author: ROTHENBERG, C.J.

text:
    Kimberley ENGSTROM, Appellant, v. Kenneth ENGSTROM, Appellee.
    No. 3D17-1243
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Law Offices of Scott Alan Orth, P.A., and Scott Alan Orth (Hollywood), for appellant.
    Orshan, Spann & Fernandez-Mesa, and Steven P. Spann and Robert D. Orshan, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   ROTHENBERG, C.J.

Kimberley Engstrom ("former wife") appeals from: (1) an order granting Kenneth Engstrom's ("former husband") motion for summary judgment on the former wife's "Corrected Supplemental Amended Rule 12.540 Petition for Relief From Judgment for Fraud on Financial Affidavit" and granting the former husband's motion for attorney's fees and costs; (2) an order denying the former wife's motion for rehearing; and (3) a "Final Summary Judgment Denying Former Wife's Corrected Supplemental Amended Rule 12.540 Petition for Relief from Judgment for Fraud on Financial Affidavit and Motion for Attorney's Fees and Costs." Because the former wife's rule 12.540 petition sets forth a proper claim for relief from judgment based on a fraudulent affidavit submitted to the trial court in a marital case and there were genuine issues of material fact as to whether the former husband's affidavit was in fact fraudulent and whether the former wife relied on the draft of the allegedly fraudulent affidavit when she entered into the marital settlement agreement, which was allegedly materially similar to the affidavit the husband executed and submitted to the trial court, we reverse the orders under review and remand for an evidentiary hearing on the former wife's rule 12.540 petition. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ("Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.").

Reversed and remanded for an evidentiary hearing.

      When the former wife filed her rule 12.540 petition, Florida Family Law Rule of Procedure 12.540 provided, in part, as follows: "Florida Rule of Civil Procedure 1.540 shall govern general provision concerning relief from judgment, decrees, or orders, except: ... there shall be no time limit for motions based on fraudulent financial affidavits in marital ... cases[.]" See In re Amendments to Fla. FamilyLaw Rules of Procedure, 214 So.3d 400 (Fla. 2017).


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    Saul ALVAREZ, Appellant, v. ALL STAR BOXING, INC., Appellee.
    No. 3D17-925
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Brodsky Fotiu-Wojtowicz, and Alaina Fotiu-Wojtowicz, Michael S. Olin, and Joel S. Perwin, Miami, for appellant.
    Weiss Serota Helfman Cole & Bierman, P.L., and Edward G. Guedes Coral Gables and Adam Schwartzbaum, for appellee.
    Before LAGOA, LOGUE, and SCALES, JJ.
   LOGUE, J.

Saul Alvarez appeals a final judgment awarding All Star, Inc. $8.5 million for unjust enrichment following a 14-day jury trial. Alvarez argues that the amount of the damages was not based on competent substantial evidence. We agree, reverse, and remand with instructions.

BACKGROUND

By all accounts, the red-haired, twenty-eight-year-old Saul Alvarez, nicknamed "Canelo," is a rising international star in welterweight and middleweight boxing. As Alvarez himself testified, his 2013 fight against Floyd Mayweather was the second-highest grossing fight in boxing history at the time. Alvarez began his professional boxing career in Mexico at age 15. At an early and formative point in his career, Alvarez received boxing promotional services from All Star Boxing. All Star Boxing provided these services to Alvarez for a 15-month period that ran from September 2008 to December 2009 when Alvarez was approximately 18 years old.

The driving force behind All Star was Feliz Zabala Jr. Zabala has previously been named Latino Promoter of the Year by the World Boxing Organization. Zabala's father was a boxing promoter and Zabala was raised in the boxing industry. By eighteen, Zabala was a trainer and manager. In 2001, Zabala devoted himself full-time to being a promoter. He has promoted approximately 100 fighters-12 have become world champions.

Among other services during the 15 months, All Star obtained nine fights for Alvarez that prepared him for boxing stardom - seven fights in Mexico and two fights in the United States. Some of the fights were broadcast by Telefura Univision network. All Star also obtained a visa for Alvarez to travel to the United States for the fights. It garnered publicity in boxing publications and televised events. It paid for some of Alvarez's expenses including athletic shoes, equipment, air fare, and referee fees. Any money that it might have been entitled to for its work as promoter, it let Alvarez keep. Zabala personally attended some, but not all, fights. All Star viewed Alvarez as an investment. It assumed that if Alvarez reached the top, All Star would then obtain a fair return on investment by sharing the earnings generated by Alvarez's fights. By the end of 2009, All Star believed its effort had brought Alvarez to the verge of stardom.

All Star's expectations came to naught, however, when on January 21, 2010, Alvarez signed an exclusive promotional agreement with a different promoter, Golden Boy Productions, Inc. Golden Boy was an international, top-tier promoter with a track record of organizing fights on Pay-Per-View, HBO, Showtime, ESPN, and Fox, and at such venues as Madison Square Garden in New York and the Staples Center in Los Angeles. Golden Boy paid Alvarez a $1 million signing bonus.

The disappointed All Star sued Golden Boy for tortious interference and Alvarez for breach of contract and unjust enrichment. The jury rejected All Star's claims for tortious interference against Golden Boy and for breach of contract against Alvarez. But it found that Alvarez was unjustly enriched by All Star's services and awarded $8.5 million in damages. The amount of this unjust enrichment award is the only matter on appeal.

At trial, as reflected in the jury instruction, both parties agreed that the damages for unjust enrichment are "either the reasonable value of the labor [All Star] performed and the expenses [All Star] incurred if such labor or expenses conferred a benefit on Mr. Alvarez, or the value of the benefits that Mr. Alvarez received from All Star's labor or expenses."

All Star did not present evidence of a specific dollar figure to reflect the amount of its unjust enrichment damages. Instead, All Star's theory was apparently that the damages for unjust enrichment should be an unspecified percentage of Alvarez's subsequent earnings for all or part of his lifetime.

In this regard, All Star relied upon the testimony of its financial expert, Carl Fedde, a certified public accountant. Fedde's actual assignment was to calculate All Star's lost profits due to the breach of contract claim. He assumed All Star would have made the same as Golden Boy (Alvarez's new promoter), who in turn, would have made the same as Alvarez. Fedde first estimated that Alvarez earned $27 million from boxing in the period from 2010 to 2015 (a number he reduced to $24 million when shown an error in his calculations on cross-examination).

His estimate of $24 million from boxing in the period from 2010 to 2015 was based on his research of the 16 bouts Alvarez fought during this time. Fedde was unable to obtain verified accounting information regarding the revenues and expenses from these fights. He relied on information from sports and boxing newspapers republished on the internet. From these sources, for each of the 16 fights, he separately estimated revenues from the gate, international TV, sponsors, closed circuit TV, other TV, and pay-per-view. He then estimated how the money was distributed to other promoters and pay-per-view providers. Fedde was unable to obtain actual information for line item expenses such as payments to undercard fighters at the fights, insurance, travel, lodging, legal fees, etc. Because of this, as All Star explained in its brief, he instead used a "conservative 50% catch-all category of expense (to cover unknown items)." He then also assumed Alvarez shared proceeds 50/50 with his own promoter, an assumption discussed in more detail below.

After estimating Alvarez's earnings from 2010 to 2015, Fedde next projected Alvarez would earn $135 million from 2016 to 2026. He did so by taking his estimates of the revenue from Alvarez's last five fights during the period of 2010 to 2015 and building similar income and expense projections for each of 21 different hypothetical future fights over the next 10 years. Among other things, he assumed Alvarez would not be injured or disqualified; Alvarez would fight two fights a year; Alvarez would be the star attraction of each fight; revenues would increase as Alvarez's reputation grew; and Fedde's own estimates and assumptions for the period 2010 to 2015 would similarly apply during the period 2016 to 2026, including the generic rate of 50% for expenses and the 50/50 split between boxer and promoter.

Fedde thereby projected that gross revenues from Alvarez's future fights from 2016 to 2026 would reach 1.9 billion dollars. From this amount Alvarez's net profits would be $219,969,428, which Fedde reduced to a present value of $135,042,147 using a five-percent discount rate.

A crucial part of Fedde's calculation concerned how Alvarez and his promoter shared their portion of the take. Some fighters receive zero percent while others receive eighty percent or more. Fedde settled on an estimate of a 50/50 split for both his estimates of past earnings (2010 to 2015) and projection of future earnings (2016 to 2026).

During cross-examination, Fedde struggled to explain how he reached the figure of 50 percent. Fedde initially offered explanations such as "I felt a 50/50 split would be the easiest way"; "[t]he reality was ... that percentage could be between a hundred percent and zero percent and I took the average"; and "I picked 50 percent which is right in the middle." Fedde finally admitted that he selected 50 percent because he simply lacked the information "that would give me a reasonable basis to say whether or not 50 percent is reasonable or not":

Q. Did you have such information?
A. I do not have such information.
Q. And, so the 50 percent, you can't say is reasonable or not, can you?
A. No, Sir
Q. Am I correct?
A. You are correct, sir.

Fedde also conceded that no professional standard allowed him to arrive at the 50 percent figure on such a basis:

Q. Is there anything that you can point to in the forensic accounting business that allows you to simply pick 50 percent when you don't have any information about whether it's zero or a hundred?
A. No, sir.

In addition, Fedde testified that accountants may properly rely upon information from the internet "if, in fact, we can verify it." But he admitted that he was unable to verify significant numbers from the internet that he relied upon in his analysis. On redirect, when All Star's own lawyer attempted to rehabilitate him on this point by asking whether his computing of the lost profits reflected his "independent investigation," Fedde answered "it's not really an independent investigation. It's information I got off the internet. I did not get verifiable information."

Finally, perhaps because the focus of the trial was alleged breach of contract, Fedde never testified as to how Alvarez's earnings could be used to calculate the amount that Alvarez was unjustly enriched by All Star's services. In other words, Fedde never testified how a particular percentage, range, or portion of Alvarez's earnings during all or any part of the 16-year period from 2010 to 2026 could be attributed to the promotional services performed by All Star during the 15-month period from September 2008 to December 2009.

Indeed, again perhaps for the same reason, All Star's entire closing argument regarding damages for unjust enrichment consisted entirely of the following three sentences in which All Star asked the jury to "look back" to Fedde's two income projections of $24 million and $135 million and to "compute" those two figures to determine the damages:

And the last question [on the jury form] is: "What amount of damages is All Star Boxing entitled to as a result of Saul 'Canelo' Alvarez's unjust enrichment?"
The request that we would make at this point is that you look back to Mr. Fedde's testimony. And you have the 24 million and the hundred and, 135 million, and that you compute those two.

The jury found against All Star on its claims for breach of contract and tortious interference. But the jury found for All Star on its claim that Alvarez was unjustly enriched and awarded $8.5 million in damages. In the course of the proceedings below, Alvarez filed motions in limine, moved and renewed a motion for directed verdict, and moved for remittitur based on its contention that Fedde's testimony was speculative. The trial court denied those motions. Alvarez timely appealed.

ANALYSIS

Alvarez argues that the award of $8.5 million was contrary to law because unjust enrichment cannot be based simply upon lost profits and, in any event, the projections of lost profits here were "absurdly speculative." We decline to reach the issue of whether lost profits can ever be used to calculate the damages for unjust enrichment. But we hold that lost profits cannot be used to calculate damages for unjust enrichment in the manner All Star did in this trial.

We review the jury's award of damages to see if it is supported by substantial competent evidence viewing the facts and all reasonable inferences in the light most favorable to the verdict. See, e.g., W. Boca Med. Ctr., Inc. v. Marzigliano, 965 So.2d 240, 244-45 (Fla. 3d DCA 2007) (holding "an award by the jury will not be disturbed if supported ... by substantial competent evidence. A purported award of lost future earning capacity that is not supported by such evidence, in contrast, will be reversed").

Damages for unjust enrichment may be valued based on either (1) the market value of the services; or (2) the value of the services to the party unjustly enriched. Restatement (Third) of Restitution and Unjust Enrichment §§ 49(3)(a) & (c)(2011). See Levine v. Fieni McFarlane, Inc., 690 So.2d 712, 713 (Fla. 4th DCA 1997) (holding it was the benefit to the recipient, not the cost to the provider, which forms the basis for an award in an unjust enrichment case).

Because unjust enrichment damages are economic damages, the amount of damages must be measurable and quantifiable: "[i]t has long been accepted in Florida that a party claiming economic losses must produce evidence justifying a definite amount." United Auto. Ins. Co. v. Colon, 990 So.2d 1246, 1248 (Fla. 4th DCA 2008). "Economic damages may not be founded on jury speculation or guesswork and must rest on some reasonable factual basis." Id. See Swindell v. Crowson, 712 So.2d 1162, 1164 (Fla. 2d DCA 1998) ("Damages cannot be based on speculation, conjecture or guesswork.").

We conclude that the jury's verdict of $8.5 million in damages for unjust enrichment was speculative and is not supported by substantial competent evidence. Fedde's estimate of $24 million was itself speculative for at least two reasons. First, it was based on the assumption of the 50/50 split between Alvarez and his promoter. The percentages selected for this adjustment have an outsized impact on Fedde's final earnings estimate, potentially swinging the final number to be over twice as large or twice as small. Yet Fedde testified he had no basis for the allocation and, in fact, he could not testify that the allocation was reasonable.

On this point, we find the instant case is governed by Department of Transportation v. Samter, 393 So.2d 1142, 1145 (Fla. 3d DCA 1981). In Samter, this court reversed a jury verdict in an eminent domain case where an appraiser could not explain his 50% adjustment to a comparable sale such that "[i]t is clear that the 50% figure ... came only from the top of [the expert's] head." Id. at 1145. We held, "no weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually based chain of underlying reasoning." Here, like the testimony rejected in Samter, Fedde's assumption of a 50/50 split came from nowhere other than the top of his head. Like the valuation at issue in Samter, the valuation by Fedde can be given no evidentiary weight.

Secondly, Fedde's estimate of $24 million was speculative because it was formed using unverified numbers from the internet, when Fedde himself testified that accountants could use a number from the internet only "if, in fact, we can verify it." Fedde's use of unverified numbers from the internet in a manner that he testified violated his own standards means his estimates and projections are not "the product of reliable principles and methods." § 90.702, Fla. Stat. (2017). They therefore cannot provide substantial competent evidence to support the jury verdict.

Fedde's projection of $135 million for future earnings from 2016 to 2026 shares these same flawed assumptions and is even more speculative than the estimate of $24 million. Indeed, on appeal, All Star did not even try to defend the projection of $135 million.

But even if Fedde's estimate of $24 million and projection of $135 million were not speculative, the verdict is still not supported by substantial competent evidence because All Star offered no competent way to convert these numbers to $8.5 million in damages for unjust enrichment.

All Star asked the jury to "look back to Mr. Fedde's testimony. And you have the 24 million and the hundred and, 135 million, and that you compute those two." But All Star made no attempt to explain to the jury how this computation might be made. In fact, on appeal, All Star abandoned any attempt to justify its request to the jury to use both $24 million and $135 million to compute unjust enrichment. It refers to Alvarez's argument that projected earnings from 2010 to 2026 were absurdly speculative as a "red herring." Instead of defending what it asked the jury to do, All Star shifts ground and focuses only on Fedde's estimate of $24 million.

The sum and substance of its defense of the $8.5 million verdict is that Alvarez's income of $24 million for the 16 fights during the period from 2010 to 2015 could be allocated to various factors. These factors include Alvarez's own talent and charisma; his trainer and manager; the audience-drawing power of his 16 opponents; the services of his promoter (during these six years, the promoter was Golden Boy); publicity, media exposure, and excitement surrounding each fight; but also to All Star's prior services during 15 months from 2008 to 2009. All Star argues that the jury was free to allocate one third of Alvarez's 2010 to 2015 earnings to the All Star's promotional services during 2008 to 2009.

The problem we have with this argument is the lack of evidence for the quantification: no expert testified to one-third; no other evidence supported one-third; and on appeal, no explanation is proven for one-third. The total absence of any evidence or explanation on how the $8.5 million was derived from the $24 million is fatal. Even assuming earnings could be used to establish unjust enrichment, they could only be used if the plaintiff provided evidence establishing a fact-based chain of reasoning to allocate or quantify to some degree the plaintiff's contribution to those earnings. Perhaps this need not be done with mathematical certainty, but it cannot be based upon an unknown, subjective, unexplainable, and therefore unreviewable method as All Star proposes.

In Walters v. State Road Department of Florida, 239 So.2d 878, 882 (Fla. 3d DCA 1970), this court reversed a jury verdict in an eminent domain case when the amount awarded was based on an appraisal method that the appraiser could not explain at trial. This situation made the position of the opposing party "almost untenable, for there was no way to rebut a secret, purely subjective, formula that existed, if at all, only in the mind of a partisan appraiser." Id. Here, the absence of any explanation regarding how the $8.5 million was derived left Alvarez in a similar impossible predicament-requiring him to rebut "a secret, purely subjective formula." See id.

Also instructive on this point is American Safety Insurance Service, Inc. v. Griggs, 959 So.2d 322, 332 (Fla. 5th DCA 2007). In Griggs, borrowers sued their lenders for unjust enrichment after a foreclosure and received an award of damages. The Fifth District, however, set the award aside because the borrowers offered evidence only of their anticipated profits and "presented no evidence of the value of the benefit conferred upon" the lender. Id. Accordingly, the court reversed because the borrowers "did not establish the value of the benefit allegedly conferred." Id. This is essentially what All Star did here.

Thus, the total absence of any evidence (by expert opinion or otherwise) or logical explanation describing how the jury could have reached the allocation that one-third of the 2010-2015 earnings were generated by services provided in 2008-2009 means the allocation is not supported by substantial competent evidence.

All Star cites to Kane v. Stewart Tilghman Fox & Bianchi, P.A., 85 So.3d 1112, 1114 (Fla. 4th DCA 2012) in support of the jury's verdict, but Kane is in accord with our decision. Kane involved a claim of unjust enrichment by one set of lawyers against another. The plaintiffs claimed the defendants were unjustly enriched when, after the defendants had asked for and received the plaintiffs' legal advice and services, the defendants obtained a lucrative settlement of an extensive and complex series of lawsuits against an insurance carrier. The court upheld an award to the plaintiffs based on unjust enrichment because (1) substantial competent evidence established the settlement proceeds were produced by the work of both sets of attorneys and (2) substantial competent evidence (in the form of testimony of a lawyer expert in the exact type of lawsuits and settlements at issue) established that 50% of the settlement was attributable to work of the plaintiffs. Here, in contrast, there is no substantial competent evidence either for the $24 million estimate or for the method to allocate a portion of that estimate to All Star's services. For this reason, the judgment must be reversed.

ON REMAND

While the record fails to support the judgment of $8.5 million, the fact still remains that the jury found that Alvarez was unjustly enriched by All Star's services during 2008-2009. The record appears to contain evidence of the amount of All Star's out of pocket expenses and the value of All Star's services, for example, by way of the testimony of Rafael Mendoza, who at least suggested a number, although we do not decide whether such evidence is competent. Also, Alvarez's request for relief in this court commendably acknowledged the case should be remanded for entry of a judgment for All Star's out-of-pocket expenses. We therefore reverse and remand with instructions for the trial judge to vacate the current final judgment; to reconsider the motion for remittitur; to enter a judgment of remitter if there is evidence of the value of All Star's expenditures and services in the existing record or, if not, a judgment for the defense; and for further proceedings consistent with this opinion.

Reversed and remanded.

      To give one example, compare a split of 50% to the promoter and 50% to the boxer against a split of 20% to the promoter and 80% to the boxer (which Alvarez actually received for some fights). If the amount being split was $1,000 dollars, the first split gives the promoter $500 while the second split gives the promoter $200. The increase of 30 percentage points from 20% to 50% reflects a relative 250% increase in the dollar amount of the earnings estimate.


author: PER CURIAM.

text:
    Alfonso Apolinar DE LA CRUZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1897
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018 Rehearing Denied December 7, 2018
    Alfonso Apolinar De La Cruz, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. Crim. P. 3.800(a)(2) ; Jones v. State , 198 So.3d 920, 921 (Fla. 5th DCA 2016) ; Mills v. State , 23 So.3d 186, 187 (Fla. 1st DCA 2009) ; see also Nieves v. State , 113 So.3d 162, 163 (Fla. 2d DCA 2013) ("[A] defendant who is arrested for different offenses on different dates is not entitled to have jail credit applied equally to all prison sentences even though the sentences are run concurrently." (quoting Washington v. State , 873 So.2d 609, 610 (Fla. 2d DCA 2004) ) ).

COHEN, C.J., ORFINGER, and EDWARDS, JJ., concur.


text:
    Cornelia BARSAN, Appellant, v. TRINITY FINANCIAL SERVICES, LLC, Appellee.
    No. 3D18-502
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018.
    Arthur J. Morburger, for appellant.
    Law Offices of Damian G. Waldman, P.A., and David J. Miller (Largo) and Damian G. Waldman (Largo), for appellee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See § 673.3081(1), Fla. Stat. (2016) ; Bennett v. Deutsche Bank Nat. Trust Co., 124 So.3d 320, 322 (Fla. 4th DCA 2013) (noting that the term "presumed" in section 673.3081(1) means that until some evidence is introduced which would support a finding that the signature is forged or unauthorized, the plaintiff was not required to prove that it is valid (citing UCC comment 1 to section 673.3081), and because defendants failed to make any evidentiary showing to support their claim that the signer was unauthorized, plaintiff was entitled to rely on the presumption to obtain summary final judgment). See also Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) ; Cardona v. Casas, 225 So.3d 384 (Fla. 3d DCA 2017) : Rodriguez v. Lorenzo, 215 So.3d 631, 632 (Fla. 3d DCA 2017) (applying Applegate and noting that, in the absence of a transcript of the relevant hearing, the reviewing court is unable to determine whether the trial court abused its discretion).


author: LUCK, J.

text:
    Bruce C. MATHESON, Appellant, v. MIAMI-DADE COUNTY, Florida, etc., et al., Appellees.
    No. 3D17-2649
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Carlton Fields Jorden Burt, P.A., Richard J. Ovelmen, Enrique D. Arana, Alix I. Cohen, Todd M. Fuller and Scott E. Byers, Miami, for appellant.
    Abigail Price-Williams, Miami-Dade County Attorney, and Oren Rosenthal, Monica Rizo Perez and Debra Herman, Assistant County Attorneys; Akerman LLP, Gerald B. Cope, Jr., Joseph L. Rebak and Erika R. Shuminer, Miami, for appellees.
    Before LAGOA, FERNANDEZ and LUCK, JJ.
   LUCK, J.

David Beckham and his partners want to build a Major League Soccer stadium in Miami. They bought some land from Miami-Dade County to make it happen. A nearby landowner challenged the sale claiming that the county had a clear legal duty to sell the property by competitive bidding, instead of outright to Beckham and his partners, so the landowner would have the opportunity to buy it. Must the county sell the land through the competitive bid process? No, because the land was sold as an economic development incentive to attract tourism and hospitality industries; attract and retain a soccer business enterprise; create a soccer stadium and new jobs with it; enhance and expand economic activity in the county; grow and create business enterprises in the county; and create construction and development jobs to build the stadium. Because the nearby landowner had no clear legal right to buy the land through the competitive bid process, and the county had no clear legal duty to offer the land for competitive bid, we affirm the trial court's dismissal of the landowner's claim.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 6, 2017, the county adopted Resolution No. 567-17 authorizing the sale of approximately 2.79 acres of county land to 0101 Miami Properties, LLC (a company controlled by Beckham and his partners) to be used for the construction and operation of a soccer stadium for a Major League Soccer team. Miami Properties already owned the land next door, but needed the 2.79 acres to put together a lot large enough for the soccer stadium. Miami Properties was to pay the county $9,015,000 for the land. The resolution, the commission said, was adopted pursuant to section 125.045, Florida Statutes, in order to "promote economic development, to strengthen the County's vibrancy, and to attract tourism and attendant hospitality industries by housing a Major League Soccer stadium." The resolution provided that, as part of the deal for the land, Miami Properties was required to "make certain economic investments in Miami-Dade County at the Property," including:

i) the construction and operation of a sports stadium;
ii) the expenditure of a minimum total of $175,000,000.00 to purchase the land and to construct the facilities necessary for the Stadium Project;
iii) the creation and maintenance of 50 jobs within five years from the date of conveyance, with the majority being full time jobs with a salary of the greater of $27,069.00 or the living wage then in effect; and
iv) the development of a permanent skilled jobs' training program that would train interested applicants in the labor and work necessary for the Stadium Project.

The next month, Bruce Matheson - a neighboring property owner - filed a petition for writ of mandamus and declaratory and injunctive relief. Matheson's petition alleged that section 125.35, Florida Statutes, required the county to offer the 2.79 acres for competitive bid, and the county violated its clear legal duty by not doing so.

The county moved to dismiss the petition because Matheson did not have standing to challenge the sale to Miami Properties, and the sale was authorized by section 125.045, which did not require a competitive bid, and therefore, the county did not violate a clear legal duty. Miami Properties intervened in the case, and moved to dismiss on similar grounds. After a lengthy hearing, the trial court granted the motion and dismissed the petition because: (1) Matheson did not have standing to challenge the sale; and (2) even if he did, the county had no clear legal duty to competitively bid the 2.79 acres because section 125.045 allowed the county to sell the property for economic development purposes without complying with the competitive bidding requirements of section 125.35.

STANDARD OF REVIEW

"The de novo standard of review is applied when considering an order granting a motion to dismiss," Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002), and "questions involving statutory interpretation," E.A.R. v. State, 4 So.3d 614, 629 (Fla. 2009). "A trial court's decision as to whether a party has satisfied the standing requirement is [also] reviewed de novo." Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011).

DISCUSSION

Matheson attacks both of the trial court's rulings. He contends that he had standing to challenge the sale of the 2.79 acres to Miami Properties, and the county had a clear legal duty under section 125.35 to competitively bid the property, where Matheson and others would have had an opportunity to buy it at a higher price.

Standing

We first address standing because it "is a threshold inquiry which must be made at the outset of the case before addressing [the merits]." Ferreiro v. Phila. Indem. Ins. Co., 928 So.2d 374, 376 (Fla. 3d DCA 2006) (citations omitted). "A plaintiff must demonstrate the existence of an actual controversy between the plaintiff and the defendant in which plaintiff has a sufficient stake or cognizable interest which would be affected by the outcome of the litigation in order to satisfy the requirements of standing." Warren Tech., Inc. v. Carrier Corp., 937 So.2d 1141, 1142 (Fla. 3d DCA 2006) (citations omitted).

Matheson alleged that he was "ready, willing and able to purchase the County Property at the same price and on the same terms the County" offered to Miami Properties. This allegation, as it was in Accela, Inc. v. Sarasota County, 901 So.2d 237 (Fla. 2d DCA 2005), is sufficient for standing purposes. In that case, as here, the plaintiffs "asserted that the County had improperly awarded contracts to CSDC Systems for computer software and maintenance services without first obtaining competitive bids or proposals." Id. at 238. The plaintiffs "alleged that the Sarasota County Procurement Code," like Matheson alleges of section 125.35, "require[d] such competitive bidding." Id."The plaintiffs complained that they stood ready, willing, and able to submit a competitive bid or proposal had the County invited such bids or proposals." Id. The trial court ruled that "Plaintiffs just don't have standing." Id. The Second District Court of Appeal held that "the plaintiffs had standing to complain because they were potential competitors who had a right to seek a determination of whether competitive bidding was required." Id. (citations omitted).

Matheson, too, has alleged that he was a potential competitor for the 2.79 acres sold to Miami Properties, and had a right to seek a determination whether competitive bidding was required. This allegation gives Matheson a sufficient stake or cognizable interest to satisfy the requirements for standing.

The county contends that Matheson's allegation of being "ready, willing, and able" to purchase the property is hollow because any bid would require that a soccer stadium be built for a potential Major League Soccer franchise, and Matheson did not have enough land (even with the 2.79 acres) to build such a stadium. At this stage in the litigation, where we're reviewing the trial court's order granting the motion to dismiss based on Matheson's lack of standing, "we must confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true." Payne v. City of Miami, 927 So.2d 904, 906 (Fla. 3d DCA 2005) (citations omitted). Accepting Matheson's allegation as true, as we must at this point, he has met the threshold for standing.

Clear Legal Duty

Matheson challenged the sale because, he alleged, the county violated its clear legal duty by failing to sell the 2.79 acres through the competitive bidding process. Matheson is entitled to a writ of mandamus if he can show: (1) a clear legal right to competitively bid on the 2.79 acres; (2) a clear legal duty by the county to offer the property for competitive bidding; and (3) no other adequate legal remedy available. See Tucker v. Ruvin, 748 So.2d 376, 377 (Fla. 3d DCA 2000) (describing "the prerequisites for the issuance of a writ of mandamus" as "1) petitioner must have a clear legal right, 2) respondent must have a clear legal, ministerial duty to perform, and 3) petitioner must have no other adequate legal remedy available" (citations omitted) ).

Matheson points to section 125.35 as establishing the county's clear legal duty to competitively bid the sale of the property, and specifically, this language:

(1)(a) The board of county commissioners is expressly authorized to sell and convey any real or personal property, and to lease real property, belonging to the county, whenever the board determines that it is to the best interest of the county to do so, to the highest and best bidder for the particular use the board deems to be the highest and best, for such length of term and such conditions as the governing body may in its discretion determine....
(c) No sale of any real property shall be made unless notice thereof is published once a week for at least 2 weeks in some newspaper of general circulation published in the county, calling for bids for the purchase of the real estate so advertised to be sold. In the case of a sale, the bid of the highest bidder complying with the terms and conditions set forth in such notice shall be accepted, unless the board of county commissioners rejects all bids because they are too low. The board of county commissioners may require a deposit to be made or a surety bond to be given, in such form or in such amount as the board determines, with each bid submitted.

§ 125.35(1)(a), (c), Fla. Stat. (2017) (emphasis added).

There are two ways to read the underlined language:

Matheson's way . Matheson reads "any real property" to mean all land sold by the county. If the county sells land, even for economic development, it must be done by competitive bid after notice and advertisement.
The county's way . The county reads "any real property" to refer to the real property that the county authorizes for sale by competitive bid under section 125.35(1)(a). If the county authorizes property for sale to the highest and best bidder, then any such real property must follow the procedures in subsection (1)(c), including that the sale be advertised in a local newspaper.

In a comprehensive nineteen-page order, the trial court used the tools for reading statutes to conclude that " section 125.045 of the Florida Statutes contains independent authority for the County to convey the Stadium Property to the Stadium Developer as an economic development project, and said conveyance is not subject to the competitive provisions of section 125.35." We adopt the trial court's reasoning that the county had no clear legal duty to offer the 2.79 acres for competitive bid, and only add to explain why.

The Florida Supreme Court has told us how we should read section 125.35.

[I]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.

Fla. State Racing Comm'n v. McLaughlin, 102 So.2d 574, 575-76 (Fla. 1958), quoted in E.A.R., 4 So.3d at 629, and Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265-66 (Fla. 2008). "The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature's intent." Fla. Dep't of State, Div. of Elections v. Martin, 916 So.2d 763, 768 (Fla. 2005) (citations omitted). "Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another." Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992) ; see also Howarth v. City of De Land, 117 Fla. 692, 158 So. 294, 298 (1934) ("The courts, in construing a statute, must, if possible, avoid such construction as will place a particular statute in conflict with other apparently effective statutes covering the same general field."). Moreover, "[i]t is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole." Forsythe, 604 So.2d at 455.

Or, as Justice Scalia and Bryan Garner have explained,

Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts. Sir Edward Coke explained the canon in 1628: "[I]t is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers."

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (alteration in original). And:

The provisions of a text should be interpreted in a way that renders them compatible, not contradictory .... The imperative of harmony among provisions is more categorical than most other canons of construction because it is invariably true that intelligent drafters do not contradict themselves (in the absence of duress). Hence there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.

Id. at 180.

Matheson's reading of section 125.35 is not in harmony with the other, related sections of chapter 125. Chapter 125, entitled "County Government," "codifies the County's broad home rule powers." Miami-Dade Cty. ex rel. Walthour v. Malibu Lodging Investments, LLC, 64 So.3d 716, 718 (Fla. 3d DCA 2011). The county, among other powers, has the "authority to employ personnel, expend funds, enter into contractual obligations," and, most importantly here, "purchase or lease and sell or exchange real or personal property." § 125.01(3)(a), Fla. Stat. (2017). Chapter 125 then sets out a number of ways that a county can go about selling its land. For example:

Section 125.045, "County economic development powers"
(3) For the purposes of this section, it constitutes a public purpose to expend public funds for economic development activities, including, but not limited to, developing or improving local infrastructure, issuing bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants, leasing or conveying real property, and making grants to private enterprises for the expansion of businesses existing in the community or the attraction of new businesses to the community....
(5)(a) By January 15, 2011, and annually thereafter, each county shall report to the Office of Economic and Demographic Research the economic development incentives in excess of $25,000 given to any business during the county's previous fiscal year. The Office of Economic and Demographic Research shall compile the information from the counties into a report and provide the report to the President of the Senate, the Speaker of the House of Representatives, and the Department of Economic Opportunity. Economic development incentives include:
1. Direct financial incentives of monetary assistance provided to a business from the county or through an organization authorized by the county. Such incentives include, but are not limited to, grants, loans, equity investments, loan insurance and guarantees, and training subsidies.
2. Indirect incentives in the form of grants and loans provided to businesses and community organizations that provide support to businesses or promote business investment or development.
3. Fee-based or tax-based incentives, including, but not limited to, credits, refunds, exemptions, and property tax abatement or assessment reductions.
4. Below-market rate leases or deeds for real property.

Id. § 125.045(3), (5)(a) (emphasis added).

Section 125.38, "Sale of county property to United States, or state"
If the United States, or any department or agency thereof, the state or any political subdivision or agency thereof, or any municipality of this state, or corporation or other organization not for profit which may be organized for the purposes of promoting community interest and welfare, should desire any real or personal property that may be owned by any county of this state or by its board of county commissioners, for public or community interest and welfare, then the United States, or any department or agency thereof, state or such political subdivision, agency, municipality, corporation or organization may apply to the board of county commissioners for a conveyance or lease of such property. Such board, if satisfied that such property is required for such use and is not needed for county purposes, may thereupon convey or lease the same at private sale to the applicant for such price, whether nominal or otherwise, as such board may fix, regardless of the actual value of such property. The fact of such application being made, the purpose for which such property is to be used, and the price or rent therefor shall be set out in a resolution duly adopted by such board. In case of a lease, the term of such lease shall be recited in such resolution. No advertisement shall be required.

Id. § 125.38 (emphasis added).

Matheson's reading of section 125.35 conflicts with sections 125.045 and 125.38. Matheson contends that all real property that the county sells must be by competitive bid to the "highest and best bidder." The highest and best bid is the one "financially most advantageous to the community." Marriott Corp. v. Metro. Dade Cty., 383 So.2d 662, 665 (Fla. 3d DCA 1980). But section 125.045 allows the county to sell its real property at a "[b]elow-market rate" as an "[e]conomic development incentive." Requiring that all county property be put out for bid and sold at the "financially most advantageous" price conflicts with the county's power to sell its property at a below-market rate for economic development purposes. By definition, selling property at a below-market rate, as allowed by section 125.045, cannot be the financially most advantageous price for the county, which is required by section 125.35.

Section 125.38 also allows the county to sell land to a nonprofit for a nominal or less-than-actual-value price, and the sale does not need to be advertised. This, too, is inconsistent with Matheson's reading of section 125.35 that all county land must be sold through the competitive bidding process to the highest and best bidder. The nominal price offered to the nonprofit will never be the highest and best bid, and section 125.38 specifically allows a county to disregard the "actual value" of the property being sold.

The state attorney general rejected Matheson's reading of section 125.35 more than forty years ago. In 1974, Seminole County wanted to lease some of its recently-acquired property to a nonprofit little league baseball association. Op. Att'y Gen. Fla. 74-219 (1974). The county asked the attorney general for a legal opinion on the following question: "Would such a lease, if proper, be controlled by the procedural requirements of [ section] 125.35 [the competitive bidding statute] or of [section] 125.38 [the statute authorizing nominal sales to nonprofits]?" Id. The attorney general answered:

You inform me that Seminole County has recently acquired, by eminent domain, a 30-acre parcel of real property for use as part of a large park. The county now proposes to lease a portion of this 30-acre tract for a ten-year term to a nonprofit corporation for use in connection with little league baseball activities....
Sections 125.35 and 125.38, [Florida Statutes ], relate to the sale and leasing of county-owned property.... [I]t is clear that section 125.38 is applicable to the proposed lease you describe. [ Section] 125.35 covers county leases in general; [section] 125.38 is much more specific, amounting, in effect, to an exception to the general statute. Since the lease falls within the terms of the specific statute, that one - and not the general statute - applies.

Id. While attorney general opinions are not binding, they are persuasive, Hardee Cty. v. FINR II, Inc., 221 So.3d 1162, 1166 (Fla. 2017) ("Attorney General opinions are also persuasive in statutory construction."), and we are persuaded by this one, especially because we must read related statutes in harmony where possible.

Chapter 125 authorizes a number of ways for a county to sell its property. Normally, a county will sell its land through the competitive bidding process in section 125.35. But there are exceptions for a county to sell real property at a below-market rate for economic development, section 125.045, and at a nominal rate to community interest nonprofits that will use the land for the public interest and welfare, section 125.38. Reading section 125.045 as an exception to the competitive bidding requirements of section 125.35, as the attorney general did for section 125.38, avoids an unnecessary conflict and harmonizes the various provisions of chapter 125.

Matheson's reading of section 125.35 is also flawed because it makes the common "interpretive fault" of failing to "consider the entire text, in view of its structure and of the physical and logical relation of its many parts." Scalia & Garner, supra, at 167. Matheson reads the first sentence in subsection (1)(c) - "[n]o sale of any real property shall be made unless notice thereof is published once a week for at least 2 weeks in some newspaper of general circulation published in the county, calling for bids for the purchase of the real estate so advertised to be sold," § 125.35(1)(c), Fla. Stat. (2017) - to mean that all county property that is sold must be done by competitive bid. But this reading is inconsistent with the text, structure, and title of section 125.35.

The first sentence of section 125.35"expressly authorize[s]" the county "to sell and convey any real or personal property, and to lease real property, belonging to the county, whenever the board determines that it is to the best interest of the county to do so, to the highest and best bidder ...." Id. § 125.35(1)(a). "Authorize" means "[t]o formally approve; to sanction." Authorize, Black's Law Dictionary (9th ed. 2009). Reading section 125.35 as Matheson does would mean the legislature approved the sale of county property by competitive bidding in subsection (1)(a), but then mandated that competitive bidding be used for all land sales in subsection (1)(c). Reading section 125.35 Matheson's way would make the express authorization in subsection (1)(a) superfluous because the mandate in (1)(c) would cover all sales of real property. There would be no need for an express authorization if there's already a mandate to do the same thing in subsection (1)(c). We don't read statutes that way. See Metro. Cas. Ins. Co. v. Tepper, 2 So.3d 209, 215 (Fla. 2009) ("[W]ords in a statute are not to be construed as superfluous if a reasonable construction exists that gives effect to all words.") (quotation omitted).

The structure of section 125.35 also weighs against Matheson's reading. Subsection (1)(a) authorizes a county to sell its land through the competitive bidding process. Subsection (1)(b) carves out some narrow exceptions for sales that do not have to be competitively bid. And subsection (1)(c) sets out the process a county must use to competitively bid its real property: the sale must be published at least once a week for two weeks in a newspaper of general circulation; the publication must call for bids to purchase the advertised real estate; and the highest bid must be accepted (unless they are all too low). The reference in subsection (1)(c) to "sale of any real property" refers to the real property a county has authorized for sale by competitive bid. The subject of the procedural requirements of subsection (1)(c) is the real property authorized for sale in subsection (1)(a).

The title to section 125.35 also sheds light on whether the statute mandates collective bidding for all real property sold by a county or merely authorizes competitive bidding as one method for selling property. See Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So.2d 20, 25 (Fla. 2004) ("We have previously stated that in determining legislative intent, we must give due weight and effect to the title of the section. The title is more than an index to what the section is about or has reference to; it is a direct statement by the legislature of its intent.") (citation and quotation omitted). Section 125.35 is entitled, "County authorized to sell real and personal property and to lease real property." The title indicates that section 125.35 is an authorization, and not a mandate, to sell property through the competitive bidding process.

A decade ago, in ContractPoint, the Florida Supreme Court rejected a reading of a statute similar to Matheson's reading of section 125.35. There, a state contractor sued the department of environmental protection for breach of contract, and obtained a judgment for $628,543. Id. at 1262. The department refused to pay "based on its assertion that section 11.066 prohibits a state agency from paying any judgment unless there is a specific appropriation by the Legislature for that judgment." Id. Subsection (3) of section 11.066 provided that "[n]either the state nor any of its agencies shall pay or be required to pay monetary damages under the judgment of any court except pursuant to an appropriation made by law." Id. at 1265 (quoting section 11.066). "While subsection (3), standing alone, appears to be an absolute bar to the State's payment of all judgments," the Court conceded, "[i]n interpreting section 11.066 ... we cannot read subsection (3) in isolation, but must read it within the context of the entire section ...." Id. at 1265-66. That meant reading subsection (3) "with reference to subsection (2)," which provided:

The state and each state agency, when exercising its inherent police power to protect the public health, safety, or welfare, is presumed to be acting to prevent a public harm. A person may rebut this presumption in a suit seeking monetary damages from the state or a state agency only by clear and convincing evidence to the contrary.
§ 11.066(2), Fla. Stat. (2005) (emphases supplied).
This express reference to suits "seeking monetary damages" made in the context of the State's exercise of its "police power to protect the public health, safety, or welfare" precedes the references in subsection (3) to "monetary damages under the judgment of any court" and "a judgment for monetary damages." The reference to police power also precedes the remaining subsections that discuss execution on State property and application of mandamus to enforce such judgments. Subsection (2) clearly focuses the thrust of the statute on judgments arising from claims based on the exercise of the State's police power and says nothing about claims arising from breach of contract. The references in subsection (3) to "monetary damages" echo the provisions of subsection (2) and accordingly relate to monetary damages contained in judgments arising from the exercise of the State's police powers. Therefore, the statute does not express a clear intent to bar payment of valid breach of contract judgments, but rather expresses an intent to limit payment of judgments arising out of the exercise of the State's police powers.

Id. at 1266. The Court read "monetary damages" in subsection (3) in context with the rest of the statute to find that it referred to the state's exercise of its police powers.

We must give section 125.35(1)(c)'s reference to the "sale of any real property" the same reading. Section 125.35(1)(a) expressly authorizes the county to sell real property to the highest and best bidder. Subsection (1)(c) lays out the procedure for how a county conducts and notices the competitive bid. The "sale of any real property" mentioned in subsection (1)(c) refers to the real property that has been authorized for sale by competitive bid in subsection (1)(a) - not all real property that is ever sold by the county pursuant to other provisions of chapter 125.

Matheson contends we are bound by Rolling Oaks Homeowner's Association v. Dade County, 492 So.2d 686 (Fla. 3d DCA 1986) to hold that the sale of county land for a stadium must be done by the competitive bidding process in section 125.35. In Rolling Oaks, years earlier, a local family had donated land to the county. Id. at 687. The county leased the donated property "for the purpose of constructing a large sports stadium and attendant commercial facilities." Id. Nearby homeowners sued, in part, because the county "acted illegally in authorizing a lease that was not necessarily made to the highest and best bidder pursuant to section 125.35, Florida Statutes." Id. at 689.

First, Rolling Oaks could not address the issue in this case - whether the county's sale of property as an economic development incentive pursuant to section 125.045 must be done by competitive bidding pursuant to section 125.35 - because that statute was added by the legislature to the county's powers in 1995, Ch. 95-309, § 1, at 2773, Laws of Fla., almost a decade after Rolling Oaks was decided. The economic development incentives statute didn't exist when the court considered Rolling Oaks, and the county did not sell the property as an economic development incentive, as it did here. We couldn't hold anything as to whether land sold as an economic development incentive had to be competitively bid under section 125.35 because that issue wasn't before the court.

Even if it was, Rolling Oaks supports the county's reading of section 125.35. In response to the homeowners' claim that the county failed to comply with section 125.35, the stadium company argued that the "transaction [was] exempt from bidding under section 125.39, Florida Statutes, which excludes conveyances for a specific purpose which contain a reversionary clause." Id. We explained that under the exclusion in section 125.39, "[a]s long as a conveyance to the county includes a valid special purpose and reverter clause [the elements needed for the section 125.39 exclusion], the competitive bidding requirements do not apply to county dispositions." Id. at 690. We found, however, that at least one of the parcels leased by the county did "not qualify for this exemption." Id. at 689.

Rolling Oaks acknowledges, as we do here, that section 125.35 competitive bidding is subject to specific exemptions in chapter 125, as long as the statutory requirements of those exemptions are met. ( Rolling Oaks is also consistent with the attorney general's 1974 opinion - section 125.35 is subject to limited and specific exceptions and exclusions.) The legislature added section 125.045 as an additional exclusion for below-market land conveyances done for the purpose of economic development. Like the exclusion in Rolling Oaks, as long as the requirements of section 125.045 are met, a county can deed real property at a below-market rate outside the competitive bidding process.

Matheson also contends that the county's reading of section 125.35 gives it too much power to avoid competitive bidding. All the county would have do is characterize the sale as an "economic development incentive," and it can sell the property directly to one party at a below-market rate without having to solicit competitive bids. This is a recipe for abuse and corruption, Matheson says. As he explains in his initial brief, "[t]he entire point of the competitive bidding statute is to protect the public from collusive, corrupt, sweetheart, and backroom deals made with the local government's favored constituents."

We have sanctioned no such thing. Competitive bidding under section 125.35 is, and remains, the normal process for selling county land. But the legislature authorized other ways for a county to sell its real property, including for economic development activities under section 125.045, or to a community interest nonprofit for the public interest under section 125.38. Under the economic development incentive exception, the county cannot sell to favored constituents for a corrupt or collusive purpose. That would be illegal. See, e.g., § 838.016(1), Fla. Stat. (2017) ("It is unlawful for any person to knowingly and intentionally give, offer, or promise to any public servant, or, if a public servant, to knowingly and intentionally request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.").

And even if it wasn't illegal, section 125.045 would not permit it because the statute only authorizes a county to sell real property for the public purpose of economic development activities. Section 125.045 describes such activities as "facilitat[ing] the growth and creation of business enterprises in the counties of the state"; "attact[ing] and retain[ing] business enterprises"; and "the expansion of businesses existing in the community or the attraction of new businesses to the community." Id. § 125.045(1) - (3). If the sale doesn't meet this criteria for economic development activity, then the county cannot use section 125.045 to sell the property and must competitively bid the property or find another exception under chapter 125.

Here, the attachments to Matheson's complaint showed that the sale of the 2.79 acres to Miami Properties was for economic development activities. The sale required Miami Properties to: (a) construct and operate a sports stadium; (b) spend a minimum of $175,000,000 to purchase the land and construct the facilities necessary for the stadium project; (c) create and maintain no less than fifty permanent jobs at the stadium within five years, with a majority of the jobs being full time and having an annual salary greater than the county living wage; (d) comply with the county's small business enterprise programs during construction; (e) hold at least two job fairs to recruit local employees; and (f) develop a permanent skilled jobs training program.

CONCLUSION

Because the 2.79 acres were sold to Miami Properties as an economic development incentive, the county did not have to comply with the competitive bidding requirements of section 125.35. Thus, Matheson did not have a clear legal right to buy the property, and the county did not have a clear legal duty to sell it by competitive bid. The trial court correctly dismissed Matheson's complaint, and we affirm the dismissal.

Affirmed.

      Section 125.045 is entitled, "County economic development powers," and specifically authorizes the county to "expend public funds for economic development activities," including "leasing or conveying real property." § 125.045(3), Fla. Stat. (2017). "Economic development incentives include ... [b]elow-market rate leases or deeds for real property." Id. § 125.045(5)(a) 4.

      Section 125.35 is entitled, "County authorized to sell real and personal property and to lease real property." It "authorize[s]" the county "to sell and convey any real or personal property, and to lease real property, belonging to the county ... to the highest and best bidder for the particular use the board deems to be the highest and best." § 125.35(1)(a), Fla. Stat. (2017).

      Matheson also alleged standing because he owned property less than a quarter mile away from the 2.79 acres, and would be "substantially and adversely affected by the increased vehicular and pedestrian traffic, congestion, noise, decline in property values, and other impacts the [stadium] project will cause." Because we find Matheson's allegation that he was "ready, willing, and able" to competitively bid on the 2.79 acres was sufficient to challenge the sale, we do not need to decide whether living nearby was also sufficient.

      Matheson relies heavily on Pandya v. Israel, 761 So.2d 454 (Fla. 4th DCA 2000), but we don't find that case helpful because Pandya did not discuss the conflict between sections 125.35 and 125.045, and the issue in that case was whether the county could sell property it did not own. (It couldn't, the court said.) Id. at 458 ("We agree with Judge Kroll that section 125.35 contemplates that the County will sell real property in the traditional way - when it owns the property.... Our reading of section 125.35 is that the County may 'sell and convey' only real property that it owns."). Pandya did not address how we read section 125.35 in relation to other specific authorizations to sell land in chapter 125, and it did not address the economic development incentive statute in section 125.045.

      Subsection (5)(a), authorizing the county to deed real property at "[b]elow-market rate[s]" as an "economic development incentive," was added in 2010. Ch. 10-147, § 1, Laws of Fla.


author: SALTER, J.

text:
    Marcelyn MATHIEU, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-423
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018.
    Rier Jordan, P.A., and Andrew F. Rier, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   SALTER, J.

Marcelyn Mathieu appeals his conviction by a jury and sentence on charges of second-degree murder with a firearm and accessory after the fact. Mathieu raises three allegedly-reversible errors during the jury trial: (1) the denial of a defense request to exercise a peremptory strike of a prospective juror; (2) the denial of a motion to suppress the identification of Mathieu from a photographic lineup contended to have been unduly suggestive; and (3) the admission of prior allegedly-inconsistent statements and hearsay testimony by the State's own witness, an evidentiary ruling allowing improper corroboration of that witness's inconsistent testimony, and the denial of Mathieu's motion to strike the witness's testimony.

We affirm without detailed analysis on points (1) and (2), and we affirm on point (3) based the more extensive assessment which follows.

I. Facts and Proceedings Below

A. The Shooting; Charges against Eric Garcia

Evani Galvez died at the wheel of his Jeep Cherokee on July 30, 2011. His passenger, Eric Garcia, had negotiated a deal to sell marijuana that day. Garcia and the buyer had texted using drug-trade code for the terms of the deal. They arranged a meeting in the parking lot of a shopping center. Unbeknownst to the buyer, however, Garcia planned to use a BB gun that looked like a real pistol to rob the buyer of the cash for the purchase.

Before being driven by the murder victim in his Jeep Cherokee to the transaction site, Garcia smoked a marijuana joint and took Xanax. At the arranged parking lot rendezvous, Galvez and Garcia saw a white Pontiac GT waiting as well. After Garcia spoke briefly to the passenger in the Pontiac and the two confirmed that the passenger was the buyer in the intended transaction, the passenger walked with Garcia over to the victim's Jeep Cherokee. Though this was controverted during the trial, the passenger/buyer was later identified as Marcelyn Mathieu, the defendant.

Mathieu allegedly occupied the back seat of the Jeep, with Garcia in the passenger seat in front of him. Garcia turned around, pointed the BB gun at Mathieu, and directed him to empty his pocket. Mathieu complied, dropping his cash and cellphone. The victim, in the driver's seat in the Jeep, let Mathieu leave the vehicle and drove away (with Garcia still occupying the passenger seat).

Mathieu returned to the passenger seat of the white Pontiac, and that car rapidly pursued the Jeep. The two cars were driving an estimated 70 miles an hour through a residential neighborhood at one point. Ultimately the Pontiac pulled around to the left side of the Jeep and the passenger-allegedly Mathieu-fired at least two shots, one of which fatally wounded the victim in the head. The victim collapsed over the steering wheel of the Jeep and the Jeep swerved, crashing through a fence and into a house. The Pontiac continued on its course and left the area.

Garcia was temporarily knocked unconscious. When he recovered, he grabbed the BB gun and his bottle of Xanax pills and left the Jeep. Because of his prior criminal record and house arrest at the time, he threw the bottle of pills over a house and threw the BB gun over a fence and into the backyard of a nearby home. While at the crash scene, he dropped the cellphone into a sewer drain and put the money taken from Mathieu in his pocket.

In his initial statement to the police, Garcia blamed the drug robbery on the victim and identified the shooter in the Jeep as "Spook." He later admitted that he made up that name because he didn't want to get in trouble. He did say that the shooter was a "stocky" black male in a white Pontiac.

Garcia was arrested and charged with second-degree felony murder and other offenses: robbery, evidence-tampering, and a probation violation. In August 2012, Garcia entered into a plea agreement with the State, accepting a term of five years in state prison for the charges. To that point, he had not identified Mathieu's name or photograph. His plea agreement required him to: testify to the best of his knowledge regarding the shooter; cooperate fully with law enforcement in "locating, investigating and prosecuting" anyone involved in the murder of the victim, Galvez; give a sworn statement to the State regarding his knowledge of the murder; and testify truthfully in any depositions, hearings, trials and statements regarding those matters.

B. The Investigation; Identification of Mathieu

Several months after Garcia's plea agreement became effective, Miami Gardens Police Detective Pacheco visited Garcia in prison as part of his continued investigation and effort to identify the shooter in the Galvez murder case. Detective Pacheco showed Garcia a number of photographic lineups, but Garcia didn't identify any of the photos as the murderer.

In November 2013, Detective Pacheco found a phone number in a search of Garcia's cellphone and used it to identify the person who negotiated the failed marijuana purchase-Exson Deshommes. Pacheco showed Deshommes an array of six color photographs, one of whom was Mathieu. Deshommes identified Mathieu by circling his photo in the array and writing "I selected photo number five as the person who was the shooter." Deshommes also gave Pacheco additional details regarding the shooting that culminated in the victim's death.

The following day, Pacheco visited Garcia at the correctional facility where he was serving his sentence. Pacheco showed Garcia another array of six color photographs prepared after Pacheco's interview with Deshommes, with a photograph of Mathieu included in the array. After Pacheco gave Garcia standard warnings that the array might or might not include a suspect, Garcia identified Mathieu's photo as a photograph of the shooter.

Additional investigation identified another suspect as the driver of the white Pontiac claimed to have transported Mathieu on the day, and at the moment, of the shooting. That suspect's mother owned a white Pontiac matching the description given by an eyewitness to the traffic chase. That eyewitness saw the white Pontiac speed alongside the Jeep Cherokee and the loss of control by the shooting victim. The eyewitness also heard the gunshots and then stopped to assist the wounded victim and Garcia. The suspected driver of the white Pontiac at the time of the July 30, 2011, shooting was issued traffic citations driving that car on July 1 and August 9, 2011.

C. Trial

At trial, these facts were described by the witnesses and additional forensic experts regarding the manner and causes of the victim's death. Notably, however, Garcia admitted his many prior felonies, his lies to the police prior to his plea deal in order to "save himself," and his consumption of marijuana and Xanax the day of the shooting. Garcia was seven inches off in his testimony regarding Mathieu's height (testimony, five feet, seven inches; actual height, six feet, two inches). But Garcia expressed 100% certainty regarding his identification of Mathieu's photo.

The matchmaker for the ill-fated drug transaction/robbery, Exson Deshommes, also testified as a State witness. Deshommes had picked Mathieu out of a photo array and was the first to identify him to Detective Pacheco as the shooter. Deshommes testified at a pretrial deposition that he had been diagnosed as a schizophrenic.

At trial, portions of Deshommes' testimony were inconsistent with his prior sworn statement and pretrial deposition. He testified, for example, that he had identified Mathieu's photo in order to avoid arrest, and he denied that the man in the picture had told Deshommes about the reasons the victim was shot. Deshommes also said he didn't feel the person in the photo was the person he previously identified. He testified that he couldn't remember what he had told the police before trial or statements he had made during his pretrial deposition. He threatened to sue the trial court, and he went from the witness stand to the jury box to shake a juror's hand as his testimony concluded. The defense moved to strike Deshommes' testimony in its entirety, contending that the State called Deshommes just to impeach him with his own prior out-of-court testimony.

The trial court denied the defense objections and motion to strike Deshommes' testimony. The jury returned a verdict of guilt on each charge. The trial court sentenced Mathieu to 35 years in prison, followed by probation. This appeal followed.

II. Analysis

The trial court's ruling on the admissibility of evidence is reviewed under the abuse of discretion standard. Bearden v. State, 161 So.3d 1257, 1263 (Fla. 2015). An error in interpreting a rule of evidence, however, is subject to de novo review. Id.

Mathieu contends in this case that the trial court erred by allowing the State to call Deshommes as a witness at trial for the primary purpose of impeaching him with otherwise inadmissible hearsay, notwithstanding timely objections and a motion to strike. The Florida Supreme Court's recent discussion on this legal issue is found in Bradley v. State, 214 So.3d 648, 655-56 (Fla. 2017) :

We held in Morton v. State, 689 So.2d 259, 264 (Fla. 1997), receded from on other grounds in Rodriguez v. State, 753 So.2d 29 (Fla. 2000), that a party may not call a witness primarily for the purpose of getting an inadmissible statement before the jury as impeachment:
[I]f a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded. On the other hand, a party may always impeach its witness if the witness gives affirmatively harmful testimony. In a case where a witness gives both favorable and unfavorable testimony, the party calling the witness should usually be permitted to impeach the witness with a prior inconsistent statement.... In addressing these issues, trial judges must have broad discretion in determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or confusion.
Id. To determine whether a party has called a witness for the primary purpose of introducing impeachment, Florida courts consider the following: (1) whether the witness's testimony affirmatively harmed the calling party, and (2) whether the impeachment of the witness was of de minimis substantive value. See Felton v. State, 120 So.3d 126, 129 (Fla. 4th DCA 2013) ; Bleich v. State, 108 So.3d 1132, 1133 (Fla. 5th DCA 2013). Where a witness gives relevant testimony probative of facts in dispute in addition to the impeachment, we have found no error. See Wade v. State, 156 So.3d 1004, 1021-22 (Fla. 2014) ; Dennis v. State, 817 So.2d 741, 761 (Fla. 2002).

In 2013, about three years before trial, Deshommes provided a positive identification of Mathieu (though without confirming his name), in a photo array presented to him by Detective Pacheco. Deshommes circled Mathieu's photo and wrote, in his own handwriting, "I selected photo number five as the person who was the shooter." In a pretrial sworn statement, Deshommes confirmed that Mathieu, "the black guy," had admitted to Deshommes that he was the person who shot the victim, while the "white boy" was driving the white Pontiac.

A day after Deshommes identified Mathieu in the photo array, another array containing the photo was shown to Garcia and Garcia also identified Mathieu as the shooter.

During his deposition taken nearly three years after being interviewed by Pacheco and circling Mathieu's photo, but only a month before trial, Deshommes had a more tangled recollection of some of the events, but he admitted that he circled Mathieu's photo and annotated the array in his own handwriting. He also confirmed key portions of his prior recollection as to the events of the drug transaction and Mathieu's later description of Garcia's attempt to rob Mathieu followed by the shooting.

At trial, Deshommes initially provided most of the identification evidence the State sought to adduce: the circled photo of Mathieu; that this was the person sent to buy drugs from Garcia on the day of the shooting; and that he had previously identified that person as the shooter. Deshommes' vacillation during his trial testimony was confusing and may have reduced his credibility, but the veteran trial judge properly considered and denied the defense request to strike the testimony altogether. The trial judge concluded that the State was surprised by the harmful answers in parts of Deshommes' trial testimony, and "there was plenty of stuff in this [deposition] transcript and in his testimony that was necessary for this case."

Ultimately the trial court ruled that the State did not call Deshommes "exclusively for-or even in large part to impeach him," and that the actual impeachment of Deshommes was of de minimis substantive value. The court properly applied the tests set forth in Bradley.

Our careful review of the record does not find support for Mathieu's argument that impeachment was the primary purpose behind the State's decision to call Deshommes as a witness at trial. The evidence provided by Deshommes confirmed the drug deal communications between Garcia and Mathieu and the identity of the driver of the white Pontiac. Garcia confirmed Mathieu's identity.

For these reasons, we reject Mathieu's contention that the trial court erred in denying the objections and motion to strike relating to Deshommes' testimony. The judgment and sentence below are affirmed.

      As to the denial of a challenged peremptory strike, the trial court carefully followed the three-step procedure detailed in Melbourne v. State, 679 So.2d 759 (Fla. 1996). Additionally, the defense did not renew its objection to the composition of the jury panel before its members were sworn; see Baccari v. State, 145 So.3d 958, 962-63 (Fla. 4th DCA 2014). As to the contention that the photo array identified by a witness was unduly suggestive, see State v. Joseph, 79 So.3d 49, 50-51 (Fla. 3d DCA 2011). The record does not establish that (a) "the police employed an unnecessarily suggestive procedure," and (b) the totality of the circumstances did not give rise "to a substantial likelihood of irreparable misidentification." Id.

      Detective Pacheco took over the investigation after the originally-assigned investigator was promoted, and after Garcia's plea agreement was effective.

      This was the color photograph challenged by Mathieu as "unduly suggestive" as his second point on appeal. The array was introduced as evidence at trial and made a part of the record here.

      Mathieu contends that Deshommes testified inconsistently as to whether Mathieu made an out-of-court admission that he was the shooter. Mathieu argued that the state improperly sought to impeach Deshommes with hearsay, based on Deshommes' recantation at trial regarding that admission.


text:
    Steven T. HUMPHREY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1577
    District Court of Appeal of Florida, Second District.
    Opinion filed October 31, 2018
    Steven T. Humphrey, pro se.
    ORDER RESTRICTING APPELLANT FROM FUTURE PRO SE FILINGS
   PER CURIAM.

By order of June 26, 2018, we dismissed Steven Humphrey's appeal for failure to comply with an order of this court. Our order detailed Humphrey's initiation of over thirty proceedings in this court related to his criminal charges in Hillsborough County circuit court case numbers 07-CF-18225, 09-CF-4658, and 09-CF-6161. We noted that his frequent and meritless filings and repeated failure to adhere to our orders burdened the limited resources of this court and interfered with the resolution of genuine disputes.

From 2011 to present, Humphrey has initiated over thirty proceedings in this court regarding his criminal charges in the aforementioned criminal case numbers. Humphrey filed nine appeals from the denials of motions for postconviction relief under Florida Rule of Criminal Procedure 3.850, which were either affirmed or dismissed, and Humphrey filed three petitions for writ of mandamus that were denied.

Aside from those cases, Humphrey has frequently failed to comply with multiple orders from this court, resulting in the dismissal of over twenty other proceedings. In these cases, this court was unable to determine its jurisdiction based on Humphrey's notices of appeal or petitions. Frequently, Humphrey's notices and petitions were riddled with extraneous information, including multiple case numbers and dates which compounded the difficulty of interpreting his filings. This court issued orders directing Humphrey to clarify which trial court orders he sought review of in each proceeding and often directed him to include only the pertinent case numbers in his response. However, Humphrey either failed to respond or his responses failed to comply with our orders, resulting in the dismissal of those proceedings.

Accordingly, we directed Humphrey to show cause why this court should not direct the clerk to reject pleadings in this court related to his three circuit court case numbers unless the filing is related to a pending appeal or submitted by a licensed Florida attorney. See State v. Spencer, 751 So.2d 47, 48-49 (Fla. 1999).

Humphrey filed a response that is similar to his other filings. It has multiple case numbers written in the margins and includes extraneous information and attachments. We have reviewed Humphrey's response and are unable to discern any argument that is responsive to our order to show cause. As such, we find that Humphrey has failed to show cause why he should not be prohibited from filing future pro se appeals related to his criminal charges stemming from the aforementioned Hillsborough County cases.

Accordingly, we direct the clerk of this court to place in an inactive file any notices of appeal related to circuit court case numbers 07-CF-18225, 09-CF-4658, and 09-CF-6161, unless the filing is signed by a member in good standing of The Florida Bar. See Spencer, 751 So.2d at 48-49 ; McKenna v. State, 161 So.3d 435 (Fla. 2d DCA 2014).

SILBERMAN, VILLANTI, and CRENSHAW, JJ., Concur.

      This court affirmed the appeal of his judgment and sentence without prejudice to file a motion for postconviction relief. See Humphrey v. State, 98 So.3d 251 (Fla. 2d DCA 2012).


text:
    Darcy SANTOS, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR the HOLDERS OF THE GSAA HOME EQUITY TRUST 2005-07, Appellee.
    No. 3D17-531
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Pomeranz & Associates, P.A. and Mark L. Pomeranz (Hallandale), for appellant.
    Akerman LLP, Nancy M. Wallace (Tallahassee), William P. Heller (Fort Lauderdale), and Eric M. Levine (West Palm Beach), for appellee.
    Before LOGUE, LUCK and LINDSEY, JJ.
   LUCK, J.

Darcy Santos appeals from a final judgment foreclosing a mortgage on her condominium. She claims various errors in the proceedings below which occurred before and after Ms. Santos filed her notice of appeal. We have no jurisdiction to address the rulings made after filing of the notice of appeal, and affirm the remaining issues directed to the final judgment.

Factual Background and Procedural History

In connection with her purchase of a condo unit at the Gates at Doral Isles, Ms. Santos executed a note and mortgage in favor of First National Bank of Arizona in the amount of $208,550 on January 27, 2005. On November 11, 2015, HSBC Bank USA brought the present action to foreclose the mortgage, alleging Ms. Santos defaulted on her mortgage by failing to make the October 2009 payment and all subsequent payments. Ms. Santos answered the complaint, HSBC replied to Ms. Santos' answer, and on December 15, 2016, the lower court issued an order setting the matter for non-jury trial on February 7, 2017. The order, which was served on Ms. Santos's counsel of record, indicated no continuance motions would be entertained on the day of trial.

In accordance with the trial order, HSBC filed its witness and exhibit lists, several affidavits, and a motion in limine. Nothing was filed on behalf of Ms. Santos. When the case was called for trial on February 7, neither Ms. Santos nor her counsel were present. The trial proceeded in their absence, concluding with the court entering a foreclosure judgment in favor of the bank that same day. We have not been provided with a transcript of the trial.

Ms. Santos then filed a verified motion to vacate the final judgment, together with attached affidavits and exhibits. Ms. Santos's counsel explained that the reason he failed to appear on February 7 was due to a clerical error by his staff. Apparently, clerical staff failed to docket the trial, mistakenly believing the trial order referred to a case to be tried in St. Lucie County on the same day. When the error was discovered on the date of trial, defense counsel asked plaintiff's counsel to request a short continuance so that he could drive back down to Miami. However, the trial judge disposed of the case without waiting. The motion argued the foreclosure judgment should be vacated on the grounds of excusable neglect, improper trial setting, and insufficient evidence of indemnification.

Before the trial court heard the motion to vacate, Ms. Santos filed her notice of appeal from the final judgment. At Ms. Santos's request, we relinquished jurisdiction for the trial court to consider the motion to vacate. The motion was heard and denied on April 27. On May 1, HSBC filed the trial court's order denying the motion with this court, requesting that we reassert appellate jurisdiction in the case. Ms. Santos did not amend her notice of appeal to include the order denying the motion to vacate. Nonetheless, Ms. Santos raises on appeal the same three issues argued in her motion to vacate.

Discussion

First, Ms. Santos argues the final judgment should have been vacated because her counsel's failure to appear for trial was due to excusable neglect. Next, she contends the case was not properly scheduled for trial because it was not at issue. Finally, she claims there was insufficient evidence to support the final judgment's finding on indemnification.

The trial court's ruling on the excusable neglect issue was announced via the May 1 order denying the motion to vacate. We do not have jurisdiction to review the May 1 order because Ms. Santos failed to file a notice appealing it. Florida Rule of Appellate Procedure 9.110 states, in pertinent part:

(d) Notice of Appeal .... The notice shall contain ... the date of rendition, and the nature of the order to be reviewed....
....
(h) Scope of Review. The court may review any ruling or matter occurring before filing the notice.

Pursuant to this rule, Florida appellate courts deny review of judicial acts occurring after the filing of a notice of appeal. See Forney v. Crews, 112 So.3d 741 (Fla. 1st DCA 2013) (determining appellate court was without authority to consider mandamus relief on denial of motion to disqualify judge entered after notice of appeal); Lauderdale Marine Ctr., Ltd. v. MYD Marine Distribs., Inc., 31 So.3d 256 (Fla. 4th DCA 2010) (declining to consider attorney's fees issues where attorney's fees hearing took place months after filing of notice of appeal); Freeman v. Velez, 8 So.3d 1285 (Fla. 4th DCA 2009) (same).

Even where the appellate court relinquishes jurisdiction to the trial court after a notice of appeal is filed, as we did in this case, return of jurisdiction to the appellate court does not automatically extend that jurisdiction to judicial acts which took place while jurisdiction was relinquished to the trial court. In such instances, the appellant must formally invoke the appellate court's jurisdiction to review the post-notice-of-appeal acts by filing a new notice of appeal or by amending its prior notice of appeal to include those acts. R.W. v. Department of Children and Families, 164 So.3d 15 (Fla. 1st DCA 2015) is instructive on this jurisdictional question.

In R.W., a mother appealed from a final judgment terminating her parental rights to her child based on a surrender of parental rights. Prior to filing her initial brief, the mother requested that the appellate court "relinquish partial jurisdiction to the trial court below for purposes of allowing the trial court to consider [her] motion for reconsideration of her surrender of parental rights." Id. at 16. The First District treated the request as one to allow the trial court to rule on a motion for relief from judgment and relinquished jurisdiction to the trial court. Thereafter, the trial court held an evidentiary hearing at which it found there was no duress or fraud that caused the mother's voluntary surrender of parental rights. The mother then filed a status report informing the appellate court of the trial court's ruling and requesting that it "proceed with the appeal on the merits." Id. at 17. The appellate court noted the status report and ordered the mother to file her initial brief. In its opinion, the First District affirmed issues directly related to the final judgment of termination, but dismissed, for lack of jurisdiction, the issue challenging the post-notice ruling because the mother did not file a separate notice of appeal as to the denial of the post-judgment motion.

Regarding the effect of the relinquishment, the R.W. court explained:

We recognize that we relinquished jurisdiction to the trial court to rule on the motion for reconsideration. That, however, has no bearing on our jurisdiction to review the trial court's ruling on the motion. Indeed, absent an appeal of the order on the motion for relief from judgment, we are unaware of any authority that would allow an otherwise unpreserved issue raised in a post-judgment motion to be considered in the appeal of the underlying judgment simply by virtue of the appellate court having relinquished jurisdiction for a ruling on such a motion.

Id. at 18 (citations omitted); see also Davis v. State, 174 So.3d 646 (Fla. 1st DCA 2015) (refusing to consider denial of motion to disqualify the judge entered after appellate court relinquished jurisdiction for the trial court to consider a motion to mitigate defendant's sentence where defendant filed a status report simply requesting that appeal be put back on the docket); Jefferson v. State, 440 So.2d 20, 22 n. 1 (Fla. 1st DCA 1983) (explaining that proper procedure when appellate court relinquishes jurisdiction to trial court to determine issue of ineffective assistance of counsel is to file a new notice of appeal if trial court denies relief).

Without a proper notice of appeal, this court has no jurisdiction to review the trial court's denial of Ms. Santos's motion to vacate and may address only matters determined by the final judgment itself. Because defense counsel's excusable neglect was argued in the motion to vacate, we dismiss the appeal as to this issue for lack of jurisdiction.

Turning to Ms. Santos' argument that the trial court erred in setting the case for trial because it was not at issue, we find no merit to the argument. Ms. Santos answered the complaint asserting several affirmative defenses. In its reply to those affirmative defenses, HSBC stated that any defenses amounting to mere conclusions of law without supporting factual allegations which should be stricken. This statement alone does not constitute a motion to strike an affirmative defense. See Fla. R. Civ. P. 1.100(a), (b) ("If an answer ... contains an affirmative defense and the opposing party seeks to avoid it, the opposing party must file a reply containing the avoidance.... An application to the court for an order must be by motion which must be made in writing ..., must state with particularity the grounds for it, and must set forth the relief or order sought."); Id. R. 1.140(b), (f) ("If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief, except that the objections of failure to state a legal defense in an answer or reply must be asserted by motion to strike the defense .... A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time."). As no motion to strike was formally made requesting an order from the court, the case was at issue and properly set for trial.

With regard to the remaining issue, i.e. that there was insufficient evidence to support the indemnity required under section 673.3091(2) of the Florida Statutes, our review is precluded by Ms. Santos's failure to provide a transcript of the trial. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

Conclusion

For the reasons stated, we dismiss this appeal on the issue relating to the denial of the motion to vacate and we affirm the final judgment of foreclosure.

Dismissed in part; affirmed in part.

      HSBC Bank is a successor in interest to the original lender.