFIRMED in part, REVERSED in part, and REMANDED.

BERGER, LAMBERT and EISNAUGLE, JJ., concur.