author: SALTER, J.

text:
    Matt PAPUNEN, Appellant, v. BAY NATIONAL TITLE COMPANY, Appellee.
    No. 3D17-938
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019 Rehearing Denied March 19, 2019
    The Orlofsky Law Firm, P.L., and Alexander S. Orlofsky, for appellant.
    Boyd Richards Parker & Colonnelli, P.L., and W. Todd Boyd and Gissell Jorge, for appellee.
    Before SALTER, LINDSEY and HENDON, JJ.
   SALTER, J.

Matt Papunen ("Buyer") appeals a final order dismissing with prejudice his complaint against Bay National Title Company ("Bay National"). The Buyer alleged that although Bay National confirmed at closing Seller's title and the absence of post-foreclosure appellate or other legal challenges to the Seller's title, Bay National's title examination negligently missed a post-judgment, duly-docketed motion to vacate the foreclosure judgment and challenge the Seller's title.

We reverse the order of dismissal with prejudice, and remand for further proceedings.

Facts and Proceedings Below

The case below arises from the sale of a residence by a lender following the foreclosure of a mortgage on the residence and the issuance of a certificate of title to the lender. The lender, through its attorney-in-fact JPMorgan Chase Bank, National Association ("Seller"), then placed the property for sale.

The Buyer and Seller entered into an "Indemnity and Hold Harmless Release" (the "Release") signed and notarized by Buyer on June 19, 2015. The form identified as "Seller Releasees" the Seller, Bay National, their respective "parent and subsidiary and affiliate companies," and the "present and former officers, directors, agents, employees, stockholders, owners, members, managers, attorneys, predecessors, successors, assigns, insurers and servicing agents of each such entity."

The recitals, disclosures, and terms of the Release identified various risks: "the Property may have Occupants or Claimants occupying the Property," and there might be agreements or rent concessions relating to any such Occupant or Claimant. The Release also addresses the possibility of rent control violations, unrecorded prepaid rent, or security deposits with tenants that might not be transferred as part of the sale. Finally, the Release addresses the condition of the property being sold, with the Seller disclaiming liability for damages that might be caused by repairs or alterations to the property by an occupant prior to the closing.

Other provisions of the Release pertain to post-closing claims of the former owner:

WHEREAS ... The delivery of possession shall be subject to the rights of any Occupants or Claimants and any right of confirmation, redemption or similar legal right of the former owner, its successors and assigns. Seller shall not be required to bring any action to evict, relocate, dispossess or determine the rights of any Occupant or Claimant before, on or after closing. The existence of any Occupants or Claimants, or claims by such persons, shall not give right to any rights to terminate the Agreement by Buyer or to give Buyer the right to raise any objection to Seller's title.
....
In consideration of Seller's agreement to proceed with the closing of the sale of the Property to Buyer, and Closing Agent's agreement to conduct the Closing of the sale of the Property notwithstanding the aforementioned items, Buyer hereby agrees as follows:
....
2. Buyer agrees to release, indemnify, defend, and forever hold the Seller Releasees harmless in all respects from and against any manner of action, cause of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bill, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, interest, penalties, damages, judgments, executions, claims and demands whatsoever, in law or in equity, arising out of, in connection with or relating to the occupancy of the property or the sale of the Property to Buyer.
....
4. It is the intent of Buyer, and Seller that this Release survive any closing of the sale of the Property to Buyer.

A week after the Release was executed and delivered, the Buyer and the Seller entered into a standard form of " 'As Is' Residential Contract for Sale and Purchase" (the "Contract"). Although Bay National was a designated "Seller Releasee" in the Release executed by the Seller and Buyer a week earlier, the Contract specified that the Seller would deliver and pay for an owner's title policy to be issued to the Buyer "insuring Buyer's marketable title to the Real Property," subject only to six types of exceptions typical in such transactions, including land use matters, plat restrictions, mineral rights of record, unplatted public utility easements of record, taxes for the year of closing and subsequent years, and assumed and purchase money mortgages. The Contract provisions did not include an exception for certain docketed filings in the foreclosure case: a notice of appeal, or a motion to vacate or set aside the final judgment and foreclosure sale through which the Seller had obtained title.

The Seller and Buyer closed the sale transaction on July 24, 2015. In conformance with the terms of the Contract, the Seller and Bay National delivered a markup of an earlier title insurance commitment issued and signed by Bay National. Bay National marked up Schedule B, Section 1, of the commitment to confirm that requirement 10 had been satisfied:

Issuing agent must request from the [insurer, Fidelity National Title Insurance Company] (or perform themselves) an update and review of the foreclosure docket for the proceeding [identifying the foreclosure case in which the Seller obtained title] between the effective date of this report and one (1) business day prior to closing, to verify that no appeal or motion to vacate or set aside the proceedings has been filed.

In its complaint, the Buyer alleged that Bay National negligently failed to perform the specified "update and review of the foreclosure docket," and failed to discover a motion to vacate the final judgment of foreclosure. The Buyer alleged that he incurred substantial damages over a protracted period as he prosecuted legal proceedings to overcome the motion to vacate.

Bay National moved to dismiss on the basis of the broad language in the Release. The Buyer contended that the insurance commitment delivered at closing pursuant to the terms of the Contract (and over a month after the Release was executed) imposed a separate duty on the part of Bay National that was outside the scope of the general exculpatory provisions in the Release. The Buyer argued that Bay National's argument rendered the Contract provisions regarding title, and the title commitment itself, entirely nugatory-a result that could not have been intended.

The trial court heard argument on the motion to dismiss and the Buyer's opposition to the motion, and granted the motion to dismiss, declining to allow the Buyer a right to amend. This appeal followed.

Analysis

We review an order granting a motion to dismiss with prejudice de novo. Williams Island Ventures, LLC v. de la Mora, 246 So.3d 471, 475 (Fla. 3d DCA 2018). "In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party." Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014).

The sweeping exculpatory language within the earlier release is facially inconsistent with the more specific title insurance obligations of the Seller in the later Contract and marked-up title commitment delivered to the Buyer in accordance with the Contract. "[I]t is a general principle of contract interpretation that a specific provision dealing with a particular subject will control over a different provision dealing only generally with that same subject." Kel Homes, LLC v. Burris, 933 So.2d 699, 703 (Fla. 2d DCA 2006) (quoted with approval in Idearc Media Corp. v. M.R. Friedman and G.A. Friedman, P.A., 985 So.2d 1159, 1161 (Fla. 3d DCA 2008) ).

The Buyer is correct that Bay National's and the trial court's interpretation of the documents simply nullifies the contract provisions requiring the Seller to provide title insurance and to complete a review of the foreclosure docket. The Seller's Release document is plainly written for the protection of the Seller, while Bay National's title duties are just as plainly written for the protection of the Buyer. The reconciliation of these provisions leads ineluctably to the conclusion that the motion to dismiss should not have been granted with prejudice.

That said, Bay National has also cited provisions of the title commitment and various federal cases holding that the Buyer's claims must be confined exclusively to contract rather than tort. We decline to consider or rule upon that argument, but the point underscores that the right to amendment should not have been prohibited so quickly (the Seller had never amended its original complaint when it was precluded from filing even a first amended complaint).

Leave of court to amend "shall be given freely when justice so requires," Florida Rule of Civil Procedure 1.190(a), and "any doubts should be resolved in favor of the amendment." Overnight Success Const., Inc. v. Pavarini Const. Co., Inc., 955 So.2d 658, 659 (Fla. 3d DCA 2007).

The final order of dismissal with prejudice is reversed, and the action is remanded to the circuit court for further proceedings.

      Inexplicably, the Buyer's notice of appeal from the final order identifies the title insurer, Fidelity National Title Insurance Company, as the defendant/appellee, rather than the title agent, Bay National Title Company. Bay National Title Company was the sole defendant below, the party identified in the final order itself, and the "authorized signatory" shown on the title insurance forms at issue. The appellee's brief identifies the defendant/appellee variously as "Bay National Title Insurance Company" and "Bay National Title Company."

      The Release, Contract, title commitment, and marked-up commitment delivered to the Buyer at closing were attachments to the Complaint, and were thus within the "four corners rule." Jester v. Pawley, 245 So.3d 859, 860 (Fla. 3d DCA 2018).

      These authorities were not cited to the trial court in Bay National's motion to dismiss.


source: Caselaw Access Project

author: MILLER, J.

license: Public Domain

text:
    Isabel DEL PINO ALLEN, Appellant, v. Juan SANTELISES, Appellee.
    No. 3D18-1896
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019 Rehearing Denied March 22, 2019
    Isabel del Pino Allen, in proper person.
    Allen, Norton & Blue, P.A. and Luke Savage, for appellee.
    Before FERNANDEZ, SCALES, and MILLER, JJ.
   MILLER, J.

Appellant, Isabel del Pino Allen, appeals the trial court's order granting final summary judgment in favor of appellee, Juan Santelises, based upon the application of absolute immunity. For the reasons that follow, we conclude that the statements forming the basis for Allen's action are cloaked in absolute immunity, thus we affirm.

FACTUAL BACKGROUND

In 2013, Allen, then a faculty member at Miami-Dade College ("MDC"), collaborated with four other MDC professors, including Santelises, to write a book entitled "The Freedom to Communicate." Early the following year, Allen alleged she discovered plagiarism within the book and the matter was reported to MDC's Office of Academic and Student Affairs. MDC placed Allen and her co-authors on notice that it intended to investigate the plagiarism accusations. In August of the same year, MDC concluded its investigation and determined the allegations were unsubstantiated.

Shortly thereafter, two of Allen's co-authors, Adam Vellone and Cherie Cannon, filed charges of discrimination and harassment against Allen, pursuant to MDC's administrative grievance process, with MDC's Office of Equal Opportunity Programs/ADA, Title IX Director, Joy Ruff, Ph.D. In the charges, Vellone and Cannon alleged that Allen directed hostile, discriminatory, and retaliatory acts at several MDC professors, including themselves and the other co-authors of "The Freedom to Communicate."

Ruff initiated an administrative investigation of the complaints, in accord with the grievance procedure delineated in MDC's Procedure Manual. During the investigation, Santelises was identified by the complainants as a material witness. Ruff interviewed Santelises regarding his observations. At the conclusion of her investigation, Ruff determined the charges of discrimination and retaliation were substantiated and Allen was eventually terminated from her employment with MDC. Following the termination, Allen filed the instant suit, alleging the interview responses provided by Santelises in the grievance investigation were slanderous.

Santelises filed a motion for final summary judgment, alleging three bases for the application of absolute immunity: (1) the statements were made during an administrative investigation; (2) Santelises was required to participate in the investigation by MDC; and (3) the statements made were in the course and scope of Santelises's duties as a professor at MDC. The trial court granted final summary judgment. This timely appeal followed.

LEGAL ANALYSIS

"A trial court's entry of a final summary judgment is reviewed de novo ." Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 733 (Fla. 4th DCA 2012). "Summary judgment is proper only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law." Yardum v. Scalese, 799 So.2d 382, 383 (Fla. 4th DCA 2001), citing Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). "Where no genuine issue of material fact is shown to exist, the only question for the appellate court is whether the summary judgment was properly granted under the law." Id., citing Wesley Constr. Co. v. Lane, 323 So.2d 649, 650 (Fla. 3d DCA 1975).

"Whether allegedly defamatory statements are covered under absolute privilege is a question of law to be decided by the court." Ball v. D'Lites Enters., 65 So.3d 637, 638 (Fla. 4th DCA 2011), citing Resha v. Tucker, 670 So.2d 56, 59 (Fla. 1996) and Cassell v. India, 964 So.2d 190, 193 (Fla. 4th DCA 2007).

"Public officials who make statements within the scope of their duties are absolutely immune from suit for defamation." Stephens v. Geoghegan, 702 So.2d 517, 522 (Fla. 2d DCA 1997). The Florida Supreme Court explicated upon this protection in Hauser v. Urchisin, 231 So.2d 6, 8 (Fla. 1970), finding:

The public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged. Under our democratic system the stewardship of public officials is daily observed by the public. It is necessary that free and open explanations of their actions be made.

"Originally, the protection was afforded only to high-ranking officials, but over time, courts began focusing less on the rank of the official and more on the nature of the employee's duties."

Cameron v. Jastremski, 246 So.3d 385, 388 (Fla. 4th DCA 2018) (quoting Boggess v. Sch. Bd. of Sarasota Cty., No. 8:06-CV-2245-T-27EAJ, at *5 (M.D. Fla. Feb. 29, 2008) ), see also Skoblow v. Ameri-Manage, Inc., 483 So.2d 809, 810 (Fla. 3d DCA 1986) ("[T]he emphasis has shifted to the 'nature of the officer's duties rather than the level of his rank.' ") (citation omitted). Thus, "an absolute privilege protects the statements of all public officials, regardless of the branch of government or the level of the official," if the statements are made in conjunction with official duties. Cameron, 246 So.3d at 388, citing Cassell, 964 So.2d at 194 (emphasis supplied); see also City of Miami v. Wardlow, 403 So.2d 414 (Fla. 1981) (holding that the controlling factor in deciding whether a public employee enjoys absolute immunity is whether the communication was made within the scope of the employee's duties); Cripe v. Bd. of Regents, 358 So.2d 244, 245 (Fla. 1st DCA 1978) (stating that a state university employee enjoyed absolute immunity in a defamation proceeding founded upon statements set forth in evaluations, as to hold otherwise would allow "[a]n employee who was dissatisfied with his rating [to] sue and the already overburdened taxpayers [to] become burdened again with additional governmental expenses to pay.").

Here, Santelises's employer, Miami-Dade College is a public institution organized under section 1004.65, Florida Statutes (2018). Thus, as a member of the faculty, Santelises enjoys the status of a public official. See Cameron, 246 So.3d 385 (classifying a professor at Florida Atlantic University as a public official, but reversing the dismissal of a defamation complaint in the absence of allegations that the comments giving rise to the action were made in the scope of employment); see also Fla. State Univ. Bd. of Trs. v. Monk, 68 So.3d 316, 319-20 (Fla. 1st DCA 2011) ("Inasmuch as producing and publishing the report were part of its official duties, FSU, an executive branch entity... enjoys absolute immunity from a defamation suit seeking damages for those acts.").

Thus, we turn our analysis to whether the statements giving rise to the instant action were "within the orbit of [Santelises's] responsibilities as a public [college] instructor." Cameron, 246 So.3d at 389. MDC's Manual of Procedure sets forth a Discrimination and Harassment Grievance Process. The Manual provides: "ALL COLLEGE EMPLOYEES ARE EXPECTED TO REPORT ANY HARASSMENT OR DISCRIMINATION THAT THEY OBSERVE, HAVE HEARD ABOUT, OR BELIEVE MAY BE OCCURRING. " The Manual sets OEOP/ADA as the "initial point of contact" for all complaints relating to employees. The Manual also delineates a "Formal Complaint Process." The Formal Complaint Process provides, in relevant part:

As a condition of employment, employees of the College are required to cooperate with these types of investigations by providing truthful and complete information . It is the College's expectation that the employee will answer all questions and provide any knowledge he or she possesses that may be helpful to the inquiry. Employees who refuse to answer questions related to their employment, are subject to discipline, up to and including termination of employment.

(Emphasis supplied). The directive further requires compliance with collective bargaining agreement policies and procedures.

Article 4, Section 3 of the Collective Bargaining Agreement between the United Faculty of Miami-Dade College, Local 4253, FEA, AFT, AFL-CIO and the District Board of Trustees of Miami-Dade College (the "CBA") states:

The College reserves the right to conduct an investigation into any allegation of misconduct or any alleged violation of this Agreement. All bargaining unit members are required to cooperate with the College's investigation.

(Emphasis supplied).

Here, the unambiguous terms of both the Manual and CBA demanded the cooperation of Santelises, a material witness to the allegations of harassment, as a condition of his employment. Under these circumstances, Santelises's cooperation could not be deemed voluntary, thus, it is axiomatic that the statements were made within the scope of his employment duties. See Forman v. Murphy, 501 So.2d 640 (Fla. 4th DCA 1986) (holding that a police officer was entitled to absolute immunity for statements made pursuant to a duty imposed by the police department's manual).

As the statements forming the basis for slander in the instant action are utterances by a public official, compelled by his employer under the terms of his employment and during an administrative grievance process, we conclude absolute immunity precludes civil liability. Accordingly, we affirm the final order granting summary judgment.

Affirmed.


author: PER CURIAM.

text:
    Rochelle DRIESSEN, etc., Appellant, v. EMILY C. MOISES DAY TRAINING CENTER, et al., Appellees.
    No. 3D17-2305
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019 Rehearing Denied March 20, 2019
    Rochelle Driessen, in proper person.
    Gaebe Mullen Antonelli & DiMatteo and Elaine D. Walter and Neil W. Blackmon, Coral Gables, for appellee Emily C. Moises Day Training Center.
    Before SALTER, LOGUE and LINDSEY, JJ.
   PER CURIAM.

Affirmed. Evans v. Shapiro, 229 So.3d 414 (Fla. 3d DCA 2017).


text:
    Jennifer PEREZ, Appellant, v. Paul Grant DWYER, Appellee.
    No. 3D18-1931
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019 Rehearing Denied March 20, 2019
    Jennifer Perez, in proper person.
    Filler Rodriguez, LLP, and Catherine M. Rodriguez, for appellee.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   PER CURIAM.

Jennifer Perez (the mother) appeals from an order suspending her timesharing with the parties' child. We review the trial court's order for an abuse of discretion. Ryan v. Ryan, 257 So.3d 1168, 1169 (Fla. 3d DCA 2018) (noting: "The trial court's limitations on the Former Wife's visitation are reviewed for an abuse of discretion. The court has discretion to restrict or deny visitation to protect the welfare of the child") (citation omitted).

The record on appeal is insufficient to permit meaningful appellate review, as Perez has failed to provide this court with a transcript of the hearing conducted by the trial court. Under these circumstances, and given that there are no errors on the face of the order on appeal, we are compelled to affirm. As the Florida Supreme Court held in Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) :

In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.... When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

See also Bisnauth v. Leelum, 233 So.3d 1275 (Fla. 3d DCA 2017) ; Rodriguez v. Lorenzo, 215 So.3d 631 (Fla. 3d DCA 2017) ; Hill v. Calderin, 47 So.3d 852, 854 (Fla. 3d DCA 2010).

Affirmed.


text:
    Roberto DUGGANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2512
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    Roberto Duggans, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before SALTER, LINDSEY and MILLER, JJ.
   MILLER, J.

Appellant seeks review of the trial court's denial of his "Motion to Correct an Illegal Sentence," filed pursuant to Florida Rule of Criminal Procedure 3.850. On November 9, 2018, in accordance with the mailbox rule, appellant filed his relevant notice of appeal. The notice of appeal incorrectly states the lower court rendered the order appealed on October 10, 2018. Applying Florida Rule of Appellate Procedure 9.020(h), we determine the lower court rendered the order under appeal on September 28, 2018, as the trial court's signed, written order denying the motion to correct illegal sentence was filed with the lower court clerk on that date. We reach this conclusion based on the lower court clerk's filing stamp, dated September 28, 2018.

Because the notice of appeal was filed more than 30 days after rendition of the order, this court is without appellate jurisdiction. See Fla. R. App. P. 9.110(b) ; see also Fla. R. Crim. P. 3.850(k). Thus, we dismiss this appeal for lack of jurisdiction, without prejudice for the filing of a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See, e.g., Watkins v. State, 217 So.3d 1135 (Fla. 3d DCA 2017).

Dismissed.

      The mailbox rule provides a motion, petition, or notice of appeal is deemed "filed" when an inmate places it in the hands of prison officials. Haag v. State, 591 So.2d 614, 617 (Fla. 1992). As articulated in Thompson v. State, 761 So.2d 324, 326 (Fla. 2000), we presume timeliness, of the filing of a legal document submitted by an inmate, according to the date contained in the certificate of service, if any, showing that the pleading was placed in the hands of prison or jail officials for mailing on that date, provided said date is on or before the filing deadline.

      Fla. R. App. P. 9.020(h) - Rendition (of an Order). An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. See In re Amendments to the Fla. R. App P., 256 So.3d 1218 (Fla. 2018) (adopting amendments to the Florida Rules of Appellate Procedure, relettering subdivision (i) of rule 9.020 to (h) ); see also Guy v. Plaza Home Mortg., Inc., 260 So. 3d 280 (Fla. 4th DCA 2018).


author: HENDON, J.

text:
    KENDALL HEALTHCARE GROUP, LTD., d/b/a Kendall Regional Medical Center, et al., Appellants, v. Rafael MADRIGAL, M.D., et al., Appellees.
    No. 3D18-132
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    White & Case LLP, and Raoul G. Cantero, David P. Draigh, and Ryan A. Ulloa, Miami; Taché Bronis Christianson and Descalzo P.A., and Walter J. Taché and Marissel Descalzo, for appellants.
    Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten, Miami; Marcus Neiman & Rashbaum, LLP, and Michael A. Pineiro and Daniel Lawrence Rashbaum, for appellees.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   HENDON, J.

The respondents below, Kendall Healthcare Group, Ltd. d/b/a Kendall Regional Medical Center, et al. (collectively, "Kendall Regional"), appeal from a final judgment entered under section 620.2122, Florida Statutes, of the Florida Revised Uniform Limited Partnership Act ("the Act"), awarding each petitioner, Dr. Rafael Madrigal, Dr. Juan Suarez, and Dr. Jorge Suarez Melendez (collectively, "the physicians"), $ 3.34 million as the "fair value" for each limited partnership interest ("LP interest(s)") in Kendall Regional plus prejudgment interest, compounded quarterly. For the reasons that follow, we affirm the final judgment except for the calculation of the prejudgment interest and remand for a recalculation consistent with this opinion.

I. Facts and Procedural History

In 1991, each of the three physicians purchased one LP interest in Kendall Regional. Following a squeeze-out merger at the end of 2014, the physicians were informed that each LP interest had been converted into the right to receive $ 1.1 million and each physician had the option to either accept the $ 1.1 million offer or exercise his right to have the "fair value" of his LP interest determined by a court. The physicians declined the offers and demanded a greater amount as the estimated fair value for each LP interest. After the physicians' demands were rejected, they filed a petition for appraisal against Kendall Regional to determine the "fair value" of their LP interests under section 620.2122 of the Act.

At the non-jury trial on the physicians' petition for appraisal, both sides presented expert testimony as to the fair value of each LP interest. The experts utilized the same valuation method, which required each expert to take into account numerous factors, including the "cost of capital" and whether a "company-specific risk premium" ("CSRP") should be added to the discount rate.

The record before this Court indicates that the trial judge actively participated during the bench trial by asking several questions relating to the assessment of the fair value of each LP interest. At the conclusion of the trial, the trial judge made one specific finding as to the equity debt capital. Further, the trial judge instructed the parties to submit proposed orders, and in doing so, made statements indicating that he had not made a final determination as to the CSRP and the cost of capital. For example, the trial court stated: "If you want to address those issues in your judgments, I would be happy to entertain them."

In their proposed orders, each party set forth figures relating to the cost of capital and the CSRP that favored their respective positions. Approximately two weeks after the proposed orders were submitted, the trial judge adopted the physicians' proposed order verbatim, except for changing the title of the order. The order valued each LP interest at $ 3.34 million and awarded prejudgment interest to the physicians, compounded quarterly. Thereafter, the trial court entered a final judgment. Kendall Regional's appeal ensued.

II. Analysis

A. Trial Judge's Verbatim Adoption of the Physicians' Proposed Order

Kendall Regional contends that the trial judge failed to exercise its independent judgment because it adopted verbatim the physicians' proposed order. Based on the record before this Court, we disagree.

In Perlow v. Berg-Perlow, 875 So.2d 383 (Fla. 2004), the Florida Supreme Court did not prohibit a trial judge from adopting verbatim the proposed order of one of the parties. However, the Court did caution that a party's proposed order "cannot substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge." Id. at 390. In Perlow, the trial judge adopted verbatim the proposed order of one party without giving the other party an opportunity for comments or objections. In reversing the order under review, the Florida Supreme Court stated:

When the trial judge accepts verbatim a proposed final judgment submitted by one party without an opportunity for comments or objections by the other party, there is an appearance that the trial judge did not exercise his or her independent judgment in the case. This is especially true when the judge has made no findings or conclusions on the record that would form the basis for the party's proposed final judgment. This type of proceeding is fair to neither the parties involved in a particular case nor our judicial system.

Id. (footnote omitted). Further, the Florida Supreme Court provided the following guidance to trial judges when requesting proposed orders:

(1) the trial judge may ask both parties or one party to submit a proposed final judgment; (2) if proposed final judgments are filed, each party should be given an opportunity to review the other party's proposed final judgment and make objections; (3) if only one party submits a proposed final judgment, there must be an opportunity for review and objections by the opposing party; and (4) prior to requesting proposed final judgments, the trial judge should, when possible, indicate on the record the court's findings of fact and conclusions of law.

Id. at 384.

Based on our review of the record, we reject Kendall Regional's argument that the trial judge failed to exercise his independent judgment merely because he adopted verbatim the physicians' proposed order. The transcript reflects, and Kendall Regional has acknowledged, that the trial judge actively participated in the non-jury trial. The trial judge asked pertinent questions relating to the valuation of the physicians' LP interests, and based on those questions and other statements made by the trial judge during the bench trial, it appears that the trial judge understood the expert testimony regarding the valuation of the LP interests. See Cabrera v. Cabrera, 987 So.2d 753, 755 (Fla. 3d DCA 2008) ("[T]he record before us indicates that the trial court actively participated in the final hearing. The trial court's active participation in the proceedings supports our conclusion that there is no appearance that the trial court did not exercise its independent judgment when entering the final judgment in the instant case."). Further, at the conclusion of the non-jury trial, the trial court made only one definitive finding of fact-the use of a 30/70 capital structure-and that finding is included in the final order. The transcript also indicates that the trial court did not make definitive findings as to the "cost of capital" or whether a CSRP should be added to the discount rate. The judge informed the parties that he was leaning in certain directions as to those factors and informed the parties as follows: "If you want to address those issues in your judgments, I would be happy to entertain them." Further, the trial judge allowed both parties to submit proposed orders, and by doing so, each party's submissions likely "apprise[d] the judge of their positions and their disagreements with the opposing party's" position. See In re T.D., 924 So.2d 827, 830 n.2 (Fla. 2d DCA 2005).

Based on the above analysis, although the trial judge adopted verbatim the physicians' proposed order, the record before this Court reflects that the trial judge did not delegate its independent judgment. See Empire World Towers, LLC v. CDR Créances, S.A.S., 89 So.3d 1034, 1046 (Fla. 3d DCA 2012). Accordingly, reversal is not warranted on this basis.

B. Award of Prejudgment Interest, Compounded Quarterly

Kendall Regional does not challenge the trial court's determinations that the physicians are entitled to prejudgment interest as of the date of the merger or the interest rate the trial court applied. However, Kendall Regional contends that the trial court erred by determining that the prejudgment interest should be compounded quarterly and argues that the prejudgment interest should be calculated using simple interest. We agree.

The physicians have acknowledged that the general rule in Florida is that interest should not be permitted on a sum that is interest itself-"interest on interest"-but argue that the general rule is not applicable. In making this argument, the physicians rely on (1) section 620.2122(1), which requires the trial court to "determine the fair value of the partnership interests and accrued interest " (emphasis added); (2) section 620.2122(5), which provides that "[e]ach partner made a party to the proceeding is entitled to judgment for the amount of the fair value of such limited partner's limited partner partnership interests, plus interest, as found by the court " (emphasis added); and (3) section 620.1107(1) which provides that "the principles of law and equity supplement [the Act]." We do not interpret any of these provision as authorizing the trial court to award compounded prejudgment interest.

In finding that the prejudgment interest should be compounded, the trial court relied on Computer Task Group, Inc. v. Peierls, 810 So.2d 977 (Fla. 5th DCA 2002). The trial court's reliance was misplaced. First, Computer Group was decided under section 607.247(8), Florida Statute (1987), which "governs the interest to be awarded dissenting shareholders in an appraisal proceeding." Computer Task, 810 So.2d at 978. In contrast, in the instant case, prejudgment interest was awarded pursuant to section 620.2122(1), (5) of the Act, which applies to limited partnerships. Second, the language in section 607.247(8) differs substantially from the language in sections 620.2122(1) and (5). Unlike the language in sections 620.2122(1) and (5), the language in section 607.247(8) indicates that the Legislature granted the trial court discretion in determining the rate of interest based on what "the court may find to be fair and equitable in all the circumstances."

Finally, the trial court's reliance on In re Sunbelt Beverage Corp. Shareholder Litigation, 2010 WL 26539 (Del. Ch. 2010), was also misplaced. Unlike section 620.2122, the applicable Delaware statute specifically provides that, "[u]nless the Court in its discretion determines otherwise for good cause shown, interest ... shall be compounded quarterly .... " As the Delaware statute indicates, if a legislature intends to have interest compounded or to give the trial court discretion to do so, it knows how to clearly set forth its intent in a statute. Therefore, based on the above analysis, we reverse the portion of the final judgment that provides that the prejudgment interest should be compounded quarterly and remand for a recalculation of prejudgment interest utilizing simple interest.

Accordingly, we affirm all portions of the final judgment except for the portion stating that the prejudgment interest should be compounded quarterly and remand for a recalculation.

Affirmed, in part; reversed, in part, and remanded for a recalculation of prejudgment interest.


author: PER CURIAM. EMAS, C.J., specially concurring.

text:
    The STATE of Florida, Appellant, v. Jaime HERRERA-FERNANDEZ, Appellee.
    No. 3D17-1481
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    Ashley Moody, Attorney General, and Melissa Roca Shaw, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Chief Assistant Public Defender, and James Odell, Assistant Public Defender, for appellee.
    Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Leggett, 792 So.2d 646 (Fla. 3d DCA 2001) ; State v. Aguilar, 775 So.2d 994 (Fla. 3d DCA 2000).

EMAS, C.J., specially concurring.

How many legs does a dog have if you call his tail a leg?
Four. Saying that a tail is a leg doesn't make it a leg.
- Abraham Lincoln

INTRODUCTION

The State appeals from a judgment and sentence imposed after the defendant accepted the trial court's below-guidelines plea offer. The State contends that the trial court did not have the authority to offer such a plea because the prosecutor's "invitation for a counteroffer" was not a below-guidelines plea offer. We have affirmed this judgment and sentence with a citation to State v. Leggett, 792 So.2d 646 (Fla. 3d DCA 2001) and State v. Aguilar, 775 So.2d 994 (Fla. 3d DCA 2000), recognizing the outcome is controlled by the well-established case law that plea agreements in criminal cases are generally governed by principles of contract law. See Churchill v. State, 219 So.3d 14 (Fla. 2017) ; Gonzalez v. State, 789 So.2d 1091 (Fla. 3d DCA 2001) ; State v. Frazier, 697 So.2d 944 (Fla. 3d DCA 1997) ; Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998) (holding: "A plea agreement is a contract and the rules of contract law are applicable to plea agreements").

And while that general legal proposition is unremarkable, the context in which this particular plea offer arose is remarkable. The actions of the prosecutor suggest an ill-fated attempt to prevent the trial judge from becoming involved in plea negotiations. There is a correct method and an incorrect method for accomplishing such an objective. I write to address problems that may arise when the incorrect method is followed, in the hopes such method gains neither momentum nor popularity.

FACTUAL BACKGROUND AND ANALYSIS

The relevant facts of this case are straightforward: Herrera-Fernandez and two co-defendants were charged with trafficking in cocaine. Based on the amount of cocaine alleged to be involved, the three defendants each faced a mandatory minimum sentence of fifteen years in prison. See § 893.135(b)1.c., Fla. Stat. (2015). Independently, under the sentencing guidelines scoresheet, Herrera-Fernandez faced a minimum sentence of 124.5 months in prison.

The two co-defendants accepted plea offers in which the State waived the 15-year mandatory minimum sentence. One co-defendant received a six-year sentence; a second co-defendant received a 364-day county jail sentence.

About a year before trial, the prosecutor extended to Herrera-Fernandez a plea offer of sixty months in prison-an offer that waived the 15-year mandatory minimum and was below the minimum 124.5-months at the bottom of the guidelines. Herrera-Fernandez rejected this plea offer, but later advised the trial court he was willing to plead guilty if the court offered a more favorable sentence than that offered by the State. By this point, however, the prosecutor had already withdrawn its sixty-month offer, and the trial court correctly advised Herrera-Fernandez that, as a result, the court did not have the authority to extend a below-guidelines offer or an offer below the 15-year mandatory minimum. See State v. Kelly, 147 So.3d 1061, 1063 (Fla. 3d DCA 2014) (explaining that only the State Attorney has the authority to waive a mandatory minimum sentence). See also State v. Malloy, 23 So.3d 1292 (Fla. 3d DCA 2010) (reversing where the State's plea offer was withdrawn before the trial court made its own below-guidelines offer); State v. Berry, 976 So.2d 645 (Fla. 3d DCA 2008) (noting: "Had the State's downward departure offer remained open, then the trial court could have accepted the defendant's plea and imposed an even greater downward departure").

The case then proceeded to trial, and a jury was selected. Immediately before trial was to commence, the trial court determined that the State had committed a discovery violation and excluded certain evidence significant to the State's case.

Before the trial court's ruling but after the Richardson hearing, the prosecutor announced she would "accept a defense counter[offer] of 75 months in state prison," but would not characterize this as a "state offer." Nevertheless, the prosecutor was aware, based on a previous case in front of this same judge, that this "invitation for a defense counteroffer" would be treated as a State plea offer. The trial judge even advised the prosecutor:

[T]he State plays the semantic game because, in its view, it has not extended an offer, and as a result, the Court is not permitted to offer a below-code plea. The State is incorrect. By representing it will accept the defendant's counteroffer to plead to a particular sentence, the State is, as a matter of law extending a plea offer.

The trial court then extended an offer, which Herrera-Fernandez accepted, of eighteen months in state prison followed by three years of probation. Later, in its written order imposing sentence, the trial court expanded on its legal analysis:

As the State was well aware, this Court had previously concluded that by 'agreeing to accept a counteroffer' for a specified sentence the State is-as a matter of law-extending an 'offer.'
This Court previously wrote [in a case involving a similar issue]: to convey its below code plea 'offers' the State routinely employs the charade of advising defendants that it will 'accept' a below code 'counteroffer.' The State plays this semantic game because in its view it has not extended an 'offer' and, as a result, the Court is not permitted to offer a below code plea. The State is incorrect.
By representing that it will 'accept' a defendant's counteroffer to plea to a particular sentence the State is-as a matter of law-extending a plea 'offer.' See Restatement (Second) of Contracts, Section 24 (Offer Defined: 'An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it'); Garcia v. State, 722 So.2d 905 (Fla. 3d DCA 1998) ('[a] plea agreement is a contract and the rules of contract law are applicable to plea agreements').

I agree with the trial court's legal conclusion. The prosecutor's "invitation" for a defense "counteroffer" (in the absence of any pending offer) which included specific terms (75 months' imprisonment) and indicated the prosecutor's willingness to accept that "counteroffer," was indeed an "offer" extended by the State.

Once the prosecutor made an offer below the bottom of the guidelines (and waived the mandatory minimum sentence), the trial court was authorized to extend its own offer even if it was more favorable to the defendant than the prosecutor's offer. By extending its own below-guidelines offer, the State recognized the appropriateness of a sentence below the bottom of the guidelines, and therefore cannot object to the court's offer or the extent of the departure. See Aguilar, 775 So.2d at 996 (holding: "Where the state and the defendant agree that a departure from the sentencing guidelines is appropriate, the extent of the departure is within the sound discretion of the trial judge") (citing State v. Collins, 482 So.2d 388, 390 (Fla. 5th DCA 1985) ).

The prosecutor's position in the trial court placed the State (and the Attorney General's Office) in a quandary here on appeal. This is best illustrated by comparing the unconventional "invited counteroffer" with the conventional 60-month offer extended a year before trial. As previously explained, the 60-month offer was extended by the prosecutor, rejected by the defendant, and then withdrawn by the prosecutor. The trial court properly acknowledged that the prosecutor's withdrawal of the 60-month offer prevented the court from offering its own below-guidelines offer or an offer that waived the mandatory minimum.

As for the unconventional 75-month offer on the day of trial, the prosecutor argued to the trial court that this was not an offer at all, but merely a willingness to entertain a defense counteroffer (even though there was no offer outstanding). The prosecutor never withdrew the "invited counteroffer," nor could she logically have done so without conceding that it was, in reality, an offer rather than an "invited counteroffer." Given the prosecutor's position below, it is a daunting challenge on appeal for the State to contend that the prosecutor withdrew the offer and, by doing so, precluded the trial court from making its own below-guidelines offer. See, e.g., Malloy, 23 So.3d at 1292-93 (reversing a downward departure sentence imposed pursuant to a plea offered by the trial court where the trial court made its offer after the State had "clearly and effectively withdrawn" its below-guidelines offer).

CONCLUSION

In the instant case, the prosecutor "invited" the defense to make a "counteroffer" of 75 months in prison (in the absence of any pending offer), and agreed that the State would "accept" such a "counteroffer" if made by the defendant. This was, plainly and simply, a State offer, regardless of the prosecutor's characterization of it as an "invited counteroffer." It was no more a counteroffer than a dog's tail is a fifth leg. Because the trial court properly determined that the "invited counteroffer" was really a below-guidelines plea offer that also waived the mandatory minimum sentence, and because that plea offer was not withdrawn by the State, the trial court was within its authority to extend its own plea offer to the defendant.

      I use the terms "sentencing guidelines" and "below-guidelines" offer for ease of reference, recognizing that because this case arose in 2015, the technically proper reference is to the "criminal punishment code" and "below criminal punishment code scoresheet" offer. See Fla. R. Crim. P. 3.704 (creating "The Criminal Punishment Code" for offenses occurring on or after October 1, 1998 and replacing the Sentencing Guidelines provisions of rules 3.701-3.703).

      This case does not involve the trial court's authority to unilaterally impose a downward departure sentence under sections 921.002 and 921.0026, Florida Statutes (2015). Under appropriate circumstances, and with written reasons provided, a trial court is authorized to impose a downward departure sentence even in the absence of a below-guidelines plea offer from the State. See Fla. R. Crim. P. 3.704(d)(27).


text:
    Junae CLARKE-MORALES, etc., et al., Appellants, v. COCA-COLA REFRESHMENTS USA, INC., et al., Appellees.
    No. 3D17-1367
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    Navarro | McKown, and Luis F. Navarro, Coral Gables, for appellants.
    Weinberg Wheeler Hudgins Gunn & Dial, LLC, and Lawrence E. Burkhalter, Kate D. Spinelli and Kyle R. Jackson, Sr., Miami, for appellees.
    Before EMAS, C.J., and SCALES and LINDSEY , JJ.

      Did not participate at oral argument.

   PER CURIAM.

Appellants, plaintiffs below, Junae Clarke-Morales (individually and on behalf of minor Jahir Clarke-McLean), Nahesha Barnes and Angela V. Clarke-Morales sued appellees, defendants below, Coca-Cola Refreshments USA, Inc. and Kenroy Washington Buckle for injuries sustained when a Coca-Cola truck crashed into appellants' home. On the eve of trial, appellants moved the trial court to strike the case from the trial docket. After the trial court denied appellants' motion, appellants took a voluntary dismissal on August 23, 2016, the day trial was to commence. Appellees filed a motion to tax costs, which the trial court granted after a series of evidentiary hearings. Ultimately, the trial court entered a $ 160,218.64 cost judgment against the appellants (including $ 26,151.83 in transcription fees and $ 105,112.68 in expert witness fees), allocating the amounts due among the appellants.

Appellants state two bases for appealing the judgment: (1) the trial court erred by not striking the case from the trial docket (i.e., had the case been stricken from the docket, appellants would not have had to voluntarily dismiss the case entitling appellees to costs); and (2) the trial court abused its discretion by awarding appellees taxable costs. For the succinct reasons that follow, we affirm.

Once the appellants took a voluntary dismissal, they could not challenge the trial court's earlier rulings. The voluntary dismissal terminated the lawsuit, thereby divesting the trial court of jurisdiction and depriving this Court of appellate jurisdiction to review pre-dismissal orders of the trial court. Two Islands Dev. Corp. v. Clarke, 239 So.3d 115, 124-25 (Fla. 3d DCA 2018) ; Fleet Servs. Corp. v. Reise, 775 So.2d 383, 384 (Fla. 2d DCA 2000).

After a voluntary dismissal occurs, the trial court may entertain and award trial preparation costs against the dismissing party. Coastal Petroleum Co. v. Mobil Oil Corp., 583 So.2d 1022, 1024-25 (Fla. 1991) ; Fla. R. Civ. P. 1.420(d). On this record, we cannot say that the trial court abused its discretion in its costs award to appellees. See Albanese Popkin Hughes Cove, Inc. v. Scharlin, 141 So.3d 743, 745 (Fla. 3d DCA 2014).

Affirmed.

      Approximately a month before trial, appellants moved to strike appellees' affirmative defenses and amended answer. The trial court did not hear and rule on this motion. In seeking to strike the case from the docket, appellants argued that the case was not at issue under Florida Rule of Civil Procedure 1.440.

      In addition to the trial court's May 17, 2017 final judgment for costs, appellants attached to their notice of appeal the trial court's May 17, 2017 final judgment awarding attorney's fees to appellees as a sanction for the violation of a discovery order. Appellants, however, raised no argument in their initial brief regarding this attorney's fee judgment, thereby abandoning any challenge to it. Land v. Fla. Dep't of Corr., 181 So.3d 1252, 1254 (Fla. 1st DCA 2015). Thus, we affirm the attorney's fee judgment without further elaboration.


author: LINDSEY, J.

text:
    Richardson FRANCOIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-0218
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019 Rehearing Denied April 22, 2019
    Richardson Francois, in proper person.
    Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
    Before FERNANDEZ and LINDSEY, JJ., and LEBAN, Senior Judge.
   LINDSEY, J.

Richardson Francois appeals the summary denial of his motion for relief from judgment entered for crimes he committed while he was a juvenile. For the reasons set forth below, we affirm.

In August of 1998, Francois was sentenced to thirty years in state prison after being convicted of two counts of armed robbery. The crimes were committed when Francois was seventeen years old. In August of 2017, Francois moved the trial court for relief under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and their Florida progeny. Francois argued that because the sentence imposed was for crimes committed when he was a juvenile, he is entitled to have his sentenced reviewed pursuant to sections 775.082, 921.1401, and 921.1402, Florida Statutes (2017). After a response from the State, the trial court summarily denied Francois's motion finding it to be legally insufficient and successive.

We affirm the trial court's denial of relief, albeit on other grounds. Francois was sentenced to serve thirty years in state prison. The State asserts that Francois is "guaranteed release at the age of forty seven." Under these circumstances, Francois has failed to prove a Graham / Miller violation that would entitle him to the benefits of the new juvenile sentencing law. See Hart v. State, 246 So.3d 417, 420 (Fla. 4th DCA 2018) ("The Florida Supreme Court has not yet applied Graham to a thirty-year or shorter sentence ... [N]o decision from the Supreme Court of the United States has expanded Graham so broadly that it would encompass a 30-year sentence."), rev. granted, No. SC18-967, 2018 WL 4614150 (Fla. Sept. 7, 2018) ; see also Pedroza v. State, 244 So.3d 1128 (Fla. 4th DCA 2018) (affirming a forty-year sentence following a second degree murder conviction imposed when Pedroza was a juvenile), rev. granted, No. SC 18-964, 2018 WL 6433136 (Fla. Dec. 6, 2018).

Affirmed.

      On October 4, 2018, Hart filed a Notice of Mootness with the Florida Supreme Court while his case was pending. In the Notice, Hart acknowledged that the remedy he had sought was a resentencing pursuant to Graham , among others, and pursuant to section 921.1401(2), Florida Statutes (2017) (enacted as part of chapter 2014-220). Hart further noted that the Fourth District had affirmed the denial of his 3.800(a) motion without prejudice to Hart filing a rule 3.800(a) motion to correct an illegal sentence if his sentence violated Heggs v. State, 759 So.2d 620 (Fla. 2000), and the failure to correct the sentence was an oversight or error. See Hart, 246 So.3d at 421. Hart was ultimately resentenced to twenty years' imprisonment and released during the pendency of his appeal, which resulted in his filing of the Notice. On November 27, 2018, the Florida Supreme Court recognized Hart's Notice and dismissed his appeal.


text:
    Josue COTTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-537
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kristen Kawass, Assistant Regional Counsel, for appellant.
    Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SALTER, LINDSEY, and MILLER, JJ.
   PER CURIAM.

Following a protracted evidentiary hearing, appellant failed to "demonstrate both deficiency and prejudice," thus we affirm the trial court's denial of appellant's motion for postconviction relief. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("A convicted defendant's claim that counsel's assistance was so defective as to require reversal ... has two components. First, the defendant must show that counsel's performance was deficient ... Second, the defendant must show that the deficient performance prejudiced the defense."); Krawczuk v. State, 92 So.3d 195, 202 (Fla. 2012) ("[T]his Court has held that for ineffective assistance of counsel claims to be successful, the defendant must demonstrate both deficiency and prejudice.") (citing Bolin v. State, 41 So.3d 151, 155 (Fla. 2010) ).


text:
    M.C., the mother, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Respondents.
    No. 3D19-553
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for petitioner.
    Karla Perkins, for the Department of Children and Families; Thomasina F. Moore and Laura Lee (Tallahassee), for the Guardian ad Litem Program, for respondents.
    Before LOGUE, SCALES and HENDON, JJ.
    ON CONFESSION OF ERROR
   HENDON, J.

Based on the State's proper confession of error, we grant the petition for writ of certiorari, quash the trial court's order modifying the Mother's visitation to therapeutic visits, and remand for further proceedings.

Petition for writ of certiorari granted; order quashed; case remanded.


text:
    Solomon Arthur COHEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3840
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    Solomon Arthur Cohen, Carrabelle, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant appeals the trial court's denial of his rule 3.850 motion for postconviction relief in Brevard County Circuit Court Case No. 05-1998-CF-030294-A. We affirm the trial court's order and caution him that abusive, repetitive, malicious, or frivolous filings directed to the identified lower court case number may result in sanctions such as a bar on pro se filing in this Court and referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See § 944.279(1), Fla. Stat. (2018) ; State v. Spencer , 751 So.2d 47 (Fla. 1999).

AFFIRMED.

WALLIS, EDWARDS and GROSSHANS, JJ., concur.