text:
    Alec ROSS, Appellant, v. Kenneth DAMAS, Esq., as attorney-ad-litem, guardian-ad-litem, and administrator-ad-litem for Zion Tarazi, Appellee.
    No. 3D09-2448.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.

      Alec Ross, in proper person.
    Appellee precluded from oral argument.
    Before RAMIREZ, C.J., and SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Alec Ross appeals the trial court’s July 15, 2009 non-final order granting Kenneth Damas’ motions to vacate a February 13, 2009 final judgment foreclosing a judgment lien, to set aside a May 28, 2009 foreclosure sale, and to vacate a clerk’s default against Wells Fargo Bank, N.A. We reverse because the trial court had no basis on which to grant the motions.

Before the subject action of this appeal was filed in the trial court, Ross obtained a summary final judgment of foreclosure against Zion Tarazi on July 10, 2007. That action involved a second mortgage Ross held on commercial property located in Broward County. Paragraph 10 of that final judgment also awarded Ross money damages on the unpaid mortgage note and directed the Clerk of the Broward County Circuit Court to issue a writ of execution against Tarazi in the amount of $212,526.82. On August 20, 2007, Ross recorded a certified copy of this final judgment in the public records of Miami-Dade County.

To induce Ross to refrain from collecting on this judgment, Tarazi’s wife quit-claimed a condominium unit she owned in Miami-Dade County (the subject real property) to Tarazi on December 20, 2007. Instead of writing up a mortgage and paying documentary stamps and fees, Ross and Tarazi agreed to secure the collateral this way because the recorded certified final judgment would be an enforceable lien on the property in Miami-Dade County. On or about September 26, 2008, Wells Fargo, became the owner of this subject property at a foreclosure sale resulting from a mortgage foreclosure action it had filed against Tarazi about three months after his wife’s quit-claim deed to him was recorded. Ross had not been named a party or made a defendant in those proceedings.

After discovering this change in ownership, Ross filed in the Circuit Court in Miami-Dade County his lien foreclosure complaint against Wells Fargo to foreclose his judgment lien on the real property. Although Tarazi and Venture at Ventura East Condominium Association, Inc. (the condominium association) were originally named as defendants, they were all dropped as parties before the February 13, 2009, default final judgment was entered against Wells Fargo, as is noted in the second paragraph of the February 13, 2009 Final Judgment.

Ross’ complaint was served on Wells Fargo’s registered agent in Tallahassee, Florida on January 8, 2009, by the Leon County Sheriff. Wells Fargo never responded to the complaint. Accordingly, the Clerk of Circuit Court in and for Miami-Dade County defaulted Wells Fargo on February 11, 2009.

Ross mailed Wells-Fargo at the office of its registered agent, a copy of his motion for default final judgment against Wells Fargo and the Notice of Hearing. Wells Fargo did not respond. On February 13, 2009, the trial court entered Final Judgment against Wells Fargo and in favor of Ross. However, on April 3, 2009, the trial court sua sponte appointed Kenneth Da-mas, Esq., as attorney ad-litem, guardian ad-litem and administrator for Tarazi, his unknown spouse, hems, etc. Tarazi had previously been dropped as a party defendant.

On April 14, 2009, Ross filed a motion to vacate the order appointing the attorney ad litem, etc. The trial court summarily denied the motion the next day. Damas filed a Motion to Vacate Plea and Re-set for Trial, in which he sought to vacate the February 13, 2009 final judgment against Wells Fargo. On May 28, 2009, the foreclosure sale took place as scheduled. The Certificate of Sale was mailed by the Clerk to Wells Fargo on that date, and on June 9, 2009, the Clerk issued the Title Certificate and mailed that to Wells Fargo. On June 11, Damas filed his emergency motion to vacate the judicial sale. This was heard on July 15. The trial court thereafter granted the motion to vacate the judgment and vacate the foreclosure sale. The trial court also vacated the clerk’s default against Wells Fargo. Ross then appealed.

The trial court’s appointment of the attorney ad-litem was post-judgment, after the trial court had lost jurisdiction over the matter. In addition, Tarazi had already been dropped as a party-defendant, thus he had no interest in the real property. Wells Fargo was the only party which had standing to move to vacate the judgment and sale, but it did not file anything. Damas lacked standing to make arguments on behalf of a non-party who had no interest in the real property. Tarazi would be adversely affected as the unsatisfied $200,000 judgment debt to Ross would remain unpaid. No written defenses of any kind have ever been filed by anyone.

In addition, it is clear that the trial court lacked jurisdiction to appoint an attorney ad-litem and guardian ad-litem post judgment for a non-party. Thus, all orders entered at the request of this attorney must be reversed. In a foreclosure case, after entry of a final judgment and expiration of time to file a motion for rehearing or for a new trial, the trial court loses jurisdiction of the case. Patin v. Popino, 459 So.2d 435 (Fla. 3d DCA 1984). The court loses jurisdiction, unless jurisdiction was reserved to address that matter or the issue is allowed to be considered post-judgment by statute or under a provision of the Florida Rules of Civil Procedure. Bank One v. Batronie, 884 So.2d 346 (Fla. 2d DCA 2004). Here, the trial court appointed Damas two months after the final judgment was entered.

Accordingly, we reverse the trial court’s July 15, 2009 non-final order granting motions to vacate the February 13, 2009 final judgment foreclosing a judgment lien, to set aside the May 28, 2009 foreclosure sale, and to vacate the clerk’s default against Wells Fargo. We remand for the trial court to reinstate the clerk’s default, the final judgment against Wells Fargo, the May 29, 2009 judicial sale, and the certifí-cate of title.

Reversed and remanded.


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    DEAUVILLE HOTEL MANAGEMENT, LLC, d/b/a Deauville Beach Resort, Appellant, v. ATLANTIC BROADBAND (MIAMI), LLC, etc., Appellee.
    No. 3D09-1237.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Billbrough & Marks, and Geoffrey B. Marks, Coral Gables, for appellant.
    Rosen, Switkes & Entin, and Robert Switkes, Miami Beach and Monique L. En-tin, for appellee.

      Before WELLS, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

Deauville Hotel Management, defendant below, appeals an adverse final judgment for damages (and an order denying a later motion by Deauville to vacate that judgment) entered after the trial court struck Deauville’s pleadings for extensive discovery misconduct and violations of court orders. The final judgment included two elements: $200,000 plus prejudgment interest for a “one-time flat fee payment” allegedly made by Atlantic Broadband to Deauville, and $2,269,717 in lost profits allegedly caused by Deauville’s breach of a cable services agreement.

Deauville does not assert error in the trial court’s ruling striking Deauville’s pleadings. Deauville argues that it was entitled to a trial by jury on damages because Atlantic Broadband’s damages claims were unliquidated. For its part, Atlantic Broadband eommendably has confessed error with respect to the lost profits portion of the final judgment.

We conclude that Deauville is also entitled to a jury trial regarding the allegedly-liquidated contractual damages regarding the “flat fee” payment. In Atlantic Broadband’s second amended complaint, the contract count does not set forth a liquidated amount. Nor does the redacted, confidential fee addendum attached to the original complaint establish a specific dollar amount. Only in a later conversion count was there a reference to a specific sum of $200,000.00. Because the conversion count refers to a sum of money allegedly paid to Deauville under one of the confidential addenda and not to a specific, identifiable account or escrow, this fee should also be considered part of the unliquidated contract claim. Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662 (Fla. 3d DCA 2007). It is also unclear from this record whether (and if so, how) the front-end amount paid by Atlantic Broadband to Deauville might affect Atlantic Broadband’s computation of profit under the contract, if that front-end amount is separately claimed and recovered. Marbella Park Homeowners Association, Inc. v. My Lawn Service, Inc., 12 So.3d 807 (Fla. 3d DCA 2009).

For these reasons, the final judgment is reversed and remanded for a trial on all of the damages claims. Deauville asserts that it will be entitled to damage discovery before the trial on damages, but that question is not presently before us. On remand, the trial court will again have jurisdiction and discretion to allow such discovery and the presentation of evidence by Deauville, or to preclude Deauville from taking additional discovery or offering defense witnesses regarding damages.

Deauville’s remarkable abuses of discovery and pretrial procedure were thoroughly evaluated by the trial court, and that court did not preclude sanctions beyond the striking of defensive pleadings. While we reaffirm Deauville’s due process rights to notice, to attend the trial on damages, to cross-examine Atlantic Broadband’s witnesses, and to argue the applicable law, Deauville’s rights to engage in pretrial discovery and to offer its own proof have not yet been passed upon by the trial court. Under any scenario, however, Atlantic Broadband will have to meet its own burden to establish the operative contract provisions, the proper method of calculating damages under those provisions, and the amount of such damages.

Reversed and remanded for further proceedings on damages.

      . Atlantic Broadband alleged that the amount of the one-time, front-end payment was confidential.

      . The refusal to return an amount paid pursuant to contract (but not escrowed or maintained as a separate, identifiable deposit) is a breach of contract, not a conversion. Spanish Broadcasting System of Fla., Inc. v. Alfonso, 689 So.2d 1092, 1094-95 (Fla. 3d DCA 1997); Bel-Bel Intern. Corp. v. Community Bank of Homestead, 162 F.3d 1101, 1108 (11th Cir.1998). In addition, the second amended complaint alleges that a non-party, Homer Meruelo, also converted some or all of the $200,000 to "his own use.”


author: BENTON, J. KAHN, J.,

text:
    Barbara W. MISTRETTA, Wife, Appellant, v. Robert G. MISTRETTA, Husband, Appellee.
    No. 1D09-2049.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    Rehearing Denied April 1, 2010.

      James L. Chase, Pensacola, for Appellant.
    John L. Myrick of John L. Myrick, P.A., Pensacola, for Appellee.
   BENTON, J.

We are asked to decide whether the trial court erred in deciding to revisit the distribution of property it had ordered in a dissolution case, on the stated ground that a “recessionary economy was totally unforeseen.” Barbara W. Mistretta appeals the order granting Robert G. Mistretta’s verified amended motion for rehearing “(Count One) for a new trial,” and ordering “a rehearing upon all issues.” We reverse and remand.

In the final judgment dissolving the Mis-trettas’ marriage, entered on August 25, 2008, the trial court used October 31, 2007, as the “date for determining value of assets,” § 61.075(7), Fla. Stat. (2008), for purposes of equitable distribution. The trial court distributed one of the parties’ principal assets, Jerry’s Cajun Cafe and Market, Inc. (the business), to Mr. Mis-tretta (on condition that he indemnify and hold Ms. Mistretta harmless for the business’s liabilities); determined the business’s value to be $845,000 on October 31, 2007; and ordered Mr. Mistretta to make a cash “equalization payment” to Ms. Mis-tretta in an amount based largely on the $845,000 value of the business on October 31, 2007.

Mr. Mistretta sought reconsideration, serving a timely motion for rehearing on September 3, 2008. See Fla. R. Civ. P. 1.530(b) (“motion for new trial or for rehearing shall be served not later than 10 days after ... the date of filing of the judgment in a non-jury action”). The motion for rehearing conceded that “Former Wife [had] clearly established the value of the corporate entity [the business] by competent, substantial evidence.” The motion did not request an opportunity to adduce additional evidence or seek a different valuation date. Instead, in eleven of fourteen numbered paragraphs, the motion argued that half of the business was Mr. Mistret-ta’s non-marital property and, in effect, that the lack of evidence identifying what appreciation during the marriage was attributable to “the expenditure of marital funds or labor, including the parties’ management, oversight, or contribution to principal,” Stevens v. Stevens, 651 So.2d 1306, 1307 (Fla. 1st DCA 1995) (citing Young v. Young, 606 So.2d 1267, 1270 (Fla. 1st DCA 1992)), should not work to his disadvantage.

Before the motion for rehearing had been acted on, Mr. Mistretta filed an amended motion for rehearing on March 2, 2009, alleging that an economic recession began in December of 2007; that this caused the business to sustain a net loss of $57,674.87 in 2008; and that this “newly discovered evidence” warranted a new trial and revaluation of the business. Ms. Mis-tretta’s argument to the contrary notwithstanding, we assume for purposes of decision that there was no procedural barrier to the trial court’s considering the amended motion.

On April 6, 2009, the trial court entered the order now before us for review, granting Mr. Mistretta’s amended motion for rehearing, explaining:

At the time of the final hearing, March 18, 19 and 20, 2008, the economy was in a down turn and the effects of the recession, which was essentially unknown to the Court, counsel and various experts who provided testimony to the Court. The Court is satisfied that as a Court of equity, it should permit a rehearing as requested by the Former Husband inasmuch as to do otherwise might prove inequitable. The present recessionary economy was totally unforeseen; no one could reasonably anticipate the severity of same.

The order does not explain why the “various experts who provided testimony” were more likely to predict future economic conditions accurately on rehearing.

“As a general rule, the standard of review applicable to a ruling on a motion seeking a new trial is abuse of discretion. ... However, when a motion for new trial addresses only issues of law, the standard of review is essentially de novo.” State Farm Mut. Auto. Ins. Co. v. Williams, 943 So.2d 997, 999-1000 (Fla. 1st DCA 2006) (citations omitted). Rehearing or new trial based on newly discovered evidence “is warranted where (1) it appears that the evidence is such that [it] will probably change the result if a new trial is granted, (2) the evidence has been discovered since the trial, (3) the evidence could not have been discovered before the trial by the exercise of due diligence, (4) the evidence is material to the issue, and (5) the evidence is [n]ot merely cumulative or impeaching.” Bray v. Elec. Door-Lift, Inc., 558 So.2d 43, 47 (Fla. 1st DCA 1989) (citation omitted).

Importantly, the allegedly “newly discovered evidence” cannot simply show some change in circumstances since the trial. See Dulle v. Dulle, 325 So.2d 441, 442 (Fla. 3d DCA 1976) (affirming denial of former husband’s postjudgment motion for rehearing on basis of allegedly newly discovered evidence, viz., that former wife took the children out of state and refused former husband visitation rights, stating: “It affirmatively appears that the relief sought by the husband is by way of a petition for modification based on a change of circumstances rather than rehearing. It is clear that the matters of which the husband complains happened after the final judgment and were not existent prior to or at trial.”). In the present case, the allegedly “newly discovered evidence” — evidence of an economic recession that began in December of 2007, months or weeks after the valuation date, and operating results for the year 2008 — tends to prove a change in circumstances occurring after the October 31, 2007, date of valuation, and relates, at least in part, to events that transpired after the trial.

Projections of future revenues and cash flows are, of course, pertinent, in assessing the value of a business. But projections of future revenues, expenses and income necessarily depend, not only on known or knowable facts already in existence, but also on assumptions about the future that will not always, if ever, be entirely accurate. See generally Jennifer G. Feingold, Robert M. Glucksman & Steven B. Epstein, Business Valuations in Light of Thornhill, 38 Colo. Law. 77, 79 (Aug. 2009) (noting, with respect to business valuation under the income approach, “forecasting future cash flows may be speculative”); John O. McDougall & George W. DuRant, Business valuation in family court, 13 S.C. Law. 15, 16 (Sept./Oct. 2001) (“Reliability of the income approach depends upon the reasonableness and credibility of assumptions about future opei’ations and financial results.”); John E. Barrett, Jr., Valuing the Small Business in Litigation, 48 R.I. B.J. 9, 13 (Oct. 1999) (“The equity cost of capital estimation is far from a precise science. We should avoid a tendency toward spurious accuracy.”). Economic recessions, like other vagaries in the business cycle, are contingencies appraisers must take into account in valuing a business.

The witnesses who appraised the business by assigning it a value as of October 31, 2007, made assumptions about the business’s prospects then, doubtless informed by the actual experience between October 31, 2007, and mid-March of 2008, when they testified on the question. On August 25, 2008, when final judgment was entered, economic conditions had presumably changed again, and it is certainly true that the parties’ experts might not have predicted the precise economic conditions on April 6, 2009, the day the order under review was entered, or, for that matter, the reported improvements in economic conditions since. But a cloudy crystal ball is no basis for a new trial. That the future in fact unfolds differently than business appraisers assume cannot be a basis for a new trial on the value of a business if trials on such issues are ever to yield reliably final adjudications.

Reversed and remanded.

CLARK, J., concurs; KAHN, J., dissents with opinion.

KAHN, J.,

dissenting.

I would affirm the order on review because it meets the requirements of Bray v. Electronic Door-Lift, Inc., 558 So.2d 43 (Fla. 1st DCA 1989), which are accurately set out in the majority opinion. The majority reverses based upon its conclusion that an economic recession is a matter that should be taken into account by an expert witness valuing the business. None could doubt this as a general proposition because, as the majority notes, the value of a business depends largely on future prospects for the success of that business. This case is different, and the trial court properly made such a finding. Specifically, in the order on review, the trial judge noted the economic downturn, and

... the effects of the recession, which (were) essentially unknown to the Court, counsel and various experts who provided testimony to the Court.... The present recessionary economy was totally unforeseen; no one could reasonably anticipate the severity of same.

In announcing his ruling orally, the trial court pointed to a “global epidemic,” “an economic tsunami that ... comes along so seldom ... there are some ... comparing it to the Great Depression.” Moreover, according to the proof accepted at the motion hearing, a severe economic recession may be called only retrospectively, despite the fact it has been ongoing for some time. This finding comports with the requirements of Bray concerning the grant of a new trial because under Bray, the movant must demonstrate, among other things, the evidence has been discovered since the trial, and “the evidence could not have been discovered before the trial by the exercise of due diligence.Id. at 47. Relying upon publications of the National Bureau of Economic Research, ap-pellee demonstrated to the trial court’s satisfaction that the recession was first characterized only in December 2008, but the economy had actually been in recession since December 2007. Such a calculus was reached retroactively and on the shoulders of historical data.

Accordingly, I see two factors that would distinguish this case from the general rule the majority applies — a rule that I do not disagree with. First, the downturn here could have been determined only after the fact — in this case, one year, or four business quarters, after it began; and second, the recession, as is well known, is of historic proportions. I find no error in the trial court’s decision to open up the judgment, particularly considering that the major asset around which this case revolves is a small family-operated business. Stated otherwise, the well-experienced trial court here was completely persuaded of the inequity of the original final judgment of dissolution. I would respect that conclusion and would not disturb the order on review.

      . At proceedings held March 23, 2009, Ms. Mistretta objected to the trial court's hearing the motion on grounds Mr. Mistretta had not sought leave of court to amend his original motion for rehearing. Mr. Mistretta then made an ore tenus motion to amend the motion for rehearing. The trial court granted the ore terms motion, reasoning, "I think this is an exceptional circumstance that could not have been known, and I think that it’s contained within the rule for a motion for rehearing.” A timely motion for rehearing "may be amended to state new grounds in the discretion of the court at any time before the motion is determined.” Fla. R. Civ. P. 1.530(b).

      . A timely motion for rehearing vests the trial court with jurisdiction to "open the judgment ..., take additional testimony, and enter a new judgment.” Fla. R. Civ. P. 1.530(a) ("On a motion for a rehearing of matters heard without a jury, ... the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.”). But Ms. Mistretta contends the trial court effectively allowed an untimely motion for new trial and rejects the contention that “COUNT ONE (NEW TRIAL)” of her former husband's verified amended motion for rehearing should relate back to his original, timely motion for rehearing.


author: PER CURIAM.

text:
    Pablo JAPO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3192.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Rehearing Denied April 16, 2010.
    Pablo Japo, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


author: MAY, J.

text:
    Barbara A. BATES, Appellant, v. ST. LUCIE COUNTY SHERIFF’S OFFICE, Appellee.
    No. 4D08-3870.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Rehearing Denied April 23, 2010.

      Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellant.
    Bruce W. Jolly and Garrett Elsinger of Purdy, Jolly, Giuffreda & Barranco, P.A., Fort Lauderdale, for appellee.
   MAY, J.

Immunity from civil liability created by an absolute privilege and its application in a defamation action against the Sheriff of St. Lucie County give rise to this appeal. The plaintiff appeals an order setting aside a jury verdict in her favor and entering a directed verdict for the Sheriff and the consequent final judgment. The plaintiff argues that the trial court erred in setting aside the jury verdict based on absolute immunity. We affirm.

The plaintiff, a former employee of the St. Lucie County Sheriffs Office, filed a complaint against the Sheriff and other employees of the Sheriffs Office. The Fourth Amended Complaint alleged two counts against the Sheriff: defamation and tortious interference with a business relationship. The complaint alleged that after the plaintiff resigned from the Sheriffs Office to attend the police academy, the Sheriff furnished “inaccurate, misleading and false reports” concerning her. Specifically, the plaintiff alleged that the agency submitted a written CJSTC Form 61 to the Florida Department of Law Enforcement that inaccurately reported that the plaintiffs separation from the Sheriffs Office was a “voluntary separation while being investigated for alleged misconduct.” The plaintiff alleged that she had advised the Sheriff about the inaccurate report, but he refused to correct it, resulting in her failure to obtain a position with the Riviera Beach Police Department.

The Sheriff raised the affirmative defenses of immunity and privilege in its Answer. Prior to trial, the Sheriff filed a Motion for Judgment on the Pleadings specifically addressed to the absolute immunity defense. The trial court deferred ruling on the motion, and the case proceeded to trial. At trial, the Sheriff raised absolute immunity in the motions for directed verdict. Once again, the trial court deferred ruling on the immunity issue and allowed the case to go to the jury.

The verdict form, which was agreed on by the parties, asked the following relevant questions:

1. Did the Sheriff of St. Lucie County, Florida issue CJSTC Form 61 concerning Barbara Bates that tended to injure Barbara Bates in her business, reputation or occupation?
2. Was CJSTC Form 61 issued by the Sheriff of St. Lucie County, Florida substantially true?

The jury answered yes to the first question and no to the second question. There was no question directed to the immunity issue. The jury retened a verdict for $600,000. The Sheriff filed a Renewed Motion for Directed Verdict and Motion to Set Aside Verdict.

The trial court granted the motion. In doing so, the court indicated that the common law provided the Sheriff with absolute immunity for statements made in the course of his duties. The qualification of absolute immunity under section 943.139(4), Florida Statutes (2008) applied only to the administrator of the employing agency who prepares the CJSTC Form 61; not to the Sheriff. The court then entered a final judgment for the Sheriff, from which the plaintiff now appeals.

On appeal, the plaintiff argues error only in the trial court’s ruling on the motion to set aside the verdict and entry of the directed verdict and final judgment. She argues that the provisions of section 943.139(4) apply to the Sheriff and qualify the common law absolute immunity otherwise afforded him.

Section 943.139(4), Florida Statutes (2008) states:

(4) An administrator of an employing agency who discloses information pursuant to this section is immune from civil liability in accordance with the provisions of s. 768.095.

Section 768.095, Florida Statutes (2008), provides:

An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.

(emphasis added). Therefore, the plaintiff argues the Sheriffs absolute immunity is limited to qualified immunity based upon whether there was a disclosure of knowingly false information. Unfortunately for the plaintiff, the trial court got it right.

“Our standard of review of a trial court’s ruling on a motion for directed verdict is de novo." Cassell v. India, 964 So.2d 190, 193 (Fla. 4th DCA 2007).

“In Florida, ‘[pJublic officials who make statements within the scope of their duties are absolutely immune from suit for defamation.’ ” Id. at 194 (quoting Stephens v. Geoghegan, 702 So.2d 517, 522 (Fla. 2d DCA 1997)); see also McNayr v. Kelly, 184 So.2d 428 (Fla.1966).

“The public interest requires that statements made by officials of all branches of government in connection with their official duties be absolute^ privileged.” The court recognized that democracy needs “free and open explanations” of governmental actions and the right to this absolute privilege is a function of that necessity. This absolute privilege extends to a sheriff for comments made in the course of the sheriffs duties.

Crowder v. Barbati, 987 So.2d 166, 167 (Fla. 4th DCA 2008) (quoting Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.1970)).

As this court explained in Cassell, the deciding factor in determining whether the privilege giving rise to absolute immunity applies is whether the communication is made within the course and scope of the official’s employment. Cassell, 964 So.2d at 194. Here, it is undisputed that the filing of the CJSTC Form 61 took place within the course and scope of the Sheriffs Office. The real issue is whether the statute requiring the filing of the form somehow qualified the Sheriffs absolute immunity. We think not.

Section 943.139(4) applies to an administrator of an employing agency who discloses information. Under section 768.095, if that administrator discloses knowingly false information, it loses its immunity from civil liability. By its very terms, section 943.139(4) applies to the administrator who files the form. As the trial court found, the Sheriff did not file the form. Even if subsection (4) applied to the Sheriff, the plaintiff did not request the jury to determine whether the administrator knowingly disclosed false information. The verdict form merely asked the jury whether the information on the form was substantially true. Further, to abrogate or limit immunity, a statute must be clear. Bryan v. Landis, 106 Fla. 19, 142 So. 650, 651 (1932). Section 943.139(4) fails to clearly abrogate, limit, or qualify the absolute immunity provided the Sheriff under common law. For these reasons, we affirm.

Affirmed.

GROSS, C.J., and CIKLIN, J., concur.

      . The only issue on appeal concerns the defamation claim as the jury found in favor of the Sheriff on the tortious interference claim.

      . Bates apparently requested a jury instruction on qualified immunity, to which the Sheriff objected. The parties then agreed to the Sheriff's proposed instructions and verdict form.


text:
    Brian Thomas HOSANG, former husband, Appellant, v. Stephanie Jean HOSANG, former wife, Appellee.
    No. 1D10-0240.
    District Court of Appeal of Florida, First District.
    March 2, 2010.

      Neal L. Betancourt of Rotchford & Be-tancourt, P.A., Jacksonville, for Appellant.
    Stephanie Jean Hosang, pro se, Appel-lee.
   PER CURIAM.

DISMISSED. See Ward v. Bragg, 957 So.2d 670 (Fla. 1st DCA 2007).

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


text:
    CHICAGO TITLE INSURANCE COMPANY, Appellant, v. NORTHLAND INSURANCE COMPANY, Appellee.
    No. 4D08-4450.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Rehearing Denied April 23, 2010.

      Steven L. Brannock and Sarah C. Pel-lenbai’g of Holland & Knight, LLP, Tampa, for appellant.
    Louis Schulman and R. Steven Rawls of Butler, Pappas, Weihmuller, Katz & Craig, LLP, Tampa, for appellee.
   MAY, J.

A dispute between a title insurer (Chicago Title) and its errors and omissions carrier (Northland) over the interpretation of a policy and its exclusions create the issue in this appeal. Chicago Title appeals an adverse summary judgment and argues that Northland waived its right to raise the policy exclusions as a defense to a garnishment action when it wrongly refused to defend its insured First Southern Title Company in an underlying action. We disagree and affirm.

The underlying litigation arose from an attorney’s misappropriation of monies in a real estate transaction for which First Southern was the title agent. First Southern’s employee released a check to the attorney to hold in escrow for satisfaction of a mortgage. The attorney misappropriated the funds, leaving insufficient money to satisfy the mortgage. Chicago Title made payment under its policy to clear the title.

Chicago Title then filed suit against First Southern, its principal, and the attorney, seeking to recover the funds. The complaint alleged a significant shortage in escrow funds as a result of “negligence, misapplication, conversion and/or theft of funds.” The complaint alleged counts for negligence and negligent supervision against First Southern and its principal, and for fraud and deceit against the attorney and First Southern’s principal.

First Southern and its principal tendered their defense to Northland, but Northland denied the tender and coverage based on the “Handling of Funds” exclusion and the “Additional Exclusion Endorsement” of its policy.

Chicago Title, First Southern, and its principal entered into a settlement agreement, which the court approved in a final judgment. The court entered the consent judgment in favor of Chicago Title and against First Southern and its principal on the negligence, breach of fiduciary duty, and negligent supervision counts. The court also entered judgment against First Southern on the breach of contract count, and against First Southern’s principal on the breach of guarantee count. All other counts were dismissed with prejudice.

Chicago Title was unable to collect on the judgment from First Southern or its principal, causing it to file a Motion for Issuance of Writ of Garnishment against Northland. The trial court issued the writ; Northland answered by denying liability. The trial court ultimately entered a final judgment in favor of Northland, from which Chicago Title now appeals.

We have de novo review of a summary judgment. Howard v. Boulanger Drywall Corp., 23 So.3d 817, 819 (Fla. 4th DCA 2009). The parties agree there are no genuine issues of material fact. We are left with the legal issue of whether North-land was entitled to judgment as a matter of law. Selepro, Inc. v. Church, 17 So.3d 1267, 1269 (Fla. 4th DCA 2009).

Chicago Title first argues that Northland waived its right to deny coverage when it wrongfully refused to defend First Southern and its principal in the underlying litigation and is now bound by the terms of the final judgnent. The trial court disagreed with this argument and so do we. In a subsequent action by the insured against its insurer, Florida courts look to the complaint and the insurance policy to determine whether there is coverage. See Keen v. Fla. Sheriffs’ Self-Ins. Fund, 962 So.2d 1021, 1024 (Fla. 4th DCA 2007). This is true notwithstanding an insurer’s refusal to defend leading to the insured entering into a consent judgment. See, e.g., Kopelowitz v. Home Ins. Co., 977 F.Supp. 1179, 1187 n. 3 (S.D.Fla.1997) (citing Columbia Cas. Co. v. Hare, 116 Fla. 29, 156 So. 370 (1934) and Spencer v. Assurance Co., 39 F.3d 1146, 1148 (11th Cir.1994)).

Chicago Title next argues that Northland was contractually obligated to provide coverage to First Southern because the complaint alleged counts for negligence and negligent supervision, regardless of the ultimate cause of loss — the misappropriation of funds. We agree with the trial court that semantics cannot avoid the obvious. Where the application of one or more policy exclusions applies to the face of the complaint, no duty to defend exists, even if the complaint alleges facts that would otherwise give rise to a covered claim. See Keen, 962 So.2d at 1024. Here, the damages resulted from the misappropriation of funds, which is clearly excluded from coverage under the policy.

The complaint alleged that the shortage in escrow funds was “the result of negligence, misapplication, conversion and/or theft of funds.” The Handling of Funds exclusion excluded “damages arising out of the comingling, conversion, misappropriation or defalcation of funds or other property.” And, the Additional Exclusion Endorsement excluded claims connected in any way to the dishonoring of any financial instrument.

As the trial court found, “both the Handling of Funds exclusion and the Additional Exclusion Endorsement apply, because they are addressed to the undisputed facts that are incorporated into the Consent Judgment.” Any liability based on negligence stems from and is dependent on the misappropriation of funds by the attorney. But for the attorney’s actions, Chicago Title would have had no obligation to pay damages. It is also undisputed that the financial instrument issued by First Southern was dishonored and prevented it from satisfying the mortgage. Chicago Title’s claim clearly “arises out of’ actions for which the exclusion precludes coverage.

A similar result was reached in Northland Ins. Co. v. Stewart Title Guaranty Co., 327 F.3d 448 (6th Cir.2003). There, the insurer issued a policy to a title insurance agency with the same exclusion. Id. at 450. After checks written by the insured were returned for insufficient funds, an escrow account audit revealed a shortage of approximately $300,000. Id. at 451. The insured’s underwriter filed suit against the insured, alleging embezzlement, defalcation, conversion, and commingling of funds. Id. The insurer agreed to provide a defense, subject to a full reservation of rights. Id. It then filed a declaratory action to determine its obligations under the policy. Id. The Sixth Circuit agreed with the district court’s finding “that any damages sustained as a result of the ... conversion, commingling, defalcation, [or] embezzlement, ... fell within the exclusions of the policy regardless of whether the conduct was negligent or intentional.” Id. at 456.

For the same reason, we affirm.

Affirmed.

GROSS, C.J., and CIKLIN, J„ concur.

      . The policy provided that “[Northland] will pay those sums that [First Southern] becomes legally obligated to pay as damages because of a negligent act, error or omission in the rendering or failure to render professional services....” Further, "[Northland has] the right and duty to defend any ‘suit’ seeking damages to which this insurance applies” however, Northland has "no duty to defend [First Southern] against any suit seeking damages for which the insurance does not apply.”
      The Handling of Funds exclusion excludes coverage for "[a]ny damages arising out of the comingling, conversion, misappropriation or defalcation of funds or other property.” The Additional Exclusion Endorsement amended the policy to exclude "[a]ny claim arising out of, in connection with, or in consequence of, directly or indirectly, any person or entity's, financial inability to pay, insolvency, receivership, bankruptcy, liquidation or the dishonoring of any financial instrument.”

      . The fact that the attorney, and not First Southern, committed the misappropriation is of no significance. Unlike the policy's “Criminal Acts” exclusion, which excludes "damages arising out of any dishonest, fraudulent, criminal or malicious act or omission, by or on behalf of or at the direction of any insured,” the Handling of Funds exclusion does not rely on the identity of the actor.


text:
    Joan B. GINNELL, Appellant, v. Brian Robert PACETTI, II, a/k/a Todd Pacetti, Appellee.
    No. 4D09-1942.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Rehearing Denied April 23, 2010.

      Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellant.
    Chad R. Laing of Laing Law Group, P.A., Boca Raton, for appellee.
   PER CURIAM.

Former wife Joan Ginnell timely appeals an order holding her in contempt of court and modifying a time-sharing plan. We affirm, and write to address several issues.

After much acrimonious litigation, on January 23, 2008, the circuit court entered an order on time-sharing concerning the parties’ minor child. The judge found that both parents’ conduct was harmful to the child and that neither parent was acting in the child’s best interest. In the order, the judge attempted to craft a supervised visitation program that would redevelop the father-son relationship. The order warned both parents to curtail their negative behaviors and cautioned the former wife to avoid “alienation and non-productive comments about the child’s father.”

Brian R. Pacetti, the former husband, filed a motion to hold Ginnell in contempt for violating the January 23 order. The court held a hearing that spanned four days in September, 2008 and February, 2009. Witnesses testified who described their contact with the child. After closing arguments, the judge noted that he had heard much information and asked the parties to prepare proposed orders, specifically instructing Pacetti to do so. The judge then discussed different remedies he might order. For example, the judge said he could order “meaningful makeup visitation, so the child has significant length of time with the father without the mother there, so that they can develop a relationship without Mom interfering, so that this reunification can take place; that may be an option.” The judge asked Ginnell to prepare a proposed order should he grant Pacetti’s motion for contempt, to suggest a remedy different than ones sought by Pa-cetti. Although she provided the court with a memorandum opposing Pacetti’s request for relief and a timesharing proposal, Ginnell did not submit a proposed order for the court’s review.

On May 18, 2009, the trial judge issued an order finding Ginnell in contempt of the January 23 order. The court concluded that the goal of reunification with the father had been thwarted by “the willful actions” of Ginnell, “individually and through her counsel.” The court expressed concern that any “stepped up visitation process” would be “thwarted” by Ginnell. The court ordered “substantial, unsupervised makeup visitation” and established a regular schedule. The judge required Ginnell, as the parent who denied time-sharing without cause, to pay Pacetti’s attorney’s fees.

We reject Ginnell’s claim that the trial judge held her in contempt for violating some order other than the January 23 order. Although the court held numerous hearings, the operative contempt finding concerned only the January 23 order.

Ginnell essentially claims that the trial court’s use of Pacetti’s final judgment violated Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla.2004), a case where “the trial judge erred ... by entering as the final judgment the proposed final judgment prepared by the wife’s attorney without giving the husband an opportunity to comment or object.” This contention is without merit for four reasons. First, unlike the judge in Perlón), the court here provided the parties with an opportunity to submit proposed orders. He did not discourage Gin-nell from doing so. Second, unlike the judge in Perlow, the judge in this case modified Pacetti’s proposed order. For example, he deleted all of the paragraphs that would have awarded Pacetti primary residential responsibility. Also, the judge removed paragraphs that ordered Ginnell’s counsel to personally pay Pacetti’s attorney’s fees because of her misconduct. Third, the judge here participated actively in the hearing, several times asking questions of the witnesses. Fourth, the judge in this case made preliminary oral findings at the conclusion of the contempt hearing, ostensibly to guide the parties in drafting their proposed orders. See also Bryan v. Bryan, 930 So.2d 693 (Fla. 3d DCA 2006) (rejecting claim that trial court’s final judgment violated Perlow).

Finally, Ginnell asserts that the trial court abused its discretion in its revisions to the visitation schedule. Subsection 61.13(4)(c)6., Florida Statutes (2008), allows a court to, “upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interests of the child.” The parties presented evidence and argument concerning the child’s best interests at the hearings on Pacetti’s motion. The judge’s statements at the hearing and the language of the order demonstrate that he considered the child’s best interests. Although the testimony was disputed, the judge’s conclusion that unsupervised visitation was warranted was not an abuse of discretion, especially in light of his belief that Ginnell would not “facilitate and encourage a close and continuing parent-child relationship” with the child’s father. Ginnell’s wrongful conduct also justified the trial court’s decision to have her pay summer transportation costs and a doctor’s fees. See § 61.13(4)(c), Fla. Stat. (2008); Robinson-Wilson v. Wilson, 932 So.2d 330 (Fla. 4th DCA 2006) (indicating that a court’s power to sanction under subsection 61.13(4)(c) “is triggered by the wrongful conduct of the custodial parent”).

Affirmed.

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.

      . Because the trial judge has not made an attorney’s fee award, the ruling is not ripe for our determination and we do not consider its propriety. See Cancellari v. Rance, 779 So.2d 373 (Fla. 2d DCA 2000); Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994) (“We have held in other cases that orders granting attorney’s fees without determining amount are not ripe for appellate review.” (Citations omitted)).


author: WARNER, J.

text:
    Pablo BAUER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2260.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Rehearing Denied April 23, 2010.
    Pablo Bauer, Milton, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the denial of appellant’s ninth motion to correct an illegal sentence. Appellant claims that his habitual felony offender sentence is illegal because a prior grand theft conviction cannot serve as a predicate conviction for HFO sentencing. He is wrong. See § 775.084(l)(a), Fla. Stat. (1999).

It continues to concern us that Florida Rule of Criminal Procedure 3.800 permits a prisoner to file a motion to correct an illegal sentence at any time, and there is no limit on the number of such motions which can be filed. See State v. McBride, 848 So.2d 287, 290 (Fla.2003) (“Florida courts have held, and we agree, that the phrase ‘at ány time’ allows defendants to file successive motions under rule 3.800.”). This has led to the proliferation of successive filings by prisoners and a substantial and costly increase in workload for both trial and appellate courts.

Rule 3.800(a) needs to be amended to require the prisoner to raise all contentions of illegality in the same motion and within two years of the sentence. The illegality of the sentence is present when the sentence is imposed. It shouldn’t take ten or fifteen years to discover it. We require rale 3.850 motions for postconviction relief to be brought within two years, and only one such motion can be brought, with certain limited exceptions. Likewise, limiting rale 3.800(a) motions would not deprive prisoners of any right. It would only reduce the cost of prisoner litigation.

Affimed.

POLEN and STEVENSON, JJ., concur.


author: POLEN, J.

text:
    Gilberto and Sandra GAMEZ, Appellants, v. FIRST UNION NATIONAL BANK OF FLORIDA f/k/a Florida National Bank, Appellee.
    No. 4D09-3130.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.

      David J. Kohs and Stacy J. Ford of Pohl & Short, P.A., Winter Park, for appellants.
    Robert D. Friedman and Debra L. Greenberg of Friedman & Greenberg, P.A., Plantation, for appellee.
   POLEN, J.

Appellants, Gilbert and Sandra Gamez, appeal the trial court’s non-final order denying their motion to quash/vacate a prior order which authorized the levy and execution sale of their real property. The Ga-mezes argue the trial coui’t erred in denying their Motion to Quash/ Vacate the Order Authorizing Levy because the Order Authorizing Levy was entered in violation of their procedural due process rights. We hold that there was no error and affirm.

On or about July 29, 1989, Angela Vol-mar inherited a 1/3 interest in Lots 10, 12, and 14 of Tropical Village Estates located in Indian River County. On June 17,1991, First Union National Bank of Florida obtained a final default judgment against Robert and Angela Volmar in the amount of $8,078.65 which was recorded in Indian River County public records the next day.

In February 1996, Angela Volmar inherited another 1/6 interest in Lots 10,12, and 14 making her the owner of a 1/2 interest in the subject lots. On November 28, 2000, a certified copy of First Union’s judgment was re-recorded in the Indian River County public records. Also on that date, the affidavit of Robert D. Friedman, counsel for First Union, was recorded in the Indian River County public records with the final judgment. The affidavit provided an address for the plaintiff/lien holder, Cypress Recovery Corporation, and listed the defendants as “Robert W. Volmar, et al.” but did not specifically list Angela Volmar as a defendant.

On February 22, 2003, Angela Volmar conveyed her 1/2 interest in Lots 10, 12 and 14 to John Swearingen via Warranty Deed. On May 21, 2003, John Swearingen conveyed Lots 10 and 12 to Gilberto and Sandra Gamez.

In January 2009, Cypress Recovery Corporation, as assignee of First Union, filed a Motion for Order Authorizing Levy of Real Property. The motion contained a certificate of service stating that a copy of the motion had been provided to Angela Vol-mar and Gilberto and Sandra Gamez. Following a hearing at which Gilberto and Sandra Gamez were present, the trial court granted the motion finding that Angela Volmar’s 2003 transfer of the property was subject to the lien of First Union’s final judgment. The order also authorized the Indian River County Sheriff to levy on the property “now owned by Gilberto Gamez and Sandra Gamez, which may be sold at execution sale.” On May 20, 2009, Cypress Recovery Corporation filed an Ex Parte Motion for Writ of Alias Execution in order to proceed with its levy of the subject property. No certificate of service was attached to the motion. Legal counsel for Gilberto and Sandra Gamez entered a Notice of Appearance on June 1, 2009. On June 8, 2009, the trial court granted the motion on an ex parte basis and issued an Alias Execution on June 9, 2009.

Gilberto and Sandra Gamez filed a Motion to Quash and/or Vacate the Order Authorizing Levy and to Stay Levy and/or Execution Sale arguing they had not been properly joined as parties to the action and that the Order Authorizing Levy was procedurally and legally deficient. Specifically, the Gamezes argued that a judgment creditor seeking to levy upon real property titled in the name of a third party/non-debtor must implead that third party and proceed under section 56.29, Florida Statutes (2005), which Cypress Recovery had failed to do. Gilberto and Sandra Gamez also proposed several affirmative defenses which they could argue once the trial court afforded them due process. Specifically, the Gamezes planned to assert that (1) the lien is no longer valid because it was not properly rerecorded every seven years, and (2) because the affidavit recorded with the lien did not name Angela Volmar as a defendant, Gilberto and Sandra Gamez had no actual knowledge of the subject final judgment. During a hearing on the motion, Cypress Recovery argued that the procedure which the Gamezes argued was required involved personal property, and thus was not required in the present case which involves the levy of real property. The trial court denied the Gamezes’ Motion to Quash/Vacate. Gilberto and Sandra Gamez now timely appeal.

The Gamezes insist that Cypress Recovery was and is required to initiate proceedings supplementary under section 56.29, Florida Statutes, and that its failure to do so violates their procedural due process rights. Generally, section 56.29 provides that a judgment creditor may file an affidavit stating that it holds an unsatisfied judgment and that the execution is valid and outstanding. § 56.29(1), Fla. Stat. (2005). Once a judgment creditor has filed such an affidavit, it is entitled to proceedings supplementary, which are a “procedural mechanism that provide a judgment creditor with means to investigate assets of the judgment debtor that might be used to satisfy a judgment.” In re Hill, 332 B.R. 835, 843 (M.D.Fla.2005).

The Gamezes point specifically to section 56.29(5) which provides: “The judge may order any property of the judgment debtor, not exempt from execution, in the hands of any person or due to the judgment debtor to be applied toward the satisfaction of the judgment debt.” As this court has noted, “Supplementary proceedings are a creature of statute to aid a judgment creditor in discovering assets of the debtor which might be appropriated to satisfy the judgment.” Conrad v. McMechen, 338 So.2d 1306, 1307 (Fla. 4th DCA 1976).

Cypress calls this court’s attention to In re Hinton, 378 B.R. 371 (M.D.Fla.2007), in which the court stated that a plain reading of section 56.29 makes it clear that the “court’s powers to help a judgment creditor obtain transferred property expressly apply only to personal property and not to real property.” Id. at 383.

Section 56.21, Florida Statutes (2005), establishes the notice requirement for the execution sale of real property and provides in relevant part:

Notice of all sales under execution shall be given by advertisement once each week for 4 successive weeks in a newspaper published in the county in which the sale is to take place.... On or before the date of the first publication or posting of the notice of sale, a copy of the notice of sale shall be furnished by certified mail to the attorney of record of the judgment debtor, or to the judgment debtor at the judgment debtor’s last known address if the judgment debtor does not have an attorney of record.... When levying upon real property, notice of such levy and execution sale shall be made to the property owner of record in the same manner as notice is made to any judgment debtor pursuant to this section. When selling real or personal property, the sale date shall not be earlier than 30 days after the date of the first advertisement.

Thus, Cypress Recovery maintains that the Gamezes’ due process rights are provided for and satisfied by the requirements of section 56.21. In addition, Florida courts have consistently held that individuals who purchase real property after a judgment lien has been recorded, as Gilberto and Sandra Gamez did in the present case, take title with notice of the lien and subject to the lienor’s right to levy execution. E.g., Eppes v. Dade Developers, Inc., 126 Fla. 353, 170 So. 875 (1936); State ex rel. Eppes v. Lehman, 109 Fla. 331, 147 So. 907 (1933); Sharpe v. Calabrese, 528 So.2d 947 (Fla. 5th DCA 1988).

Procedural due process requires notice and a real opportunity to be heard. Keys Citizens For Responsible Gov’t, Inc. v. Florida Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001).

[T]he notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pen-dency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.”

Id, (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)) (emphasis added). Mullane suggests that fulfilling a party’s due process rights is not the duty or burden of any specific entity but rather that a party whose rights may ultimately be affected by a proceeding must be given notice enough in advance so that he may obtain a hearing before he is deprived of his property.

Section 56.21 provides for sufficient notice to a third party real property owner and affords such property owners a reasonable time to make an appearance. Where the third party property owner is given notice as required by section 56.21, they have the opportunity to intervene in the action and assert their defenses. Inasmuch as the Gamezes have not yet received notice of the execution sale of their property and have not even attempted to intervene in the action, their procedural due process rights have not been violated by the proceedings below. Thus, we affirm the trial court’s order denying the motion to quash/Vacate.

Affirmed.

WARNER and STEVENSON, JJ., concur.

      . According to appellants' initial brief, Swear-ingen had obtained the other 1/2 interest in the property via an earlier Warranty Deed from the other co-owner of the property.

      . There is no transcript of this hearing. However, it was noted at a later hearing that Gilberto and Sandra Gamez were present at this hearing. The court advised the appellants to contact their title insurance company.

      .The order did not limit the levy to Angela Volmar's previous 1/2 interest in the property. However, During the June 30, 2009 hearing, counsel acknowledged that only the 1/2 interest previously held by Angela Volmar would be levied.

      . Prior to its amendment in 2000, section 55.10, Florida Statutes, provided that a judgment remained a lien on property for a period of seven years after which it must be rerecorded. This section currently provides that a judgment remains a lien on real property for ten years after which it must be rerecorded. See § 55.10, Fla. Stat. (2000).


author: MONACO, C.J.

text:
    Josephine Jennie MILLER, Appellant, v. Gladys G. PARTIN, as Trustee, etc., et al., Appellee.
    No. 5D08-4486.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2010.

      Frederic B. O’Neal, Windermere, for Appellant.
    J. Stephen McDonald and Stephanie L. Knott, of Shuffield, Lowman & Wilson, P.A., Orlando, for Appellee.
   MONACO, C.J.

The appellant, William J. Garnett, III, appealed from a final order in a partition action. As Mr. Garnett passed away prior to the decision in this appeal, however, Josephine Jennie Miller was substituted for him as appellant. The primary issue raised by the appellant concerns whether constructive service upon Mr. Garnett was proper. Because we conclude that it was not, we reverse.

Mr. Garnett was an owner of an undivided interest as a tenant-in-common of a parcel of real estate consisting of about 25 undeveloped acres. The appellees, Gladys G. Partin, et al., were the other tenants-in-common with respect to the parcel and were the plaintiffs below. The appellees filed a complaint seeking, among other relief, a partition of the property. The complaint alleged that the acreage was not reasonably susceptible to an equitable physical division without prejudice to the appellees because of the configuration of the property. The appellees for this reason asked for a partition sale pursuant to section 64.071, Florida Statutes (2007), and claimed that a sale would not be prejudicial to Mr. Garnett’s interest. The appel-lees also requested an accounting to factor in any expenses paid by the plaintiffs and any possible waste committed by Mr. Gar-nett.

Although a summons was issued, the summons and complaint went unserved because Mr. Garnett’s residence was, according to the Sheriffs Office, a piece of wooded property. The sheriffs return contained a note to the effect that the process server was told by someone in a nursery business next door to this property that the defendant lived somewhere in the woods in a makeshift hut. The return of service read further, “It is close to impossible to get back to him.”

Based solely on this return, an attorney for the appellees filed an affidavit for service by publication stating that Mr. Gar-nett could not be found within Florida for the purpose of service of the summons. The attorney asserted that constructive service was authorized in this instance by rule 1.070(e), Florida Rules of Civil Procedure, and by section 49.041, Florida Statutes (2007). In addition, the attorney af-fied that he had made a diligent search and inquiry to locate William Garnett as evidenced by the return of service from the Orange County Sheriffs Office. The attorney wrote that to his “best knowledge and belief,” Mr. Garnett “has concealed himself so that process cannot be personally served upon him.” Notice of the action was then published.

The appellees next filed a motion for default by clerk for failure of Mr. Garnett to file a responsive pleading to the complaint that had been made available through publication or constructive service, and the clerk in due course entered a default. They then moved for entry of a final default judgment, and the trial court granted the motion. The court subsequently entered a final judgment for partition, and the property was sold at auction. The appellees were the successful bidders.

Eventually , Mr. Garnett filed a motion to set aside the default and default judgment, along with affidavits of Mr. Garnett. The Garnett affidavit indicated that Mr. Garnett had lived at the same place for the past twenty years, and that the same plaintiffs had served process on him personally at the same address on at least two separate occasions. In addition, Mr. Gar-nett affied that the attorney who signed the affidavit to support constructive service had actually spoken to Mr. Garnett by telephone, and told Mr. Garnett “not to worry about the paperwork he had received about the case, and that the paperwork did not mean anything.” Mr. Gar-nett’s affidavit also said that he was never asked to meet a deputy for purposes of accepting service, and that although his home is not visible from the road, “the Plaintiffs have been to Garnett’s home.” Finally, Mr. Garnett also indicated that his residence is accessible from a dirt road from a gate on the primary cross street, and that his neighbor (who the deputy apparently talked to), had access to a key to the gate. No part of this affidavit is rebutted by the appellees in the record, except that they assert that their attorney did not tell Mr. Garnett that the paperwork was not important.

The appellees subsequently moved to strike the motion to set aside default and default judgment. The trial court granted the motion, and then approved an accounting and distribution of funds and ordered the issuance of a new certificate of title. This appeal followed.

A fundamental requirement of due process in any judicial proceeding is notice reasonably calculated both to apprise interested parties of the pendency of the action, and to give the party so notified an opportunity to present his or her side of the controversy. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Due process considerations do take into account the need to serve a party by publication when the circumstances authorize it, but notice by publication is generally regarded as insufficient with respect to an individual whose name and address are known or easily ascertainable. Robinson v. Hanrahan, 409 U.S. 38, 40, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972); Lorie v. Calderon, 982 So.2d 1199, 1201 (Fla. 3d DCA 2008).

On its surface the law concerning service of process by publication is relatively clear. Where personal service of process cannot be had, service of process by publication may be utilized in any case allowed by section 49.011 upon any party, natural or corporation, known or unknown. § 49.021, Fla. Stat. (2007). Pursuant to section 49.011, service of process by publication may be utilized in any court on any party in order to partition real or personal property within the jurisdiction of the court. § 49.011(3), Fla. Stat. (2007).

As a condition precedent to service by publication, a statement must be filed in the action executed by the plaintiff, the plaintiffs agent or attorney, setting forth the matters contained in section 49.041, Florida Statutes. More specifically, section 49.041 requires the sworn statement of the plaintiff or his or her agent or attorney to show for purposes of obtaining sendee by publication on a natural person that: (1) a diligent search and inquiry had been made to discover the name and residence of such person, and that the same is set forth in the sworn statement “as particularly as is known” to the affiant; and (2) whether such person is over or under the age of 18 years, if known; and (3) that the residence of the person is either (a) unknown to the affiant, or (b) in some state or country other than Florida, or (c) in Florida but the person has been absent from the state for more than 60 days preceding the making of the sworn statement, or has concealed himself or herself so that process cannot be personally served, and that there is no person in Florida upon whom service of process would bind the absent or concealed defendant. In any case, the determinative factor is whether personal service “cannot be had.” See Gans v. Heathgate-Sunflower Homeowners Ass’n, Inc., 593 So.2d 549, 551 (Fla. 4th DCA 1992).

When a plaintiff seeks seiwice of process by publication, due process demands that an honest and conscientious effort, reasonably appropriate to the circumstances, be made to acquire the information necessary to fully comply with the controlling statutes. While certainly exceptions might exist, ordinarily this effort would involve more than simply one failed attempt at service, and would include talking to neighbors or trying to contact the person to be served by phone or mail. We reiterate, however, that absent unusual circumstances, including circumstances showing an attempt to avoid service of process, seiwice by publication is genei'ally not sufficient with respect to an individual whose name and address ai-e known or easily ascertainable. See Lone.

Here, although the appellees’ affidavit of diligent search was facially sufficient in that it alleged that diligent search and inquiry was made, the court was obligated to go further when that proposition was challenged. The test to be applied is whether the plaintiff reasonably employed the knowledge at his or her command, made diligent inquiry, and exei'ted an honest and conscientious effox-t appropidate to the surrounding circumstances to acquire the information necessary to enable the plaintiff to effect personal service on the defendant. Shepheard v. Deutsche Bank Trust Co. Americas, 922 So.2d 340, 343 (Fla. 5th DCA 2006); Demars v. Village of Sandahoood Lakes Homeowners Ass’n, Inc., 625 So.2d 1219, 1224 (Fla. 4th DCA 1993); Canzoniero v. Canzoniero, 305 So.2d 801, 803 (Fla. 4th DCA 1975).

Here, the appellees plainly failed this test. The unrebutted swoim statements indicate that the appellees knew precisely where Mr. Garnett lived because they had visited with him in his house and because he had twice previously been served at the same address listed for him in the summons. The attorney for the appellees (who, iixcidentally is not the appellate counsel for the appellees), knew that Mr. Garnett was in Florida because he spoke to him by phone and sent him correspondence. Reliance on the single return of process under the facts of this case could not possibly support the diligent search requirement.

A judgment against Mr. Garnett based on this flawed attempt at constructive service by publication is not in accordance with the applicable due process standards. The orders of the tidal judge denying the motion to vacate the default judgment and the ordei's denying other associated relief requested by Mr. Garnett arose, therefore, out of an abuse of discretion by the tidal court. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962); KFC USA, Inc. v. Depew, 879 So.2d 55 (Fla. 5th DCA 2004). Accordingly, we reverse the final default judgment of partition, as well as the orders pi-eceding it, including the order to issue certificate of title, and remand for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

GRIFFIN and EVANDER, JJ., concur.

      . We have compacted many other procedural activities of the parties leading to the motion to set aside the default and default judgment so as not to confuse the dispositive facts. We have concluded that we have jurisdiction over this matter.

      . The Florida Supreme Court has recently substantially revised the form affidavit of diligent search and inquiry. In re Amendments to the Florida Rules of Civil Procedure, - So.3d -, -, 2010 WL 455295 (Fla.2010). The new Form 1.942 requires substantial back-up and far more detail to substantiate the claim of diligent search and inquiry.


text:
    Javier ENRIQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1019.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2010.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Javier Enriquez, Monticello, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

See Lewis v. State, 777 So.2d 456 (Fla. 4th DCA 2001).

ORFINGER, EVANDER and COHEN, JJ., concur.


author: CLARK, J.

text:
    Michelle Ann PATRIZI, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5206.
    District Court of Appeal of Florida, First District.
    March 17, 2010.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

The defendant below appeals her convictions of both resisting an officer without violence and resisting a different officer with violence. She asserts that these convictions constitute double jeopardy and thus fundamental error. In addition, she challenges her legal, bottom-of-range guidelines sentence, imposed after the trial court denied her request for a downward departure. For the following reasons, the convictions and sentence are affirmed.

After a traffic stop, Appellant was arrested and transported to the police station by Officer Michael Henagan. When Officer Henagan parked in the police station parking lot, the appellant attempted to escape on foot but was promptly apprehended by Officer Henagan and escorted to the breath test room. Once inside, the appellant refused to remain seated, struggled with Officer Steven Jones, and “stomped on” Officer Jones’ foot as she resisted his efforts to restrain her in her seat. Appellant was charged with various crimes, including resisting officer Jones with violence (Count II) and resisting Officer Henagan without violence (Count VI). She entered a plea of nolo contendere and was adjudicated guilty of all charges.

Appellant’s characterization of her convictions for both resisting an officer with violence and resisting an officer without violence as double jeopardy and fundamental error must fail. Appellant’s acts resisting Officer Henagan and later, Officer Jones, were not part of a single criminal episode. “The test for determining whether two crimes occurred in the same criminal episode is whether there was a temporal break between the crimes, such that the defendant had an opportunity to pause, reflect, and form a new criminal intent.... If there was such a break, then the crimes occurred in separate criminal episodes and may be punished separately.” Beahr v. State, 992 So.2d 844, 846 (Fla. 1st DCA 2008).

Here, the appellant had an opportunity, after her flight in the parking lot was thwarted by Officer Henagan, to pause, reflect, and decide not to physically resist Officer Jones with violence in the breath test office. Accordingly, the crimes occurred in separate criminal episodes, the convictions were not fundamental error, and Appellant was not “twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const.

Regarding the trial court’s denial of a downward departure and entry of the legal, guidelines sentence, this sentence is not subject to appeal by the defendant under section 924.06, Florida Statutes. See also, Fla. R.App. P. 9.140(b)(1). “Subdivision (b)(1) lists the only matters that may be appealed by a criminal defendant, and it is intended to supersede all other rules of practice and procedure.” Fla. R.App. P. 9.140, Comm. Notes to sub-div. (l)(b), 1977 Amdmt. (emphasis supplied). The sentences which a defendant may appeal are limited to: an illegal sentence, a sentence which exceeds the statutory maximum for the offense, and as “otherwise provided by law.” § 924.06(l)(d) & (l)(e), Fla. Stat.; Fla. R.App. P. 9.140(b)(1)(E) & (b)(1)(F).

This court has recognized that “[t]he courts of Florida have consistently held that the statutory scheme does not give the appellate courts the authority to review a trial court’s decision to deny a request for a downward departure sentence.” Stancliff v. State, 996 So.2d 259, 260 (Fla. 1st DCA 2008); see also, Wyden v. State, 958 So.2d 540 (Fla. 3d DCA 2007); Jorquera v. State, 868 So.2d 1250 (Fla. 4th DCA 2004); Patterson v. State, 796 So.2d 572 (Fla. 2d DCA 2001); Melton v. State, 678 So.2d 434, 435 (Fla. 1st DCA 1996).

The state candidly disclosed to this court the opinions in Hines v. State, 817 So.2d 964 (Fla. 2d DCA 2002) and McCorvey v. State, 872 So.2d 395 (Fla. 1st DCA 2004). In those cases, the appellate courts did consider defendants’ appeals of their lowest-permissible guidelines sentences, imposed after the trial courts declined to depart downward. To the extent that these opinions “otherwise provided by law” an avenue for a defendant’s appeal of a guidelines sentences, the cases are distinguishable.

In both Hines and McCorvey, the trial courts assumed that under the circumstances of those cases, they were precluded as a matter of law from considering facts which might have qualified the defendants for mitigating circumstances to support downward departures. In contrast, the trial court in this case heard testimony and evaluated evidence to determine if the defense had established the mitigating factor provided in section 921.0026(2)(d), Florida Statutes. The court’s application of the statute to the facts presented was not “a misconception about its discretion in sentencing,” as was the case in both Hines and McCorvey. The guidelines sentence entered here is not subject to appeal by the appellant/defendant.

AFFIRMED.

VAN NORTWICK and MARSTILLER, JJ., concur.


author: LEVINE, J.

text:
    Brian NEIMAN, Appellant, v. Farhan NASEER, individually, Kashif Shaukat, individually, Sona Patel, individually, and The Formula Inc., a Florida corporation, Appellees.
    No. 4D09-4325.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Rehearing Denied April 16, 2010.

      Bart A. Houston of Genovese Joblove <& Battista, Fort Lauderdale, for appellant.
    John C. Dotterrer, Vincent Green, Jenny Torres, and Stephen J. Giovinco, of John C. Dotterrer Counsellors at Law, P.A., Palm Beach, for appellee Farhan Na-seer.
   LEVINE, J.

The issue presented is whether the trial court’s contempt order failed to provide appellant with the required specific information necessary to purge the contempt. We find that part of the trial court’s order failed to provide appellant the “key” to his potential incarceration, while the remaining part properly gave appellant sufficient detail to purge the finding of contempt.

The trial court entered a final judgment in a civil dispute against appellant in the amount of $530,000. After entry of the judgment, appellee Naseer requested the trial court in September 2008 to direct appellant to be examined concerning appellant’s property, as Naseer’s judgment remained unsatisfied. The court ordered appellant to appear before a special magistrate. The proceedings were stayed at the request of appellant due to a medical condition, which allegedly prohibited him from traveling, and the fact he was residing in Panama. Appellant was again ordered to appear for examination in January 2009 and again appellant filed a motion for protective order.

Naseer filed a motion for entry of an order to show cause why appellant should not be held in contempt for failure to appear for examination, claiming appellant had been traveling outside of Panama during the relevant time period. During a hearing in July 2009, Naseer presented evidence corroborating his claim of appellant’s travels. Additionally, Naseer also presented evidence that appellant admitted in electronic communications to having $7.2 million in assets. The court ordered appellant to appear at a hearing in September 2009 to determine if he violated the prior court orders requiring him to appear for examination.

Appellant once again failed to appear at the September hearing, and the trial court entered the civil contempt order that is the basis of this appeal. The order found that appellant’s failure to appear for examination was a willful violation of the trial court’s order of July 14, 2009. The order included a “coercive” fine of $2,000 per day from the date of the contempt order until the day appellant appears in person for examination. The trial court made a finding of appellant’s ability to pay based on the evidence in the record. The trial court also found appellant liable for Naseer’s attorney’s fees for the examinations and hearings that appellant failed to attend. The trial court stated that appellant “will remain liable” for attorney’s fees and “all coercive fines” listed, even after appellant purges himself of the contempt by appearing for and testifying at the examination.

At the end of the order finding civil contempt, there is a second part in which the trial court additionally stated the following:

Mr. Neiman is also found to be in contempt of this Court’s July 14, 2009 Order requiring [him] to personally appear and show cause. For this violation, the Court ORDERS that a warrant for the arrest of Mr. Neiman be issued forthwith. Mr. Neiman shall be incarcerated until such time as he appears before this Court in compliance with the July 14, 2009 Order to show cause and appears for and fully and satisfactorily completes a duly scheduled and noticed proceedings supplementary examination before and at the offices of Special Magistrate Portley and fully pays all fines and attorneys’ fees and costs then accrued pursuant to this contempt Order. Mr. Neiman may purge his contempt and end his incarceration upon his full compliance with all terms of this and any other then outstanding Orders of this Court.

From this contempt order, appellant appeals.

Appellant claims that the purge provision in the contempt order is defective because it fails to inform the contemnor of the exact dollar amount needed to purge the contempt. Appellant also claims that the order fails to state with specificity the outstanding orders that needed to be complied with in order to purge the contempt.

“A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.” Dentello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005). As this court has explained:

Because the purge provision is the contemn or’s key to the jailhouse cell, see Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985), it is essential that the con-temnor-and the jailor-be apprised of the exact amount of the purge which will enable the contemnor to purge the contempt and gain release from jail.

Alves v. Barnett Mortgage Co., 688 So.2d 459, 460 (Fla. 4th DCA 1997).

When evaluating the trial court’s contempt order we need to examine each part separately. As to the first part of the order, the trial court lists in detail those acts needed to be performed by appellant to purge the contempt order, namely appearing and fully testifying at an examination. The trial court goes on to award Naseer attorney’s fees due to the failure of appellant to attend the examinations and hearings. “If a party is found in contempt, it is proper for the court to compensate the injured party by assessing attorney’s fees for the contempt proceedings.” Nical of Palm Beach, Inc. v. Lewis, 981 So.2d 502, 507 (Fla. 4th DCA 2008) (quoting Levine v. Keaster, 862 So.2d 876, 880 (Fla. 4th DCA 2003)). The trial court was clear to state that appellant remained liable for the attorney’s fees and the $2,000 per day coercive fíne even after the purge was removed. This part of the contempt order clearly listed what needed to be done by the contemnor to purge the contempt provision.

As to the second part of the order, the provision requiring that appellant be incarcerated until he “fully pays all fines and attorneys’ fees and costs” does not provide the contemnor the exact dollar amount needed to purge the contempt. See Alves, 688 So.2d at 460. The provision that appellant fully comply with “all terms of this and any other then outstanding Orders of this Court” similarly does not inform appellant of what he needs to do in order to purge himself of the contempt order. In Alves, this court found defective a contempt order which gave the appellant “ten (10) days to comply with Orders,” but did not identify which previous orders had been violated. Id. The court explained, “The order does not identify which previous orders have been violated. Even assuming appellant could ascertain which orders are referred to, appellant should not be required to investigate prior court orders to determine what he must do to purge.” Id.

We find the second part of the contempt order should be stricken since it fails to provide with specificity what the contem-nor needs to do to purge the contempt order. We therefore reverse and remand with directions for the circuit court to strike those defective portions of the order, and we affirm the remainder of the contempt order.

Affirmed in part, reversed in part, and remanded.

TAYLOR and GERBER, JJ., concur.


author: HAZOURI, J.

text:
    USAA CASUALTY INSURANCE COMPANY, Appellant, v. PEMBROKE PINES MRI, INC. and Meghan Cahill, Appellees.
    No. 4D08-4360.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.

      Douglas H. Stein and Stephanie Martinez of Seipp & Flick, Miami, for appellant.
    Joseph R. Littman, Charles J. Kane and Harley N. Kane of Kane & Kane, P.A., Boca Raton, for appellee Pembroke Pines MRI, Inc.
   HAZOURI, J.

This appeal comes to us from the trial court, who certified two questions of great public importance:

Whether the Defendant is on notice of a covered loss where the claim form submitted by an independent diagnostic corporate supplier of MRI services billing globally does not display a professional license in Block 31 that is not its own and is not a license of the signatory of the claim form?
Does F.S. § 627.736(5)(d) require an independent diagnostic corporate supplier of MRI services, who is entitled to submit a claim for both the technical and professional components, to include the professional license number of either the interpreting radiologist or the Plaintiffs medical director, in block 31 of its CMS 1500 claim?

Upon our review, we consolidated the two certified questions into one:

Does an independent diagnostic corporate supplier of MRI services have to include the professional license number of either the interpreting radiologist or its medical director in block 31 of its CMS 1500 claim form to have furnished notice of the amount of covered loss or medical bills under section 627.736(5)(d), Florida Statutes (2006)?

We answer the rephrased certified question in the negative.

Pembroke Pines MRI, Inc. (Pembroke MRI) sued USAA Casualty Insurance Company (USAA) for assigned PIP benefits attributable to MRI testing supplied to USAA’s insured, Meghan Cahill, in December 2006. USAA’s sole reason for nonpayment is its assertion and affirmative defense of lack of notice because of a claim form that was not “properly completed.” USAA argued the claim form was not properly completed because the Tenderer of services did not display a “professional license number” in Box 31 of that form. Also, with the claim form at issue, USAA received Cahill’s MRI images and the radiologist’s report for those images. The second page of the radiologist’s report included the name of the radiologist but no signature or professional license number. USAA did not contend the lack of radiologist’s signature or the lack of professional license number in any way indicated the medical services rendered were not reasonable and necessary.

The parties filed cross motions for summary judgment. The trial court denied USAA’s motion and granted Pembroke MRI’s motion, holding Pembroke MRI was the provider of the billed services; that section 627.736(5)(d)’s requirement that a professional license number be displayed in Box 31 did not apply to a provider who did not have a professional license number and who was not required by law to have one; and that USAA was on notice of the claim, as it was in all other respects legally sufficient. The trial court awarded Pembroke MRI $1,042.18 in damages plus prejudgment interest.

In making this decision, the trial court stated that Pembroke MRI, although a provider of medical services, is an “independent corporate diagnostic testing company,” which Florida’s Department of Business and Professional Regulation does not regulate. As a result, the trial court found that Pembroke MRI is not required to supply a professional license number under section 627.736(5)(d), as it is not a “professional” and not required to retain a “professional license number.” The trial court further found the medical director of Pembroke MRI and the radiologist who rendered services did not need to provide either of their professional license numbers. This was because Pembroke MRI was the provider of medical services to Cahill — not the medical director nor the radiologist. The trial court also stated that to require otherwise is contrary to legislative intent and risks insurance fraud. This is because Pembroke MRI, by providing a license number it could not possibly have, would have violated the notice found on the back of the CMS 1500 form, which states:

NOTICE: Any person who knowingly files a statement of claim containing any misrepresentation or any false, incomplete or misleading information may be guilty of a criminal act punishable under law and may be subject to civil penalties. SIGNATURE OF PHYSICIAN (OR SUPPLIER): I certify that the services listed above were medically indicated and necessary to the health of this patient and were pex*sonally furnished by me or my employee under my personal direction.

On appeal, USAA contends the trial court’s interpretation is incorrect because it did not receive notice of a covered loss. It argues, as it did before the trial court, that it did not receive notice of a covered loss for the following reasons: 1) the legislature intended that Pembroke MRI is to provide a professional license number because it is a “provider” of medical services under section 627.736(5)(d) and is not expressly exempt from this requirement; 2) Pembroke MRI’s inability to obtain a professional license number does not exempt it, as either its medical director’s professional license number or the service rendering radiologist’s professional license number could fulfill that requirement; and 3) Pembroke MRI’s failure to provide the correct license number precludes recovery because, regardless of its substantial completion of the CMS 1500 form, the legislature intended full completion of the form is needed to fulfill section 627.736(5)(d)’s notice requirements.

The trial court, however, did not err in its interpretation of section 627.736(5)(d), as it is impossible for a corporation not regulated by Florida’s Department of Business and Professional Regulation to give a professional license number on a CMS 1500 form. The trial court also did not err because Pembroke MRI, by substantially completing the CMS 1500 form, provided USAA with notice of a covered loss. This is because it fulfilled section 627.736(5)(d)’s notice requirements by providing USAA with a “properly completed” CMS 1500 form. Pembroke MRI is, therefore, entitled to recovery.

If an insured submits a claim for PIP benefit, but fails to properly complete a CMS 1500 form, the insurer may avoid recovery- by asserting as an affirmative defense the failure to receive notice of a covered loss under section 627.736(5)(d). See, e.g., Ortega v. United Auto. Ins. Co., 847 So.2d 994, 996-97 (Fla. 3d DCA 2003). But, if a claim form is “properly completed,” an insurer receives notice of a covered loss under section 627.736(5)(d). This is in accord with the last provision of that section, which states:

For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply wdth this paragraph, and unless the statements or bills are properly completed in their entirety as to all matenal provisions, with all relevant information being provided therein.

(emphasis added).

The definition section of the Florida Motor Vehicle No-Fault Law defines “[pjrop-erly completed” as “providing truthful, substantially complete, and substantially accurate responses as to all material elements to each applicable request for information or statement by a means that may lawfully be provided and that complies with this section, or as agreed by the parties.” § 627.732(13) (emphasis added).

In United Automobile Insurance Co. v. Professional Medical Group, Inc., 26 So.3d 21 (Fla. 3d DCA 2009) (reviewing a petition for writ of certiorari from a decision by the circuit court in its appellate capacity), the Third District interpreted whether an insured complied with section 627.736(5)(d)’s requirements when it failed to give the provider’s professional license number in Box 31 of its initial claim. The Third District stated that, due to the plain language of section 627.736(5)(d)’s last provision and the definition of “properly completed,” “a bill or statement need only be ‘substantially complete’ and ‘substantially accurate’ as to relevant information and material provisions in order to provide notice to an insurer.” Id. The Third District then held the insured’s initial claim was “ ‘substantially accurate’ as to all relevant information and material provisions,” given the following circumstances:

In this case, the initial set of bills that PMG furnished to United contained the name of the physician in the appropriate box on the form. Moreover, numerous other forms and medical records provided to United contained the physician’s name as well. United did not claim below that it did not know who the physician was, or that the person named on the form was not in fact a licensed physician. Indeed, after receiving the bills, United proceeded to process the matter by sending the insured, Botta, to examinations and a peer review. At no time did United object to the missing physician license number. Given these facts, United cannot claim it was harmed or prejudiced by the missing number. As such, we find that the initial set of bills PMG provided to United were “substantially complete” as to all relevant and material information as required by section 627.736(5)(d).

Id.

Here, Pembroke MRI properly completed the CMS 1500 form, as it provided substantially complete and accurate responses to all relevant information and material elements of the form. In particular, Pembroke MRI filled out the entire form except for the professional license number, and, in Box 31, it provided a signature. The only portion not correctly completed was the line requiring a professional license number. The claim sent to USAA also included the MRI images and the radiologist’s report. That report included the name of the radiologist. USAA, via the webpage of the Department of Business and Professional Regulation, could have checked whether the radiologist had a license. It was, therefore, given a means by which to check for a professional license number. Thus, the claim submitted to USAA complied with section 627.736(5)(d), because it provided substantially accurate responses to all relevant information and material elements. We accordingly affirm.

Affinned.

MAY and DAMOORGIAN, JJ., concur.

      . Section 627.736(5)(d), Florida Statutes (2006) provides:
      All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form, UB 92 forms, or any other standard form approved by the office or adopted by the commission for purposes of this paragraph. All billings for such services rendered by providers shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) or Healthcare Correct Procedural Coding System (HCPCS), or ICD-9 in effect for the year in which services are rendered and comply with the Centers for Medicare and Medicaid Services (CMS) 1500 form instructions and the American Medical Association Current Procedural Terminology (CPT) Editorial Panel and Healthcare Correct Procedural Coding System (HCPCS). All providers other than hospitals shall include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.” In determining compliance with applicable CPT and HCPCS coding, guidance shall be provided by the Physicians' Current Procedural Terminology (CPT) or the Healthcare Correct Procedural Coding System (HCPCS) in effect for the year in which services were rendered, the Office of the Inspector General (OIG), Physicians Compliance Guidelines, and other authoritative treatises designated by rule by the Agency for Health Care Administration. No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.