author: SALTER, J.

text:
    Valerie Viviane BENSOUSSAN and Marc Cohen, Appellants, v. BANON5 LLC, etc., et al., Appellees.
    No. 3D17-1493
    District Court of Appeal of Florida, Third District.
    Opinion filed July 18, 2018
    Xander Law Group, P.A., and Wayne R. Atkins, Miami, for appellants.
    Eric J. Grabois, Miami Beach, for appellees.
    Before SALTER, EMAS and LOGUE, JJ.
   SALTER, J.

Valerie Bensoussan and Marc Cohen ("Prior Owners") appeal a final judgment and circuit court order dismissing their amended complaint with prejudice. We reverse and remand the case for further proceedings.

Circuit Court Proceedings and 2015 Appeal

The appellees are a company ("Banon5") which acquired title to the condominium unit previously owned by the Prior Owners (the "Unit"). The Prior Owners lost title to the Unit in a foreclosure; Banon5 was the successful bidder at the foreclosure sale. Another appellee, Pierre Elmaleh, is a principal and agent of Banon5.

Following the foreclosure sale, the Prior Owners commenced an earlier appeal to this Court seeking review of orders denying their objections to the foreclosure sale and their motion to vacate that sale. That prior appeal, Cohen v. Laze-E-J, LLC, Case No. 3D15-1382, was pending when Banon5 sought and obtained issuance of a writ of possession (July 1, 2015) in order to obtain possession and control of the Unit. Neither the final judgment of foreclosure nor the writ of possession, however, authorized Banon5 to take or retain possession of the Prior Owners' personal property within the Unit.

On the same day the trial court granted Banon5's motion for a writ of possession, the Prior Owners filed an emergency motion in this Court for review of the trial court's order denying a stay pending their appeal. Before the writ of possession was carried out, this Court entered a temporary stay (July 2, 2015) and directed that a response to the emergency motion be filed within ten days by the foreclosing lender and Banon5 in Case No. 3D15-1382.

After consideration of Banon5's response, this Court lifted the temporary stay on July 14, 2015. The following day, Banon5 and Elmaleh brought the police to the Unit to carry out the writ of possession.

The execution of the writ of possession and disposition of the Prior Owners' personal property inside the Unit became the subject of a separate, 2016 lawsuit by the Prior Owners against Banon5, Elmaleh, and the condominium association. The present appeal was taken from the final judgment and order of dismissal in that separate case.

In their first amended complaint in the 2016 lawsuit, the Prior Owners alleged four of the five counts against Banon5 and Elmaleh, for civil theft, conversion, replevin, and negligence, and a single negligence count against the association. The allegations essentially contended that: Banon5 and Elmaleh did not allow the Prior Owners a reasonable time (following this Court's termination of the temporary stay) within which to remove their personal property from the Unit; Banon5 and Elmaleh had no right to possession or control of that personal property; Banon5 and Elmaleh wrongfully changed the locks and denied access to the Unit to the Prior Owners and their scheduled movers, depriving them of the opportunity to move the personal property to their new residence; and unlicensed movers and persons hired by Banon5 and Elmaleh stole the personal property "for their own use, or to be sold for their benefit."

In 2017, the trial court entered the final judgment and order dismissing the first amended complaint with prejudice, and this appeal followed.

Analysis

We review de novo the final order of dismissal with prejudice, assuming all allegations of the first amended complaint to be true, and construing all reasonable inferences from those allegations in favor of the Prior Owners. United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103-04 (Fla. 3d DCA 2010).

I. Section 83.62, Florida Statutes, Is Inapplicable

The trial court order states that the Prior Owners were alleging that "the put-out on July 15, 2015 is governed by Florida Statutes § 83.62." That statute is a part of the Florida Residential Landlord and Tenant Act, and the Act applies to "the rental of a dwelling unit." Section 83.62 is not applicable to a writ of possession to dispossess a former owner remaining in possession after a foreclosure sale with no rental agreement in effect.

But the trial court's order was incorrect in its implications that all of the Prior Owners' claims relied on that statute, and that the statute itself offered Banon5 and Elmaleh "an immunity from liability for any loss, destruction or damage to the personal property after its removal from the premises." The amended complaint mentioned section 83.62 in a footnote to one paragraph of the general allegations and in one paragraph within the conversion count. There is no separate claim grounded on a violation of section 83.62, nor are the causes of action alleged in the amended complaint irrevocably tethered to a breach of that statute.

Section 83.62(2) applies to a writ of possession executed by the sheriff regarding a residential apartment. It authorizes the landlord or an agent of the landlord to "remove any personal property [of the tenant being evicted] found on the premises to or near the property line." When that procedure has been followed, "Neither the sheriff nor the landlord or the landlord's agent shall be liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed." Id.

Because the statute is inapplicable to the record before us, however, it does not provide immunity for Banon5 or Elmaleh, or legal grounds for the order dismissing the Prior Owners' amended complaint with prejudice. The parties were never landlord and tenant, one to the other. Our conclusion on this point aligns with that of the Fifth District in Skelton v. Real Estate Solutions Home Sellers, LLC, 202 So.3d 960 (Fla. 5th DCA 2016).

II. Equitable Subrogation to Mortgagee's Rights

The order of dismissal also determined that Banon5 and Elmaleh had a legal right to retain the Prior Owners' personal property because Banon5 had become equitably subordinated to the foreclosing mortgagee's rights. The order observed that the mortgage in this case encumbered "all furniture, furnishings, fixtures and equipment contained in or appurtenant to said premises [the Unit]."

An examination of the final judgment of foreclosure, however, discloses that the mortgage lien and the sale only included the Unit, and not any personal property within the Unit. The subrogation argument also fails under the well-settled principle of merger. Nack Holdings, LLC v. Kalb, 13 So.3d 92, 94 (Fla. 3d DCA 2009) ; Whitehurst v. Camp, 699 So.2d 679, 682 (Fla. 1997).

When a final judgment is entered foreclosing a mortgage, the mortgage itself "loses its identity," and the final judgment itself controls the mortgagee's/judgment creditor's rights. Nack Holdings, LLC, 13 So.3d at 94 n.2 (quoting Whitehurst, 699 So.2d at 682 ). At the foreclosure sale, the Clerk only sold the Unit, and there existed no residual mortgage lien for Banon5 to buy regarding the personal property within the Unit.

III. The Prior Owners' Claims

We agree with the trial court that the Prior Owners do not have a cause of action for property removed from the Unit in the presence of the police pursuant to the writ of possession. That said, however, we find that the allegations of the first amended complaint state a cause of action regarding Banon5's and Elmaleh's exercise of control over the Prior Owners' personal property in the Unit after the locks were changed and after Elmaleh refused to allow the Prior Owners and their movers to enter the Unit to remove property in the Unit. Envases Venezolanos, S.A. v. Collazo, 559 So.2d 651, 652-53 (Fla. 3d DCA 1990). The allegations in the amended complaint and its attachments are legally sufficient "[u]nder the applicable standard of review at this procedural point," though the allegations remain subject to proof, defenses, and affirmative defenses as the case proceeds. See Ice v. Cosmopolitan Residences on S. Beach, a Condo. Ass'n, 237 So.3d 408, 412 (Fla. 3d DCA 2017).

IV. Conclusion

The final judgment and order granting dismissal of the amended complaint with prejudice is reversed and the case is remanded to the trial court for further proceedings.

      In November 2015, the Prior Owners voluntarily dismissed their earlier appeal (Case No. 3D15-1382) relating to their motion to vacate the final judgment of foreclosure and their objections to the foreclosure sale to Banon5.

      This appeal does not involve the claim by the Prior Owners against the condominium association; the Prior Owners voluntarily dismissed that claim with prejudice before the trial court entered the final order presently under review.

      The amended complaint acknowledges that a limited number of items of the Prior Owners' personal property were returned to the control of the Prior Owners in August 2015 as the Miami Beach police investigated the loading of a pickup truck with those items. Allegedly, the items were being removed from the condominium by employees of Banon5 and Elmaleh. The itemized list of the Prior Owners' personal property subject to their claims and located in the Unit at the time they were locked out included estimated values for each item and a total exceeding $209,000.00.

      § 83.41, Fla. Stat. (2015).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sandra SADLAK, Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    No. 3D16-2666
    District Court of Appeal of Florida, Third District.
    Opinion filed July 18, 2018.
    Kenzie N. Sadlak, P.A. and Kenzie N. Sadlak, Coral Gables, for appellant.
    Robertson, Anschutz & Schneid, P.L., Cynthia L. Comras, David Rosenberg, and Jarrett Cooper (Boca Raton), for appellee.
    Before LOGUE, LUCK and LINDSEY, JJ.
   PER CURIAM.

Sandra Sadlak appeals a nonfinal order denying her motion to quash service of process in a residential foreclosure case, arguing that: (1) the process server's return was not regular on its face; (2) the trial court erred in considering testimony about photographs; and (3) the trial court erred in holding an evidentiary hearing that was not properly noticed. We affirm, and address only the first issue about the return of service.

Sadlak contends that the return of service was irregular on its face because it didn't specify the type of process served, it didn't identify the title of the lawsuit against Sadlak or the nature of the lawsuit, and it didn't specify where Sadlak was served. To be regular on its face, the return of service must meet the requirements of the relevant method-of-service statute - in this case, section 48.031 - and the "Return of execution of process" statute (section 48.21). See Vives v. Wells Fargo Bank, N.A., 128 So.3d 9, 15 (Fla. 3d DCA 2012) ("[T]he verified return of service is not regular on its face because it fails to satisfy the requirements set forth in sections 48.031(1)(a) and 48.21."); Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177, 180-81 (Fla. 3d DCA 2011) ("[T]he verified returns of service were regular on their face, containing all of the information in compliance with the specific requirements of section 48.031(1)(a).... This determination was made by simply reviewing the four corners of the return to see if it contained all of the information required by the applicable statute: Section 48.21, Florida Statutes (1979) requires those serving process to record, among other things, the manner of execution of the process and the name of the person served." (quotation omitted) ). "A process server's return which is regular on its face is presumed valid absent clear and convincing evidence to the contrary." Vives, 128 So.3d at 14 (quotation omitted).

Section 48.031(1)(a) provides that "[s]ervice of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper." § 48.031(a)(1), Fla. Stat. (2016). Service must be done in this manner, and the return must include the following information:

Each person who effects service of process shall note on a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served and, if the person is served in a representative capacity, the position occupied by the person. The return-of-service form must be signed by the person who effects the service of process.

Id. § 48.21(1).

The return of service, here, meets these requirements. The return, contrary to Sadlak's claim, says that the process server delivered the summons, complaint, and lis pendens, which complied with the requirement in section 48.031(1)(a) that "[s]ervice of original process [be] made by delivering a copy of it to the person to be served with a copy of the complaint."

While sections 48.031(1)(a) and 48.21(1) do not require that the return of service list the title of the case and describe what it is about, the return here did those things too. It gave the case name as "Plaintiff Nationstar Mortgage LLC; et. seq. vs. Defendant Sandra Sadlak, et al," and provided the case number. And the return of service stated that Sadlak was served with the complaint, which spelled out the allegations and the nature of the lawsuit.

Finally, even though sections 48.031(1)(a) and 48.21(1) do not require that the return list the exact delivery location of the summons and complaint when they are delivered in person, the return here provided the exact location. Sadlak was served, the return said, inside her car at 9353 Southwest 227th Street 7-21 (which is the address of the property subject to the foreclosure action).

The return was regular on its face, and Sadlak did not present clear and convincing evidence that she was not served. Thus, like the trial court, we presume the return was valid to prove service, and affirm the trial court's order denying the motion to quash service of process.

Affirmed.

      "We review de novo the trial court's ruling on a motion to quash service of process." Morgan Stanley Smith Barney, LLC v. Gibraltar Private Bank & Tr. Co., 162 So.3d 1058, 1060 (Fla. 3d DCA 2015).


text:
    P.F-G, Appellant, v. DEPARTMENT OF EDUCATION, DIVISION OF VOCATIONAL REHABILITATION, Appellee.
    Case No. 5D17-3675
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018 Rehearing Denied August 28, 2018
    P.F-G., Clermont, Pro se.
    Brent McNeal, Florida Department of Education, Tallahassee, for Appellee.
   PER CURIAM.

P. F-G. appeals the dismissal, with prejudice, of her amended petition challenging the use of an unadopted rule in vocational rehabilitation proceedings, filed pursuant to section 120.56(4), Florida Statutes (2017). Appellant raises several issues on appeal, but we only address the arguments that were preserved. First, Appellant asserts the State of Florida Division of Administrative Hearings ("DOAH") erred by dismissing her initial petition when she alleged sufficient facts to challenge the unadopted rule. Second, Appellant argues that DOAH erred by dismissing her amended petition with prejudice because section 120.569, Florida Statutes (2017), does not expressly state that DOAH may dismiss with prejudice in this situation. We disagree and, therefore, affirm on both grounds.

After receiving assistance for her undergraduate degree, Appellant returned to the Florida Department of Education, Division of Vocational Rehabilitation ("Division"), seeking further assistance to attend law school. The Division denied her request, and Appellant brought this petition, challenging the Division's use of the Counsel Policy Manual. Appellant argued that section 13.01 of the Policy Manual is an unadopted rule "because it implements, interprets, or prescribes law or policy or describes the procedure or practice requirements," of the Division.

On September 22, after conducting a telephonic hearing, DOAH dismissed the petition, with leave to amend within ten days. Appellant untimely filed her amended petition on October 2 at 6:22 p.m. According to Florida Administrative Code 28-106.104 (3), "[a]ny document received by the office of the agency clerk before 5:00 p.m. shall be filed as of that day but any document received after 5:00 p.m. shall be filed as of 8:00 a.m. on the next regular business day." Therefore, the amended petition was treated as though it was filed at 8:00 a.m. on October 3. The Division moved to dismiss with prejudice the amended petition because it was untimely. Appellant responded that the amended petition was late due to excusable neglect. Ultimately, DOAH dismissed the amended petition, stating that Appellant did not argue for equitable tolling of the deadline, excusable neglect does not apply in administrative proceedings, and Appellant had the opportunity to file for an extension but chose not to do so. Appellant appeals that decision.

According to section 120.56, Florida Statutes (2017) ;

Any person substantially affected by an agency statement that is an unadopted rule may seek an administrative determination that the statement violates s. 120.54(1)(a). The petition shall include the text of the statement or a description of the statement and shall state facts sufficient to show that the statement constitutes an unadopted rule.

Despite Appellant's assertion that she alleged sufficient facts to challenge the unadopted rule, the original petition was riddled with conclusory statements, without any factual basis to support her claims. Accordingly, DOAH properly dismissed the petition because Appellant failed to allege facts to establish that the challenged statements constitute unadopted rules. See id.

In addition, DOAH did not err in dismissing Appellant's amended petition as untimely. Appellant was afforded one opportunity to amend her petition pursuant to section 120.569(2)(c), but she filed her amended petition late. As such, DOAH was required to dismiss her amended petition as untimely and was free to dismiss the petition with prejudice because it had already given Appellant the opportunity to amend. See § 120.569(2)(c), Fla. Stat. (2017) ("A petition shall be dismissed if it is not in substantial compliance with these requirements or it has been untimely filed. Dismissal of a petition shall, at least once, be without prejudice to petitioner's filing a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured."). Accordingly, we affirm the dismissal with prejudice of Appellant's untimely filed amended petition.

AFFIRMED.

COHEN, C.J., SAWAYA and WALLIS, JJ., concur.

      Appellant also argued that the order dismissing the original petition was legally insufficient and that DOAH erred by not conducting a hearing to determine whether equitable tolling should apply to her untimely filed amended petition. However, Appellant failed to preserve these issues because she did not raise the specific arguments below. See Stueber v. Gallagher, 812 So.2d 454, 456 (Fla. 5th DCA 2002) ("In administrative appeals a claim of error cannot be raised for the first time on appeal.").

      The Division is the administrative body responsible for compliance with the federal Vocational Rehabilitation Act. See 29 U.S.C. § 701 ; § 413.202, Fla. Stat. (2017).


text:
    Nonna GOMBERG, Yury Budnitsky and Lyudmila Budnitsky, Appellants, v. The BANK OF NEW YORK MELLON, etc., Appellee.
    Nos. 3D18-689 & 3D18-690
    District Court of Appeal of Florida, Third District.
    Opinion filed July 18, 2018
    Spivak Diez Litigation Attorneys, P.A. and Avraham A. Spivak ; Lavin Law Group, P.A., Andrew T. Lavin and Scott E. Tuckman, for appellants.
    Akerman, LLP, Nancy M. Wallace (Tallahassee), William P. Heller (Fort Lauderdale) and Eric M. Levine (West Palm Beach), for appellee.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. 1.071 ("Constitutional Challenge to State Statute or County or Municipal Charter, Ordinance, or Franchise; Notice by Party").


author: JOLLEY, M.G., Associate Judge.

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee, in Trust FOR The REGISTERED HOLDERS OF CITIGROUP MORTGAGE LOAN TRUST 2007-AHL2, ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-AHL2, etc., Appellant, v. Vivien F. WILSON and Marc J. Wilson, Appellees.
    Case No. 5D17-2130
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    Allison Morat and Meghan Keane, of Pearson Bitman LLP, Maitland, for Appellant.
    J. Christopher Crowder, of Faro & Crowder, P.A., Melbourne, for Appellees.
   JOLLEY, M.G., Associate Judge.

U.S. Bank National Association ("the Bank") appeals the final summary judgment entered in favor of Vivien and Marc Wilson ("the Wilsons"). We reverse and remand.

On October 17, 2006, the Wilsons signed a promissory note secured by a mortgage in exchange for a loan of $164,000. In December 2007, the Wilsons failed to make the monthly payment due on the note. Following two dismissed foreclosure actions, the Bank filed the instant complaint on September 3, 2014, alleging that it had "not been paid the payment due December 1, 2007, and all subsequent payments, which has resulted in a default of the note and mortgage."

The Wilsons answered the complaint and raised affirmative defenses, including the expiration of the statute of limitations under section 95.11(2)(c) of the Florida Statutes (2014). The Bank did not file a reply. The Wilsons moved for summary judgment, arguing that the complaint, filed on September 3, 2014, was based upon a single default on December 1, 2007, well-beyond the five-year statute of limitations. The trial court granted the motion and entered a final summary judgment.

The Bank contends that the trial court erred in entering a final summary judgment based upon the expiration of the statute of limitations because the pleadings alleged a continuous state of default. We agree.

A complaint alleging a continuous state of default, which includes acts of default within the five-year period preceding the filing of the complaint, is not barred by the statute of limitations. U.S. Bank Nat'l Ass'n for Lehman XS Tr. Mortg. Pass-Through Certificates, Series 2007-16N v. Morelli , 43 Fla. L. Weekly D1295, 249 So.3d 717, 2018 WL 2708699 (Fla. 3d DCA June 6, 2018). Here, the complaint sufficiently alleged a continuous state of default by alleging an initial default for the failure to make "the payment due December 1, 2007, and all subsequent payments." Thus, the statute of limitations did not bar the complaint. Id. ; see also Deutsche Bank Nat'l Tr. Co. v. Miller , 239 So.3d 789 (Fla. 5th DCA 2018) ; Bank of N.Y. Mellon v. Stallbaum , 230 So.3d 1271 (Fla. 5th DCA 2017) ; U.S. Bank N.A. v. Diamond , 228 So.3d 177, 178 (Fla. 5th DCA 2017).

The Wilsons raise several alternative bases for affirmance under the "tipsy coachman" rule. See Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 645 (Fla. 1999) (allowing the appellate court to affirm if the trial court reached the right result, but for the wrong reason, so long as "there is any basis which would support" the trial court's ruling). Only one of these arguments merits discussion: whether the summary judgment may be affirmed because the Bank failed to file a reply to avoid the affirmative defense of statute of limitations.

Florida Rule of Civil Procedure 1.100(a) provides that, if an answer contains an affirmative defense and the plaintiff seeks to avoid it, the plaintiff must file a reply on the avoidance. However, avoiding an affirmative defense is different from a denial of that affirmative defense, and a denial is neither required nor permitted by the rules. Kitchen v. Kitchen , 404 So.2d 203, 205 (Fla. 2d DCA 1981). Instead, a reply to an affirmative defense is required only to allege new facts which may be sufficient to avoid the legal effect of the facts contained in the affirmative defense. Abston v. Bryan , 519 So.2d 1125, 1127 (Fla. 5th DCA 1988) ; Kitchen , 404 So.2d at 205. "When a defendant files affirmative defenses and the plaintiff does not reply, the affirmative defenses are deemed denied and therefore false." Roman v. Bogle , 113 So.3d 1011, 1014 (Fla. 5th DCA 2013), rev. denied 130 So.3d 691 (Fla. 2013) ; see also Fla. R. Civ. P. 1.110(e) (an averment in a pleading "to which no responsive pleading is required or permitted shall be taken as denied or avoided"); Genuinely Loving Childcare, LLC v. Bre Mariner Conway Crossings, LLC , 209 So.3d 622, 625 (Fla. 5th DCA 2017) ; Frisbie v. Carolina Cas. Ins. Co. , 162 So.3d 1079, 1080-81 (Fla. 5th DCA 2015) ; Hertz Commercial Leasing Corp. v. Seebeck , 399 So.2d 1110, 1111 (Fla. 5th DCA 1981).

Here, the complaint sufficiently alleged a continuous state of default. The Bank was not required to file a reply because no additional facts were necessary to address the statute of limitation defense, and the defense was thus denied. Kitchen, 404 So.2d at 205. Cf. Frisbie , 162 So.3d at 1080-81 ("Here, because Appellee raised the issue of unclean hands as an avoidance of Appellants' two affirmative defenses, Appellee should have pleaded the issue in a reply ...."). Therefore, the Wilsons cannot rely upon the failure of the Bank to file a reply as a basis for this Court to affirm the final summary judgment under the "tipsy coachman" rule.

Accordingly, we reverse the entry of the final summary judgment and remand for further proceedings.

REVERSED AND REMANDED.

TORPY and BERGER, JJ., concur.


author: TORPY, J. BERGER, J. dissenting.

text:
    Klaus GOERSCH and Brigitte Goersch, Appellants, v. CITY OF SATELLITE BEACH, Appellee.
    Case No. 5D17-386
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    Clifford R. Repperger, Jr., of Rossway Swan Tierney Barry Lacey & Oliver, P.L., Melbourne, for Appellants.
    Clifford B. Shepard and Patrick Brackins, of Shepard, Smith, Kohlmyer & Hand, P.A., Maitland, for Appellee.
   TORPY, J.

We address an issue of first impression for this Court regarding whether a motion for sanctions served pursuant to section 57.105(4), Florida Statutes (2015), must be served in accordance with Florida Rule of Judicial Administration 2.516, even though the motion may not be filed, if at all, until after the expiration of a safe harbor period. Several of our sister courts have reached conflicting dispositions on this and an analogous issue regarding proposals for settlement, which, similar to section 57.105 motions, are served but not contemporaneously filed. We affirm and hold that a section 57.105 motion must be served in strict compliance with rule 2.516.

Section 57.105 provides a statutory mechanism for recovery of attorney's fees when asserted claims or defenses fall below the statutory threshold. Procedurally, it involves a two-step process. § 57.105(4), Fla. Stat. First, the movant must serve the motion on the opposing party, but may not immediately file the motion. Id. Second, only if the opposing party fails to withdraw or otherwise correct the challenged claim or defense within twenty-one days may the movant file the motion with the court and pursue sanctions by hearing. Id. The statute is silent on particular procedures for serving or filing the motion. Accordingly, it is necessary to look to the Florida Rules of Civil Procedure for direction.

Florida Rule of Civil Procedure 1.080 is the starting point for service of pleadings, orders and "every other document filed in the action." Fla. R. Civ. P. 1.080(a). It requires service in conformity with rule 2.516. Similar to rule 1.080, rule 2.516 addresses service of pleadings and "every other document filed in any court proceeding." Fla. R. Jud. Admin. 2.516(a). It mandates service by e-mail and compliance with certain technical requirements, including service to all designated e-mail addresses, attachment of the documents being served in "PDF" format, inclusion of specific identifying data in the subject line and body of the e-mail, and a limitation on the size of the e-mail and documents attached thereto. Fla. R. Jud. Admin. 2.516(b)(1)(E). In addition, but not in lieu of , redundant service may be accomplished by traditional means such as mail, facsimile, or personal delivery. Fla. R. Jud. Admin. 2.516(b)(2).

In this case, Appellants' initial e-mail service of the motion admittedly did not comply with the requirements of rule 2.516 in several respects. After the twenty-one-day safe harbor period expired, Appellants filed the motion and served it a second time, at which point they complied with the rule 2.516 service requirements. When sanctions were sought, Appellee challenged the sufficiency of the first service. Relying on Matte v. Caplan , 140 So.3d 686 (Fla. 4th DCA 2014), and although expressing reservation, the trial court denied fees because the initial e-mail service did not comply with rule 2.516. In Matte , the Fourth District Court of Appeal held that "strict compliance with Florida Rule of Judicial Administration 2.516 regarding e-mail service ... is required before a court may assess attorney's fees pursuant to section 57.105, Florida Statutes." 140 So.3d at 690.

The Second District subsequently expressed conflict with Matte , but not with the notion that strict compliance with rule 2.516 is necessary. Instead, it concluded that rule 2.516 is not applicable at all because a section 57.105 motion is not a document "filed in any court proceeding." Isla Blue Dev., LLC v. Moore , 223 So.3d 1097, 1099 (Fla. 2d DCA 2017). In reaching this conclusion, the Second District followed an earlier decision from that court, which applied the same reasoning to conclude that rule 2.516 does not apply to a proposal for settlement. Boatright v. Philip Morris USA, Inc. , 218 So.3d 962 (Fla. 2d DCA 2017). Indeed, it appears that the Second District correctly concluded that the holding in Boatright governed its disposition in Isla Blue Development, LLC , given that section 57.105 motions and proposals for settlement share a similar characteristic: neither are filed contemporaneously with the initial service. Nonetheless, because we disagree with the Second District's conclusion that "filed in any court proceeding" under rule 2.516(a) means contemporaneously filed, we reject Appellants' claim that rule 2.516 is inapplicable.

The plain language of rule 2.516 leads us to the inescapable conclusion that the timing of the "filing" is of no consequence to the requirement of service under the rule. The rule says "filed," not immediately filed or contemporaneously filed. The motion at issue here was ultimately "filed," albeit much later than when it was initially served. Had it not been filed at some point the document would have been inconsequential and this entire dispute avoided. Our conclusion on this point is buttressed by rule 2.516(d), which governs the timing of the filing of the document . It requires that all documents "must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules." Fla. R. Jud. Admin. 2.516(d) (emphasis supplied). Accordingly, rule 2.516 contemplates two temporal categories of filed documents- those that are filed immediately and those that are filed at some other time. No distinction is made in the rule regarding service of these two distinct categories of documents. In the case of a section 57.105 motion, the general law controls the timing of the filing. The earliest it can be filed is twenty-two days after service. § 57.105(4), Fla. Stat.

Prior to the adoption of rule 2.516 in 2012, rule 1.080 provided the methods of service for "paper[s] filed in the action." Fla. R. Civ. P. 1.080(a) (2011). Motions of this nature-like all other motions-were routinely served in accordance with this rule, bearing a certificate of service as prescribed by the rule, even though they were not "filed" immediately. See Fla. R. Civ. P. 1.080(b), (c), (f) (2011). When ultimately filed, the practice was to serve a notice of filing, not to serve a second copy of the same motion with a supplemental certificate of service. The rule has never required the motion to be served twice. Service and filing are distinct acts. Now, with e-mail service and e-filing, when applicable, the motion is served by e-mail. Then, after the passage of the safe harbor period, it is filed through the e-portal and sent to the other party via e-mail directly through the e-portal system. See Fla. R. Jud. Admin. 2.525(e) (governing e-service of filed documents). Although the motion is now served twice simply because of the design of the e-portal system, there is no indication that the change to e-mail service and e-filing was intended to alter the category of "documents" or "papers" that are to be governed by rule 1.080, which now directs service in conformity with rule 2.516. The "filed in the action" modifier is substantially the same in both generations of rule 1.080. Even though the motion is now served twice, the redundant service at the time of filing cannot cure the defect in the original service without undermining the letter of the statute and the purpose of the safe harbor period.

Apart from our literal interpretation of the rule, we think it is also significant that there is no other rule or statute that governs the procedure for service of documents of the nature we address here. If the Second District is correct, there is a gaping hole in the rules of procedure for "documents" that are served first and filed later. We cannot discern anything in the history of this rule change manifesting an intent by the drafters to alter by exclusion the procedure for service of this hybrid form of document. Nor do we think our high court intended the change to create a void in the rules of procedure for service of this category of document. In our view, like its predecessor, the revised rule 1.080 (which now incorporates rule 2.516's service requirements) is the rule that was intended to govern the service of any document to be filed in any action, regardless of the timing of the filing.

Accordingly, we certify conflict with our sister court in Isla Blue Development, LLC and align ourselves with Wheaton v. Wheaton, 217 So.3d 125 (Fla. 3d DCA) (holding that service requirements of rule 2.516 apply to proposals for settlement even though proposals are not filed contemporaneously with service), review granted , No. SC17-716, 2017 WL 4785810 (Fla. Oct. 24, 2017), for the reasons therein expressed and the additional reasons we express herein.

Although Appellants do not direct our attention to any decision that conflicts with Matte 's holding that strict compliance with rule 2.516 is mandated by the language of that rule, they urge that Matte is incorrect and, to the extent rule 2.516 applies, present the alternative argument that substantial compliance is sufficient. We disagree. As our sister court in Matte reasoned, this rule uses mandatory language. The technical dictates for e-mail service in the rule further evince an intent to mandate strict compliance with all of the identified stringent standards for e-mail service to lessen the potential for an inconspicuous e-mail to get buried in the voluminous inbox of a busy practitioner in the modern, fast-paced practice of law. Besides the practical dilemma for trial courts in applying a somewhat nebulous substantial compliance test, with the inherent result of inconsistency and the potential for proliferation of evidentiary hearings, a relaxed rule of service might undermine e-mail service altogether. Accordingly, for the reasons expressed in Matte and the additional reasons expressed herein, we hold that strict compliance is required. Because Appellants concede that they did not strictly comply with rule 2.516 when they initially served the section 57.105(4) motion, we affirm the trial court's denial of fees on this alternative argument.

In rejecting Appellants' substantial compliance argument, we have not overlooked our decision in Henderson-Bullard v. Lockard, 204 So.3d 568 (Fla. 5th DCA 2016). That case did not hold that strict compliance with rule 2.516 is unnecessary, as Appellants contend. The holding in Lockard was that a lack of strict compliance with the rule does not render a judgment void, an entirely different issue. Our decision there turned on the application of Florida Rule of Civil Procedure 1.540, not the interpretation of rule 2.516.

Nor do we believe that relaxed compliance with rule 2.516 is authorized by Kuhajda v. Borden Dairy Co. of Alabama , 202 So.3d 391 (Fla. 2016). In that case, the rule of procedure required that a proposal for settlement include an element that was not required by the statute addressing the substance of proposals for settlement. Id. at 395. The Florida Supreme Court concluded that the procedural rule should not "trump" the statute or otherwise "be strictly construed to defeat a statute it is designed to implement." Id. at 395-96. Here, by contrast, there is no conflict between the rule and the statute. Section 57.105 does not specify a method of service. If it did, then the statute would control, because rule 2.516(a) expressly defers to statutorily prescribed methods of service.

AFFIRMED; CONFLICT CERTIFIED.

JOLLEY, M.G., Associate Judge, concur.

BERGER, J., dissents with opinion

BERGER, J. dissenting.

I disagree with the majority based on the reasoning set forth in Isla Blue Development, LLC v. Moore, 223 So.3d 1097 (Fla. 2d DCA 2017) (concluding email service requirements of rule 2.516(b)(1) do not apply to section 57.105(4) motions, which provide that the required twenty-one-day safe harbor notice "must be served but may not be filed with or presented to the court") and Boatright v. Philip Morris USA, Inc., 218 So.3d 962 (Fla. 2d DCA 2017) (concluding email service requirements of rule 2.516(b)(1) do not apply to proposals for settlement unless the proposals are attached to motions for acceptance or enforcement under section 768.79(3), Florida Statutes (2013), or Florida Rule of Civil Procedure 1.442(d) and are filed in court). As such, I would reverse the order of the trial court and certify conflict with Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014), the case on which the majority relies.

Accordingly, I dissent.

      Without mentioning Matte , but instead following the logic of the Second District in Boatright , the Fourth District concluded in McCoy v. R.J. Reynolds Tobacco Co. , 229 So.3d 827 (Fla. 4th DCA 2017), that rule 2.516 does not apply to proposals for settlement. Presumably, it concluded that Matte was not in tension with its decision because Matte did not expressly address the applicability of rule 2.516. The McCoy court did, however, express conflict with Wheaton v. Wheaton , 217 So.3d 125 (Fla. 3d DCA 2017), review granted , No. SC17-716, 2017 WL 4785810 (Fla. Oct. 24, 2017), which had, in part, relied upon Matte to conclude that proposals for settlement must be served in accordance with rule 2.516.

      The test for "substantial compliance" is heavily grounded in whether an omission causes prejudice. See, e.g. , Bank of N.Y. Mellon v. Johnson , 185 So.3d 594 (Fla. 5th DCA 2016). In a case like Isla Blue Development, LLC , where actual service was accomplished in the traditional manner, prejudice might not be apparent, yet there was not even an attempt to comply with the e-mail service requirement in that case.

      There is no notable difference between the language in section 57.105(4), which states, "[a] motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected" and section 768.79(3), which provides, "[t]he offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section." Without any explanation or reference to the other, the Fourth District Court of Appeal reached opposite conclusions in Matte, 140 So.3d at 690 (concluding strict compliance with rule 2.516 applies to section 57.105 motions that are served with required 21 day safe harbor notice but not filed with court), and McCoy v. R.J. Reynolds Tobacco Co., 229 So.3d 827, 829 (Fla. 4th DCA 2017) (concluding initial offer of judgment is outside email service requirements of Rule 2.516(a) ).


author: M.K. Thomas, J. Wolf, J., dissenting.

text:
    FLORIDA ASSOCIATION OF HOMES AND SERVICES FOR the AGING, INC. d/b/a LeadingAge Florida, Petitioner, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Department of Elder Affairs, Respondents.
    Nos. 1D17-4024 1D17-4025 1D17-4102
    District Court of Appeal of Florida, First District.
    July 25, 2018 Rehearing Denied August 27, 2018
    Seann M. Frazier and Marc Ito of Parker, Hudson, Rainer & Dobbs, Tallahassee, for Petitioner.
    William H. Roberts of the Agency for Health Care Administration, Tallahassee; and Stefan R. Grow of the Department of Elder Affairs, Tallahassee, for Respondents.
   M.K. Thomas, J.

Petitioners, in these consolidated cases, seek review of Emergency Rules 58AER17-1, Procedures Regarding Emergency Environmental Control for Assisted Living Facilities, and 59AER17-1, Nursing Home Emergency Power Plan. Petitioners contend that the findings of immediate danger, necessity, and procedural fairness on which the rules are based are insufficient under section 120.54(4), Florida Statutes (2017). The petitions for review are denied because we find that the agencies have presented a sufficient factual basis that an immediate danger to the public health, safety, or welfare existed.

We have jurisdiction pursuant to section 120.54(4)(a) 3., Florida Statutes. See also Little v. Coler , 557 So.2d 157, 158 (Fla. 1st DCA 1990). The petitions at issue were previously denied by emergency order, which advised that a substantive opinion would be forthcoming. We write now to provide this Court's reasoning. The petitions are denied because this Court's review is limited to inspection of the four corners of the emergency rules, which sufficiently set forth the immediate danger to the public safety or welfare the rules were designed to address.

Section 120.54(4)(a) provides an agency with the authority to adopt an emergency rule if it "finds that an immediate danger to the public health, safety, or welfare requires emergency action," and such rule is "necessitated by the immediate danger." The agency may adopt an emergency rule by any procedure, which is fair under the circumstances, so long as: (1) the procedure provides a minimum amount of procedural protection; (2) the agency takes only that action necessary to protect the public interest; and (3) the agency publishes, in writing, the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding the procedure used is fair under the circumstances. Id. "In order to utilize emergency rulemaking procedures, rather than employing standard rulemaking, an agency must express reasons at the time of promulgation of the rule for finding a genuine emergency." Fla. Health Care Ass'n v. Agency for Health Care Admin. , 734 So.2d 1052, 1053 (Fla. 1st DCA 1998).

Because the emergency rulemaking procedures do not afford parties either the full panoply of due process protections or the protections of economic impact analyses as required by the regular rulemaking process, the agencies must strictly adhere to the requirements set forth in section 120.54 when adopting emergency rules. See Krajenta v. Div. of Workers' Comp., Dep't of Labor and Emp't Sec. , 376 So.2d 1200, 1202 (Fla. 2d DCA 1979) (noting courts have not been hesitant to strike down emergency rules that were not adopted in strict compliance with the statute). "The courts generally do not concern themselves with the substantive validity of the emergency rule. Instead, the concern is whether the agency followed the requirements of section 120.54(4)(a)." Fla. Democratic Party v. Hood , 884 So.2d 1148, 1151 (Fla. 1st DCA 2004) (internal citation omitted).

As stated above, section 120.54(4)(a) requires the agencies to set forth the reasons, in writing, both for the finding that an emergency exists and to explain why the procedure utilized to adopt the rule is fair. On review, this Court looks only to the reasons set forth by the agency as the basis for adopting the rule to determine its validity. Hood , 884 So.2d at 1153. It is not this Court's responsibility to determine whether other means may have been more appropriate. Id.

Additionally, because of the accelerated emergency rulemaking process, our review occurs prior to any hearings or rulings below. Thus, the record on appeal is limited to the four corners of the emergency rules themselves. See § 120.68(4), Fla. Stat.; Pinacoteca Corp. v. Dep't of Bus. Regulation, Div. of Alcoholic Beverages and Tobacco , 580 So.2d 881, 882 (Fla. 4th DCA 1991) ; Commercial Consultants Corp. v. Dep't of Bus. Regulation, Div. of Fla. Land Sales and Condos. , 363 So.2d 1162, 1164 (Fla. 1st DCA 1978). Therefore, this Court must determine whether the four corners of the emergency rules sufficiently identify particularized facts showing an immediate danger to the public welfare. Denney v. Conner , 462 So.2d 534, 535-36 (Fla. 1st DCA 1985).

Here, the emergency rules at issue, as introduced in the Florida Administrative Register, include almost identical statements setting forth the specific reasons for finding an immediate danger to the public health, safety, or welfare:

The State has experienced extreme shortages of electrical power that have jeopardized, and continue to jeopardize, the health, safety, and welfare of residents in Florida's [regulated facilities]. According to the United States Census Bureau, Florida has the largest percentage of residents age 65 and older in the nation. According to the Centers for Disease Control and Prevention, people age 65 years or older are more prone to heat-related health problems. An incompetent response by a nursing facility to a loss of air conditioning after Hurricane Irma resulted in the tragic loss of eight senior citizens at the Rehabilitation Center at Hollywood Hills. Thousands of frail seniors reside in [regulated facilities] in Florida. Ensuring that [regulated facilities] maintain sufficient resources to provide alternative power sources during emergency situations mitigates the concerns related to the health, safety, and welfare of residents in those [regulated facilities] that experience loss of electrical power. This emergency rule establishes a process for [regulated facilities] to obtain sufficient equipment and resources to ensure that the ambient temperature of the [regulated facilities] will be maintained at 80 degrees or less within the facilities for a minimum of ninety-six (96) hours in the event of the loss of electrical power. Prompt implementation of this rule is necessary to ensure continuity of care and to ensure the health, safety, and welfare of residents of Florida's [regulated facilities].

43 Fla. Admin. Reg. 180 (Sept. 18, 2017).

The rules also include identical statements regarding the reason for concluding the procedure used was fair under the circumstances:

The procedure used to adopt this emergency rule is fair, as the State of Florida is under a declaration of emergency due to the massive destruction caused by Hurricane Irma, and it is essential to ensure as soon as possible that temperatures in [regulated facilities] are maintained at a level providing for the safety of the residents residing therein; provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution; and takes only the action necessary to protect the public interest under the emergency procedure.

43 Fla. Admin. Reg. 180 (Sept. 18, 2017)

Given the limited nature of our review, we conclude the reasons given by the agencies are compliant with the standards set forth in section 120.54(4). The factually explicit emergency rules are persuasive and are sufficient to show an immediate danger to the public health, safety, or welfare. Accordingly, the petitions for review are DENIED .

Jay, J., concurs; Wolf, J., dissents with opinion.

Wolf, J., dissenting.

In light of the tragedy that took 8 lives at the Rehabilitation Center at Hollywood Hills in September 2017, the State of Florida was justified in taking immediate action against the facility that failed to provide for the safety of its residents. See Rehab. Ctr. at Hollywood Hills v. Agency for Health Care Admin. , 250 So.3d 737, 2018 WL 3040883 (Fla. 1st DCA June 20, 2018) (upholding emergency suspension of the facility's license). Remedial action, including requiring installation of generators and fuel to operate the generators for 96 hours in all nursing homes and assisted living facilities in the state, is certainly a reasonable action if done in a manner that is fundamentally fair.

The agency, however, implemented this generator policy through emergency rules requiring compliance within 60 days. In order to guarantee due process for parties effected by the rules, there are very specific statutory requirements concerning the contents of an emergency rule. See § 120.54(4), Fla. Stat. (2017). The emergency rules in this case, however, did not sufficiently demonstrate that the substantial expenditures required within a short period of time were "necessitated by [an] immediate danger" and that the adoption process "was fair under the circumstances," which are two of the required elements for a legitimate emergency rule. See § 120.54(4)(a), Fla. Stat. In light of the short time period, substantial expense, and logistical problems involved with complying, these failures require reversal of the emergency rules.

In fact, these emergency rules were ultimately declared to be invalid based on these deficiencies after a post-adoption administrative hearing. Fla. Ass'n of Homes & Servs. for the Aging, Inc., v. Agency for Health Care Admin. , Case No. 17-005388RE (DOAH Oct. 27, 2017). While this court did not have the benefit of this order at the time of our original decision and it cannot be used as precedent in this case, the findings of that order are instructive. As will be explained later in this opinion, the order declaring the emergency rules to be invalid demonstrates the reason for the court's obligation to carefully scrutinize emergency rules to determine whether there has been a demonstration of fairness in the adoption process.

FACTS

Both emergency rules contain specific requirements for the installation and maintenance of generators. Rule 59AER17-1 pertains to nursing homes and requires:

(1) ....
(a) The acquisition of a sufficient generator or sufficient generators to ensure that current licensees of nursing homes will be equipped to ensure ambient temperatures will be maintained at 80 degrees or less for a period of a minimum of ninety-six (96) hours in the event of the loss of electrical power.
(b) The acquisition and safe maintenance of sufficient fuel to ensure that in an emergency situation the generators can function to maintain ambient temperatures at 80 degrees or less for a period of a minimum of ninety-six (96) hours in the event of the loss of electrical power.
(c) The acquisition of services necessary to install, maintain, and test the equipment and its functions to ensure the safe and sufficient operation of the generator system installed in the nursing home.
(2) Each nursing home shall, within sixty (60) days of the effective date of this rule, have implemented the plan required under this rule.
....
(9) The Agency for Health Care Administration may revoke the nursing home's license for failure to comply with this rule.
(10) In addition to other remedies provided by law, violation of this rule shall result in a fine or sanction of $ 1,000 per day.
....

Emergency Rule 59AER17-1, 43 Fla. Admin. Reg. 180 4004 (Sept. 18, 2017); see also Emergency Rule 58AER17-1, 43 Fla. Admin. Reg. 180 at 4002 (Sept. 18, 2017) (imposing the same requirements on assisted living facilities).

In sum, the rules required acquisition of a generator and acquisition and retention of sufficient fuel to power the generator for 96 hours within 60 days, which would have been November 15, 2017. Failure to comply may result in the revocation of a license or a fine of $1,000 a day. See Emergency Rules 58AER17-1(9)-(10) and 59AER17-1(9)-(10), 43 Fla. Admin. Reg. 180 at 4002-4004 (Sept. 18, 2017).

The agency's statement explaining its reasons for concluding the procedure it used was fair under the circumstances, which is required by section 120.54(4)(a), stated:

The procedure used to adopt this emergency rule is fair, as the State of Florida is under a declaration of emergency due to the massive destruction caused by Hurricane Irma, and it is essential to ensure as soon as possible that temperatures in [regulated facilities] are maintained at a level providing for the safety of the residents residing therein; provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution; and takes only the action necessary to protect the public interest under the emergency procedure.

43 Fla. Admin. Reg. 180 at 4002, 4004 (Sept. 18, 2017).

ANALYSIS

Section 120.54(4)(a) provides an agency with the authority to adopt an emergency rule if it "finds that an immediate danger to the public health, safety, or welfare requires emergency action," and such rule is "necessitated by the immediate danger." The agency may adopt an emergency rule by any procedure that is fair under the circumstances, so long as:

1. The procedure provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution;
2. The agency takes only that action necessary to protect the public interest under the emergency procedure; and
3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances .

§ 120.54(4)(a), Fla. Stat. (emphasis added).

In order to utilize emergency rulemaking, an agency must express reasons at the time of promulgation of the rule for finding a genuine emergency. Fla. Health Care Ass'n. v. Agency for Health Care Admin., 734 So.2d 1052, 1053 (Fla. 1st DCA 1998).

Here, the agencies failed to express the reasons demonstrating that emergency rules were necessary or that the procedure was fair under the circumstances. Significantly, the emergency rules in this case do not address the following:

(1) Number of facilities effected by the proposed rules;
(2) The size or type of generators needed to accommodate the requirements of the rules;
(3) The availability and costs of the generators in question;
(4) The type of facilities necessary to accommodate the amount of fuel required to be stored;
(5) The availability of space and materials to accommodate the fuel storage facility;
(6) The local and state licenses and permits required to install the generators and store the amount of fuel involved;
(7) The need to obtain specialized professional services to comply with the rules;
(8) Whether the agency conducted any hearings or workshops or did any research to judge the feasibility of compliance;
(9) The necessity for compliance within 60 days, a period that is too short to file for any kind of administrative hearing, especially in light of the necessity for the facilities to immediately begin the purchase and installation of equipment as well as beginning the required permitting requirements;
(10) Why compliance by November 15, 2017, was necessary to prevent an ongoing immediate danger since the rules would only be in effect for the last 15 days of hurricane season, which ended on November 30.

Normally when agencies demonstrate on the face of emergency orders that an immediate danger requires immediate action, economic impact statements and feasibility evaluations are not required. Under the unique circumstances of this case, however, where the rule contains little or no justification for the short time period allowed for compliance, the failure to address the obvious complexity and cost of compliance, and the failure of the order to contain any statement that the agency did anything to assure that compliance was feasible, the mere conclusory statement that the procedure was fair under the circumstances was legally insufficient.

The majority correctly states that review of an emergency rule is limited to the face of the emergency order. See Commercial Consultants Corp. v. Dep't of Bus. Regulation, Div. of Fla. Land Sales & Condos. , 363 So.2d 1162, 1163-64 (Fla. 1st DCA 1978). This requirement, however, is one placed on the agency writing the regulation to demonstrate within the rule itself the necessity of issuing an emergency rule without the due process protections of the APA. It is not a check on our ability to review the agency's determination of fairness.

The majority also correctly states that we generally do not concern ourselves with the substance of an emergency rule; rather, our concern is whether the agency followed the requirements of section 120.54(4)(a). Fla. Democratic Party v. Hood , 884 So.2d 1148, 1151 (Fla. 1st DCA 2004). Section 120.54(4)(a) requires the agencies to set forth in writing their reasons for finding that an emergency exists and that the procedure utilized to adopt the rule was fair, and on review, we look only to those reasons to determine the rule's validity. Hood , 884 So.2d at 1153.

The majority even acknowledges that the agencies must strictly adhere to the requirements set forth in section 120.54 when adopting emergency rules because the emergency rulemaking procedures do not afford parties full due process protections or the protections of economic impact analyses. See Krajenta v. Div. of Workers' Comp., Dep't of Labor & Emp't Sec. , 376 So.2d 1200, 1202 (Fla. 2d DCA 1979) (noting courts have frequently struck down emergency rules that were not adopted in strict compliance with the statute).

The four corners requirement is not to protect an agency from judicial scrutiny. We, thus, have struck numerous emergency orders for what they do not contain (deficiencies). See, e.g. , Fla. Health Care Ass'n. , 734 So.2d at 1054 (overturning an emergency order that failed to state facts demonstrating consumers had been misled, and in regard to fairness, failed to consider how the emergency rule would effect "the facility's business, from marketing and standing in the community to staff morale and attitudes toward caregiving").

The rules in this case contain similar deficiencies. In determining whether deficiencies exist, the four corners review rule does not prohibit us from looking at existing statutes, rules, and regulations, nor does it require us to ignore common sense or common knowledge to determine whether the agency has met its strict burden under the statute. For instance, it is common knowledge that hurricane season ends on November 30; the agencies did not justify why compliance by November 15 was necessary to prevent an ongoing immediate danger, since the rules would only be in effect for the last 15 days of hurricane season. They also failed to address whether they considered the fact that compliance would be costly and time consuming based on existing statutes, rules, ordinances, and regulations regarding the installation of generators and fuel tanks.

There was a reason the agencies did not address these factors; they simply did not consider fairness to the regulated parties as demonstrated by findings of fact 45-47 by the administrative law judge who ultimately struck these rules. Fla. Ass'n of Homes & Servs. for the Aging, Inc., v. Agency for Health Care Admin. , Case No. 17-005388RE (DOAH Oct. 27, 2017).

The agencies should have addressed these matters within the emergency rules. If they had, the facilities may not have been required to take costly steps to begin compliance, only to have the rules struck down. It was our job to identify these deficiencies in the rules.

I, therefore, would strike the emergency rules.

      For instance, see Rules 58A-5.036 and 59A-4.1265 of the Florida Administrative Code, which were adopted through the regular rulemaking process.

      In fact, prior to adoption of the rule, the agencies did not consult with the nursing home or assisted living facility industries on whether compliance was economically or practically feasible. See Fla. Ass'n of Homes & Servs. for the Aging, Inc., v. Agency for Health Care Admin. , Case No. 17-005388RE (DOAH Oct. 27, 2017).

      45. AHCA did not consult with the nursing home or ALF industries before adopting Emergency Rule 59AER17-01. DOEA did not consult with the ALF industry prior to adopting Emergency Rule 58AER17-1.
      46. Before adoption of Emergency Rule 59AER17-1, AHCA did not investigate whether the requirements imposed by the Emergency Rules were a workable solution that could address the alleged emergency described in the preamble to the Emergency Rules.
      47. Before adoption of Emergency Rule 58AER17-1, DOEA did not consider whether it was realistic to expect that ALFs could comply with the Emergency Rules' requirements by November 15, 2017. In addition, DOEA had not (a) formulated or procured any estimates regarding the cost of compliance; (b) become aware of the process and timeframe for planning, permitting, procuring, and installing a commercial generator; (c) consulted with any generator suppliers to ascertain whether this increased need for generators could be satisfied by November 15, 2017; (d) consulted with electrical engineers as to whether 60 days was a reasonable amount of time for compliance; and had not (3) consulted fuel tank suppliers to ascertain if the fuel tanks necessary to comply with Emergency Rule 58AER17-1 could be procured by November 15, 2017.


author: Per Curiam.

text:
    Anthony M. GARTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5552
    District Court of Appeal of Florida, First District.
    July 25, 2018 Rehearing Denied September 6, 2018
    Andy Thomas, Public Defender, and David Alan Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In an earlier appeal, we reversed Anthony Gartman's sentences and remanded for resentencing. Gartman now appeals his new sentences, alleging a double jeopardy violation. We affirm.

Gartman was convicted of armed robbery and possession of a firearm by a convicted felon. See Gartman v. State , 197 So.3d 1181 (Fla. 1st DCA 2016). The trial court originally imposed a twelve-year sentence with a ten-year mandatory minimum on Count I (armed robbery) and a six-year sentence with a three-year mandatory minimum on Count II (felon in possession). The court-relying on the then-controlling decision in Walton v. State , 106 So.3d 522 (Fla. 1st DCA 2013), rev'd , 208 So.3d 60 (Fla. 2016) -concluded it had to impose the sentences consecutively and "stack" the mandatory-minimum terms. Accordingly, the court imposed a cumulative sentence of 18 years with a 13-year mandatory minimum.

While Gartman's first appeal was pending, the Florida Supreme Court decided Williams v. State , 186 So.3d 989 (Fla. 2016), which precluded Gartman's consecutive sentences. We therefore reversed Gartman's sentences and remanded for resentencing in light of Williams . Gartman , 197 So.3d at 1182. We did not disturb the convictions. Id.

On remand, the trial court-attempting to achieve a "fair outcome" and effectuate its original sentencing intent-sentenced Gartman to 18 years' prison with a ten-year mandatory-minimum for Count I. The court reimposed the original Count II sentence (six years with a three-year mandatory-minimum) and ordered the Count I and Count II sentences to run concurrently. The practical effect of this decision was that Gartman's cumulative sentence remained essentially unchanged, the only difference being a marginally shorter mandatory-minimum term. Gartman objected, arguing that because he had only challenged the legality of his Count II sentence-not his Count I sentence-the court's authority on remand was limited to the ministerial task of adjusting the previously imposed sentences to run concurrently. Gartman essentially argued that, pursuant to this court's mandate, he was to receive a sentence of twelve years' prison with a ten-year mandatory-minimum and the court had no discretion to impose any other sentence.

In a subsequent rule 3.800(b)(2) motion, Gartman renewed his claim that the court had exceeded its authority under the appellate mandate, and he argued the sentencing order violated the Florida and Federal constitutions' prohibitions against double jeopardy by increasing his Count I sentence, which he contended was not at issue in his first appeal. The court denied the motion, and Gartman appealed.

Florida law has long recognized that when a defendant successfully challenges his sentence on one count, a resentencing trial court cannot change sentences relating to other counts, if the appellate court's mandate did not affect those other counts. See, e.g., Fasenmyer v. State , 457 So.2d 1361, 1362 (Fla. 1984). But in this case, our earlier decision reversed Gartman's sentences on both counts-not just on Count II. Therefore, "the requirement for concurrent sentences [did] not preclude the trial court on remand from structuring [Gartman]'s sentences in a manner that achieves the original sentencing goal." Simmons v. State , 215 So.3d 162, 163 (Fla. 1st DCA 2017) ; see also James v. State , 845 So.2d 238, 240 (Fla. 1st DCA 2003) ("[A] trial court is not barred from accomplishing its original sentencing goals where a defendant successfully seeks to have a sentence overturned.") (footnote omitted) ).

Gartman argues that he intended to challenge only his Count II sentence in the first appeal. But his arguments in that appeal do not control; what matters is what our decision said. And our decision said that we "vacate the sentences [plural] and remand for resentencing." Gartman , 197 So.3d at 1182. Because the sentences (plural) were vacated, the trial court was left to impose new sentences. Had Gartman viewed our earlier opinion's direction as erroneous, he could have challenged that direction through a motion for rehearing. But it was not up to the trial court to suppose we meant something other than what we said.

Accordingly, we conclude that the trial court did not err in resentencing Gartman in a manner consistent with its original sentencing goals.

AFFIRMED .

Jay, Winsor, and M.K. Thomas, JJ., concur.

      Gartman did twice move for rehearing in his previous appeal. His first motion asked the court to reconsider its opinion affirming his convictions and sentences. See Gartman v. State , 1D15-1875, 2016 WL 697400 (Fla. 1st DCA Feb. 22, 2016), superseded , 2016 WL 2610592 (Fla. 1st DCA May 6, 2016). Because the Florida Supreme Court decided Williams in the interim, we granted that motion, withdrew our earlier decision affirming, and issued a written opinion explaining that he was entitled to resentencing in light of Williams . See Gartman v. State , 2016 WL 2610592 (Fla. 1st DCA May 6, 2016), superseded , 197 So.3d 1181 (Fla. 1st DCA 2016). That opinion contained the same language stating that we "vacate the sentences [plural] and remand for resentencing." Gartman then filed a second motion for rehearing asking the court to clarify that neither the mandatory-minimum terms or the underlying sentences could be ordered to run consecutively, which we also granted, resulting in our final published decision. See Gartman , 197 So.3d 1181. But Gartman did not address the portion of our opinion reversing both sentences. The resentencing court correctly noted that our prior mandate "specifically vacated both sentences, with the only instruction being that Count Two could not run consecutively, in any manner, to Count One." (emphasis in original).

      We note that "Gartman has never challenged his increased sentence as being the product of judicial vindictiveness." Reply Br. at 3; see also Wilson v. State , 845 So.2d 142, 148 (Fla. 2003) ("The legal principle referred to as a presumption of judicial vindictiveness has constitutional roots and developed through a line of United States Supreme Court decisions beginning with North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).").


author: Osterhaus, J.

text:
    S.G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4170
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Andy Thomas, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Osterhaus, J.

S.G. appeals a juvenile disposition order finding her delinquent for resisting an officer without violence. She asserts, and we agree, that the State's evidence was insufficient and the trial court should have granted her motion for judgment of dismissal.

I.

S.G. is a minor child who, pursuant to a detention order, was under the care of the Children's Home Society (CHS). She was required to remain with CHS personnel at all times. In August 2017, she spent the workday at a CHS office in Tallahassee before being told in the afternoon that she would be returning to a particular CHS shelter for the night. She did not want to go to that particular shelter, but to another one. She became upset and told the CHS worker she would not go.

In an effort to have S.G. comply with its plan, the CHS worker called law enforcement. A Tallahassee Police Department officer responded and spoke with S.G. He told S.G. that she had to comply with CHS's decision about the shelter. When S.G. continued insisting that she wouldn't go to that shelter, the officer told her that her other option was being taken into custody and to the juvenile assessment center (JAC). S.G. responded that she'd rather go to the JAC. And so, she was taken into custody without protest.

The State proceeded to charge S.G. with resisting an officer without violence. In the course of the subsequent trial, after the State presented its case, S.G. sought a judgment of dismissal, questioning the legal sufficiency of the evidence. But the trial court denied her motion. She was found guilty of the charges and now has appealed.

II.

A motion for judgment of dismissal in juvenile proceedings, like a motion for judgment of acquittal in criminal proceedings, presents the question of whether the evidence is legally sufficient to support the charge. See D.S. v. State , 106 So.3d 991, 993 (Fla. 1st DCA 2013). The granting of a motion for judgment of dismissal is warranted only if "the evidence is insufficient to establish a prima facie case of guilt against the child." Fla. R. Juv. P. 8.110(k). A defendant moving for a judgment of dismissal "admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a [trier of fact] might fairly and reasonably infer from the evidence." D.S. , 106 So.3d at 993 (quoting Lynch v. State , 293 So.2d 44, 45 (Fla. 1974) ). We review orders denying such motions de novo. Id.

To be found guilty of resisting an officer without violence under § 843.02, Florida Statutes (2017), the State must prove that "(1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty." C.E.L. v. State , 24 So.3d 1181, 1185-86 (Fla. 2009). Legal duties include things like serving process, legally detaining a person, or asking for assistance in an emergency situation. See, e.g. , C.W. v. State , 76 So.3d 1093, 1095 (Fla. 3d DCA 2011). Courts in Florida have drawn a distinction in similar cases "between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job." Id. ; Jay v. State , 731 So.2d 774, 775 (Fla. 4th DCA 1999). To prove the crime, the officer must be lawfully executing a "legal duty." § 843.02, Fla. Stat.

In this case, the State asserts that the officer's legal duty arose from § 985.101(1)(d). This statute provides that a child may be taken into custody by law enforcement when the officer has "probable cause to believe that the child is in violation of the conditions of the child's probation, nonsecure detention, postcommitment probation, or conditional release supervision; has absconded from nonresidential commitment; or has escaped from residential commitment."Id. Given the evidence that S.G. was subject to a detention order requiring her to remain with CHS personnel at all times, the officer exercised proper authority under the statute by taking her into custody after S.G. failed to abide by CHS's decision about the shelter and the conditions of her detention.

The State presented no evidence, however, that S.G. resisted the officer's work of taking her into custody under § 985.101(1)(d). Rather, the officer testified that S.G. was "relatively calm ... a little bit animated, ... [but not] aggressive or anything like that." According to the officer, he spoke calmly to her, urging her to return to the shelter with her case manager or another CHS employee. And he "even gave her the option that [he] could drive her there." But she didn't want to go to the particular shelter to which she had been directed. The officer then offered S.G. an alternative, which she accepted. He testified of telling her:

as a 14 year old she can't decide not to do what her case manager wanted her to do. I basically told her, if you don't go to the safe house then our only other option is to take you to the Juvenile Assessment Center for a violation of the terms of the intervention.

At that point, S.G. chose the JAC. And then she complied with being taken into custody. In other words, she did not by her words or conduct resist, obstruct, or oppose the officer's actions in carrying out his legal duty of taking her into custody.

What is more, S.G.'s choice of the JAC option, instead of following the officer's first advice to go with CHS, doesn't support the charges of resisting an officer without violence. To prove the offense, the State was required to show that S.G. "resist[ed], obstruct[ed] or oppose[d]" the officer's execution of a legal duty or process, not merely CHS's shelter plan for the night. § 843.02, Fla. Stat. Her decision not to follow CHS's plan caused her to violate the terms of her detention. But it didn't constitute resisting the officer, who wasn't impeded in his work of taking her into custody under § 985.101(1)(d).

Because on these facts, the State could not prove that S.G. committed the offense of resisting an officer without violence, the motion for judgment of dismissal should have been granted.

III.

Accordingly, we reverse the juvenile disposition order and remand for dismissal.

REVERSED and REMANDED .

Wetherell and Ray, JJ., concur.


author: SUAREZ, J.

text:
    Milton JAY Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1440
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SUAREZ, SALTER, and LOGUE, JJ.
   SUAREZ, J.

Milton Jay, Jr. appeals the denial of his motion for post-conviction relief. Jay was 17 years old when he pled guilty to second-degree murder in 1973. He was sentenced to life with the possibility of parole. Jay contends that his sentence is unconstitutional under the Eighth Amendment and based on the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and the Florida Supreme Court's decision in Atwell v. State, 197 So.3d 1040 (Fla. 2016).

We affirm the trial court's order denying Jay's motion for post-conviction relief, and hold that because Jay was sentenced to life with parole eligibility, was later paroled from prison three separate times, and then violated each parole by committing new crimes as an adult, neither Miller nor Atwell is implicated and Jay is not entitled to resentencing.

Facts

Milton Jay, Jr. was born on November 8th, 1955. In July 1973, when he was 17 years old, he was charged with first-degree murder. On April 23, 1974, Jay pled guilty to second-degree murder and was sentenced to life imprisonment with the possibility of parole.

On July 1, 1980, at the age of twenty-five and after serving approximately six years in prison, Jay was released and placed on parole supervision. In 1982 he violated that parole and was sentenced to additional five-year terms after being convicted of Battery on a Law Enforcement Officer and Possession of Cocaine. His parole was revoked effective June 30, 1982.

On April 29, 1986, Jay was once again released on parole supervision. In 1988, he was taken into custody on a parole violation. He was sentenced to an additional term of 366 days in prison for Robbery with a Firearm and Possession/Use of a Firearm. His parole was again revoked shortly after.

On January 12, 1993, for a third time, Jay was again release from custody on parole supervision. In December of 2001 Jay was again returned to Department custody for a parole violation, this time having been sentenced to a term of seven years for Racketeering and Conspiracy to Traffic in Cocaine. His parole was revoked in February 2002.

In April of 2017, Jay filed his motion for post conviction release to correct illegal sentence, which the trial court denied and which we now review de novo.

Issues and Analysis

Jay asserts that pursuant the United States Supreme Court's decision in Miller, and the Florida Supreme Court's decision in Atwell, he is entitled to resentencing under section 921.1401, Florida Statutes (2016). Miller establishes the threshold which must be met before an Eighth Amendment challenge can be raised in this context: a juvenile offender, sentenced to life without parole. It also requires individualized sentencing that considers mitigating circumstances, and that a juvenile offender must receive some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Cf. Graham v. Florida, 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

Atwell extended the Miller decision to include life sentences with the possibility of parole where the sentence effectively resembles a life without parole sentence. The offender in Atwell was charged with first-degree murder and was sentenced to life with the possibility of parole. Atwell, 197 So.3d at 1050. However, Atwell's effective parole release date under the parole guidelines was almost 140 years in the future. Id. The Florida Supreme Court struck down this sentence, as the sentence did not grant the offender the meaningful opportunity for release and lacked the individualized sentencing consideration required by Miller.

Further, in Rooks v. State, 224 So.3d 272 (Fla. 3d DCA 2017) and Vennisee v. State, 235 So.3d 947 (Fla. 3d DCA 2017), we held that a defendant is not entitled to relief under Miller where the defendant cannot make a threshold showing that they effectively received a sentence of life without parole or a sentence that failed to afford them a meaningful opportunity to obtain early release. As such, when a defendant, such as Jay, has been released on parole several times and had that parole revoked for new law violations committed as an adult, they are not entitled to relief.

Applying these holdings to Jay's case, it is clear that he cannot make the threshold showing required under Rooks and Vennisee. He was not sentenced to life imprisonment without parole and was not denied a meaningful opportunity for release. He was paroled three times during his life sentence, and each time he had his parole revoked for committing new crimes. Therefore he is not entitled to resentencing.

Conclusion

We hold that Jay is not entitled to resentencing under Miller or Atwell. Jay committed a homicide while he was a juvenile, and was sentenced in 1973 to life with the possibility of parole. He was paroled three times-first in 1980, then 1986, and finally in 1993-and each time violated that parole by committing additional crimes. We therefore hold that Jay was provided with a meaningful opportunity for release, was released, and violated that release by committing new crimes as an adult, and therefore Miller and Atwell are not implicated, Jay's sentence is not illegal, and he is not entitled to resentencing.

Affirmed.

      Jay requested a citation to Rooks in our opinion, as the appellant in that case petitioned the Florida Supreme Court to review our decision. If the Court had granted the petition and found in favor of the defense, it would have allowed Jay to seek review in the Florida Supreme Court as well. However the Court denied review of that case, so any citation to Rooks would be irrelevant. The State suggested including a citation to Vennisee, as the appellant in that case also petitioned the Florida Supreme Court to review our decision. This suggestion is also moot, as the Court has denied review of that case as well.


author: NORTHCUTT, Judge.

text:
    SUPER PRODUCTS, LLC, a Delaware Company, Petitioner, v. INTRACOASTAL ENVIRONMENTAL, LLC, a Florida limited liability company, Respondent.
    Case No. 2D17-3769
    District Court of Appeal of Florida, Second District.
    Opinion filed July 25, 2018.
    Arthur S. Weitzner of Arthur S. Weitzner, P.A., Sarasota, for Petitioner.
    Adam Hersh of Hunter Business Law Tampa, for Respondent.
   NORTHCUTT, Judge.

Super Products, LLC, a Delaware company, seeks certiorari review of an order indefinitely staying proceedings in its pending breach of contract action against Intracoastal Environmental, LLC. We grant the petition and quash the order.

Super Products filed a complaint seeking damages for Intracoastal's alleged failure to pay under an equipment rental agreement. Pursuant to Intracoastal's motion, the circuit court dismissed the complaint without prejudice because Super Products had failed to comply with section 605.0904(1), Florida Statutes (2014-17). That statute provides that a foreign limited liability company doing business in Florida "may not maintain an action or proceeding in this state unless it has a certificate of authority to transact business in this state." Super Prods., LLC v. Intracoastal Envtl., LLC, 210 So.3d 240, 241 (Fla. 2d DCA 2017) (quoting § 605.0904, Fla. Stat. (2014) ). Section 605.0904(3) states:

A court may stay a proceeding commenced by a foreign limited liability company or its successor or assignee until it determines whether the foreign limited liability company or its successor requires a certificate of authority. If it so determines, the court may further stay the proceeding until the foreign limited liability company or its successor obtains the certificate.

Because a certificate of authority is a condition only to maintaining a lawsuit, not to filing one, and because the remedy of dismissal is not provided for in the statute, this court reversed the dismissal and instructed the circuit court to reconsider whether a stay was appropriate. 210 So.3d at 242.

Following our mandate, Super Products obtained a certificate of authority and filed a copy of it with the circuit court. Thereafter, on Intracoastal's motion, the court entered an order finding that Super Products had fraudulently obtained the certificate because of an alleged misstatement on its application regarding the date upon which it began doing business in Florida. The court declared that the certificate was invalid. Further, "[s]ince Super Products has failed to obtain the proper Certificate of Authority[,] the proceedings before this Court are stayed pursuant to Fla. Stat. § 605.0904(3) until Super Products, obtains an appropriate certificate of authority." Super Products filed this timely petition for a writ of certiorari.

Certiorari is available to review a nonfinal order that causes a material injury that cannot be corrected on appeal. This is otherwise described as irreparable harm. Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So.3d 344, 351 (Fla. 2012). Orders staying proceedings are reviewable by certiorari. See Paley v. Cocoa Masonry, Inc., 354 So.2d 945, 946 (Fla. 2d DCA 1978) ; Stein v. Bayfront Med. Ctr., Inc., 287 So.2d 401, 401 (Fla. 2d DCA 1973) ; State v. Antonucci, 590 So.2d 998, 999-1000 (Fla. 5th DCA 1991). In the present case, the stay is indefinite; without certiorari review, Super Products would be stuck in limbo with no way to pursue its lawsuit or to challenge the circuit court's ruling. The stay causes irreparable harm for that reason.

A petitioner for certiorari must also demonstrate that the circuit court's ruling departs from the essential requirements of law. Citizens Prop. Ins., 104 So.3d at 351. This requires a determination that the lower court's order departed from "clearly established law," which may derive from a variety of legal sources, including statutes. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003). That is what happened here.

The process for obtaining a certificate of authority from the Department of State is described in section 605.0902, Florida Statutes (2014-17). The effect of the certificate is set forth in section 605.0903, Florida Statutes (2015-17), as follows:

(1) Unless the department determines that an application for a certificate of authority of a foreign limited liability company to transact business in this state does not comply with the filing requirements of this chapter, the department shall, upon payment of all filing fees, authorize the foreign limited liability company to transact business in this state and file the application for a certificate of authority.
(2) The filing by the department of an application for a certificate of authority authorizes the foreign limited liability company that files the application to transact business in this state, subject, however, to the right of the department to suspend or revoke the certificate of authority as provided in this chapter.

(Emphasis added.) Thus, issuing a certificate of authority to do business in Florida is a purely executive function. Only the Department is empowered to determine whether an application for a certificate complies with the requirements, and only the Department may suspend or revoke a certificate. Super Products having obtained and filed a certificate of authority issued by the Department, the circuit court was not authorized to declare the certificate invalid and stay the proceedings on that account.

The order under review exceeded the court's authority. As such, it departed from the essential requirements of law, resulting in a material injury that is not remediable on direct appeal. Accordingly, we grant the petition and quash the order.

Petition granted; order quashed.

MORRIS and LUCAS, JJ., Concur.


text:
    Debbie P. NAILS, Appellant, v. WALMART, Appellee.
    No. 3D17-804
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Debbie P. Nails, in proper person.
    Liebler, Gonzalez & Portuondo, and Elizabeth A. Henriques and Tricia J. Duthiers, for appellee.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See § 95.11(3)(o ), Fla. Stat. (2016) (providing four-year limitations period in action for assault, battery, false arrest, malicious prosecution, or false imprisonment); § 95.11(4)(g), Fla. Stat. (2016) (providing two-year limitations period in action for libel or slander); Century 21 Admiral's Port, Inc. v. Walker, 471 So.2d 544 (Fla. 3d DCA 1985) (failure to seek leave to amend prior to court's order of dismissal with prejudice, or to seek rehearing requesting leave to amend, precludes consideration of the issue for the first time on appeal); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1980) (burden is generally on appellant to provide sufficient record to demonstrate reversible error).


text:
    Dedrick BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1070
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Dedrick Brown, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS, and LOGUE, JJ.
   PER CURIAM.

In this appeal of a summary denial of a motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, we affirm the trial court's finding that the defendant's claims are either procedurally barred or otherwise not cognizable on a 3.850 motion, except for the defendant's claim D.

The defendant's claim D alleged in very general terms a series of actions by his counsel that the movant contends establishes ineffective assistance. The trial court correctly noted that these "generalized allegations" were legally insufficient to state a claim of ineffective assistance and that the defendant further failed to allege how counsel's performance caused the requisite "prejudice." Having found this claim insufficient on its face, however, the trial court was bound pursuant to rule 3.850(f)(2) and Spera v. State, 971 So.2d 754 (Fla. 2007) to permit the movant an opportunity to amend within 60 days to state a legally sufficient claim. See, e.g., Charles v. State, 193 So.3d 46 (Fla. 3d DCA 2016) ; Williams v. State, 175 So.3d 349 (Fla. 3d DCA 2015) ; and Marckson v. State, 151 So.3d 44 (Fla. 3d DCA 2014).

Affirmed in part and reversed in part.


text:
    Leroy MARTIN Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2380
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Leroy Martin Jr., in proper person.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LINDSEY, JJ.
   PER CURIAM.

Leroy Martin appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On July 10, 2014, the State charged Martin by Amended Information with one count of Sale of Cocaine within 1,000 feet of a Public Park or a Publicly Owned Recreational Facility and one count of Unlawful Use of a Two-Way Communication Device. Martin proceeded to trial and was found guilty as charged. This Court subsequently affirmed Martin's convictions and sentences. Martin v. State, 208 So.3d 714 (Fla. 3d DCA 2016).

On April 5, 2017, Martin filed a Rule 3.850 motion for post-conviction relief in the trial court asserting five separate claims of ineffective assistance of trial counsel. On June 29, 2017, the State filed a response to Martin's post-conviction motion but did not attach any exhibits refuting Martin's claims. The trial court issued an order denying Martin's post-conviction motion on October 15, 2017 and attached a map depicting the location of the offense as well as an excerpt from the trial transcript concerning law enforcement testimony on the location of the crime.

Martin filed a timely Notice of Appeal and this Court ordered the State to respond. The State conceded in its response that the trial court erred by summarily denying Martin's Rule 3.850 motion because the two exhibits attached to the denial order do not conclusively refute Martin's ineffective assistance of counsel claims. As such, the State requests that this Court reverse and remand with instructions for the trial court to either attach portions of the record that conclusively refute Martin's claims or hold an evidentiary hearing.

Based on the record before us, we reverse and remand for the trial court to either grant an evidentiary hearing or attach portions of the record that conclusively refute Martin's claims for ineffective assistance of trial counsel. See Debose v. State, 237 So.3d 1059, 1060 (Fla. 3d DCA 2017) (reversing portion of the trial court's order denying defendant's ineffective assistance of trial counsel claim and remanding for the trial court to "either grant an evidentiary hearing or to attach the necessary portions of the record that conclusively show that [defendant] is not entitled to relief.").

Reversed and remanded.