author: Winokur, J.

text:
    B.S., Grandmother of P.S.A. and W.H.A., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-2515
    District Court of Appeal of Florida, First District.
    April 25, 2018 Rehearing Denied May 24, 2018
    Valarie Linnen, Atlantic Beach, for Appellant.
    Sarah J. Rumph, Appellate Counsel, Department of Children and Families, Tallahassee, for Appellee; Sara E. Goldfarb, Appellate Counsel, Guardian ad Litem Program, Sanford.
   Winokur, J.

Appellant, B.S., appeals the circuit court's dismissal of her petition for adoption of her grandchildren, P.S.A. and W.H.A., as well as the circuit court's denial of her motion for rehearing. Because we find that an adoption following a termination of parental rights (TPR) is governed by the Florida Rules of Juvenile Procedure, and because this appeal is untimely under those rules, we dismiss the appeal.

I.

In February 2014, the trial court adjudicated P.S.A. and W.H.A. dependent. The Department of Children and Families (DCF) created a case plan with the goal of family reunification, but the parents failed to reunify with the children. As a result, a permanent guardianship was established with an aunt and uncle. The guardianship order expressly limited B.S. to supervised visitation.

Two years later guardianship was revoked and both children were sheltered, due in part to B.S.'s unsupervised contact with the children. B.S.'s visitation rights were suspended. The trial court reinstated DCF's supervision two months later, incorporated a case plan goal of adoption, and reinstated B.S.'s supervised visitation. Upon DCF's petition, the court terminated both parents' parental rights in November 2016.

A Unified Home Study advised against placing the children with B.S. Consequently, the trial court found that it was in the best interest of both children to remain in the custody of DCF.

In December 2016, upon motion of the Guardian Ad Litem Program (GAL), the court suspended B.S.'s supervised visitation and ordered that the children remain in the custody of DCF for the purpose of adoption. B.S. did not seek appellate review of the order suspending her visitation.

B.S. then filed a petition to adopt P.S.A. and W.H.A, and moved for reinstatement of her visitation rights. The trial court summarily denied the motion for reinstatement. On May 2, 2017, the trial court dismissed B.S.'s adoption petition, finding that the petition was simply a vehicle for B.S. to revisit the already-litigated issue of her visitation rights. On May 11, 2017, B.S. filed a motion for reconsideration and hearing. On May 25, 2017, the trial court denied the motion. On June 20, 2017, B.S. filed a notice of appeal.

II.

GAL argues that B.S.'s notice of appeal was untimely because it was not filed within thirty days of rendition of the May 2, 2017 order dismissing the adoption petition. B.S. argues that her motion for reconsideration tolled rendition until the court denied it on May 25, 2017, so the June 20, 2017 notice of appeal was timely.

A party has thirty days from rendition of an order to file a notice of appeal. Fla. R. App. P. 9.110(b). Unless another applicable rule of procedure specifically provides to the contrary, an authorized and timely motion for rehearing of the order tolls rendition until a written order is issued disposing of the motion. Fla. R. App. P. 9.020(i)(1).

The Florida Family Law Rules of Procedure contain no provision regarding tolling of orders until a motion for rehearing is resolved. As such, a motion for rehearing of an order subject to the Family Law Rules tolls rendition, in accordance with Florida Rule of Appellate Procedure 9.020(i)(1). In contrast, the Florida Rules of Juvenile Procedure explicitly state that a motion for rehearing "shall not toll the time for the taking of an appeal." Fla. R. Juv. P. 8.265(b)(3). Accordingly, if the Family Law Rules of Procedure govern the order under review, this appeal is timely, but if the Rules of Juvenile Procedure govern the order, the appeal is untimely because B.S. did not file this appeal until forty-nine days after the order under review was rendered.

The Family Law Rules of Procedure govern family law actions, including adoptions, "except as otherwise provided by the Florida Rules of Juvenile Procedure or the Florida Probate Rules." Fla. Fam. L. R. P. 12.010(a)(1). The Rules of Juvenile Procedure "govern the procedures in the juvenile division of the circuit court ... [and] the procedures for dependency cases in the juvenile court ." Fla. R. Juv. P. 8.000 (emphasis added).

Because dependency cases are governed by the Rules of Juvenile Procedure, a motion for rehearing does not toll the time for filing a notice of appeal in dependency cases. In re A.W.P., Jr. , 14 So.3d 1240 (Fla. 2d DCA 2009) ; In Interest of Baby Boy L. , 545 So.2d 434 (Fla. 4th DCA 1989). This rule is consistent with legislative intent that dependency proceedings are not prolonged so "that permanent placement with the biological or adoptive family is achieved as soon as possible for every child in foster care and that no child remains in foster care longer than 1 year." § 39.001(1)(h), Fla. Stat.

Adoptions are governed by Chapter 63 of the Florida Statutes. However, section 63.037, Florida Statutes, provides that "[a] case in which a minor becomes available for adoption after the parental rights of each parent have been terminated by a judgment entered pursuant to chapter 39 shall be governed by s. 39.812 and this chapter " (emphasis added). Chapter 39 sets out requirements for dependency proceedings, which again, are governed by the Rules of Juvenile Procedure. See § 39.013(1), Fla. Stat. ("All procedures, including petitions, pleadings, subpoenas, summonses, and hearings, in [chapter 39] shall be conducted according to the Florida Rules of Juvenile Procedure unless otherwise provided by law.").

III.

B.S. argues that, because adoptions are governed by Chapter 63, the Family Law Rules of Procedure apply. Post-TPR adoption proceedings, however, are governed by the Rules of Juvenile Procedure.

First, as noted above, section 63.037 specifically references section 39.812. Subsection (5) of this statute establishes the procedures for adoption following TPR, requiring that a post-TPR adoption petition be filed in the court that terminated parental rights. § 39.812(5), Fla. Stat. The parental rights to P.S.A. and W.H.A. were terminated as a result of a dependency case in the juvenile division of Santa Rosa County Circuit Court. Indeed, B.S.'s adoption petition was filed in the same juvenile division. Again, the Rules of Juvenile Procedure control in juvenile court and in dependency proceedings.

Second, the fact that Chapter 63 governs adoptions does not alter this conclusion. The procedures and substantive rights governing TPR proceedings are codified in Chapter 39. Moreover, section 39.013(1) clearly states that "all procedures" in chapter 39 are governed by the Florida Rules of Juvenile Procedure.

Section 39.813 provides that "[t]he court which terminates the parental rights of a child who is the subject of termination proceedings ... shall retain exclusive jurisdiction in all matters pertaining to the child's adoption pursuant to chapter 63."

See also Fla. R. Juv. P. 8.535(c) ; B.B. v. Dep't of Children & Families , 854 So.2d 822, 825 (Fla. 1st DCA 2003) ("The dependency court is not divested of jurisdiction after a TPR trial simply because subsequent adoption proceedings will be conducted pursuant to Chapter 63"). Consequently, the juvenile division of Santa Rosa County retains sole jurisdiction of B.S.'s adoption petition. Because the juvenile court retains jurisdiction, the Rules of Juvenile Procedure apply.

B.S. correctly notes that section 39.812(5), while directing parties to file a petition for adoption following TPR in the dependency division of the circuit court, requires that an adoption proceeding under that subsection "is governed by Chapter 63." This does not mean, however, that Chapter 63, and by extension the Family Law Rules of Procedure, control these proceedings. Because the proceeding remains in dependency court, the Rules of Juvenile Procedure must apply. More importantly, we have previously found that this sentence in section 39.812(5) means only that the standards of Chapter 63 govern the adoption, even if the procedure is controlled by Rules of Juvenile Procedure. See e.g. Dep't of Children & Family Servs., v. P.S. , 932 So.2d 1195 (Fla. 1st DCA 2006) ; I.B. v. Dep't of Children & Families , 876 So.2d 581 (Fla. 5th DCA 2004). While substantive rights governing post-TPR adoptions remain in chapter 63, the procedures regarding post-TPR adoptions fall within the ambit of Chapter 39. If not, there would have been no need for the Legislature to codify section 63.037 differentiating post-TPR adoptions from other forms of adoption. Section 39.812(5) would be equally superfluous. Every provision enacted by the Legislature must be given effect.

IV.

In conclusion, the proceedings involving P.S.A. and W.H.A. are in dependency court, which included the termination of their parents' parental rights. Consequently, B.S.'s adoption petition falls within the procedural requirements of dependency court, specifically chapter 39. As such, the Florida Rules of Juvenile Procedure applied to the order below. Pursuant to Florida Rule of Juvenile Procedure 8.265(b)(3), B.S.'s motion for reconsideration did not toll the time to appeal the trial court's dismissal of her adoption petition. Thus, B.S.'s notice of appeal is untimely. We, therefore, dismiss this appeal for lack of jurisdiction.

DISMISSED .

Roberts and Rowe, JJ., concur.

      All the proceedings in this dependency case took place in the juvenile division of the circuit court for Santa Rosa County.

      See State v. Goode , 830 So.2d 817, 824 (Fla. 2002) (noting that "a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PNC BANK NATIONAL ASSOCIATION, Appellant, v. Courtney ROBERTS and Carol Roberts, Appellees.
    Case No. 5D16-3341
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 27, 2018
    William L. Grimsley, N. Mark New, II, Kimberly Held Israel and Gabriel M. Hartsell, of McGlinchey Stafford, Jacksonville, for Appellant.
    Michael A. Saracco, of Saracco Law, Cocoa, for Appellees.
   PER CURIAM.

PNC Bank National Association (Bank) appeals the involuntary dismissal of its foreclosure complaint against Courtney and Carol Roberts (Borrowers), after the trial court found that Bank failed to produce competent, substantial evidence showing it complied with the condition precedent to acceleration and foreclosure in paragraph 22 of the mortgage. Paragraph 22 required Bank to send Borrowers a notice informing them that the loan was in default at least thirty days before accelerating the loan. Because Borrowers' affirmative defense that the acceleration letters were not mailed was waived, and Bank offered competent, substantial evidence that the acceleration letters were mailed, we reverse.

On August 23, 2002, Borrowers executed a promissory note in the amount of $509,900 in favor of Fidelity Federal Bank & Trust to fund construction of a new home. The note was secured by a mortgage on the property in favor of Fidelity Federal Bank & Trust. Borrowers later obtained an additional $284,100 in loans from National City Mortgage Co., after which the parties agreed to a mortgage modification agreement increasing the principal due on the note and mortgage to $794,000.

In 2009, Borrowers defaulted on the loan. As a result, on January 7, 2010, Bank sent Borrowers two acceleration letters stating that the loan was in default because Borrowers had missed the payment due on September 1, 2009, and all subsequent payments. The letters gave Borrowers until February 6, 2010, to cure the default. When Borrowers failed to cure the default, Bank filed its complaint to foreclose the mortgage.

In their amended answer, Borrowers generally denied all of the allegations in the foreclosure complaint and specifically denied that Bank complied with the conditions precedent to accelerate the loan. They raised twenty-seven affirmative defenses, the fourth of which stated:

As a fourth affirmative defense, defendant states that plaintiffs failed to perform conditions precedent to the initiation of this action and or for acceleration of payment allegedly due. As a result, defendant has been denied a good faith opportunity, pursuant to the mortgage and the servicing obligations of the plaintiff to avoid acceleration and this foreclosure. More specifically, Plaintiff has failed to perform conditions precedent by failing to comply with paragraph 22 of the subject mortgage and failing to comply with the notice requirements in the mortgage.

Thereafter, Bank sought to obtain more information about Borrowers' fourth affirmative defense through an interrogatory that asked Borrowers to "state all facts that support [y]our fourth affirmative defense that there has been a failure of conditions precedent." Borrowers responded to the interrogatory by stating under oath, "[t]he note was cancelled and no conditions precedent exist." Another interrogatory requested the factual basis for all of the twenty-seven affirmative defenses. Borrowers responded with only the short notation, "[p]aid + cancelled note."

Bank argues that Borrowers waived their fourth affirmative defense with these interrogatory responses. "A litigant may abandon any defense he elects to abandon, and the defendant in a civil suit may waive any right he chooses, generally simply by never asserting it." State v. Fla. Nat'l Props., Inc., 338 So.2d 13, 19 (Fla. 1976) (Hatchett, J., concurring, in part, and dissenting, in part). For instance, affirmative defenses can be waived if they are not listed in the pretrial order or through a statement to the jury during closing arguments. Cooke v. Ins. Co. of N. Am., 652 So.2d 1154, 1156 (Fla. 2d DCA 1995) ; Vendola v. S. Bell Tel. & Tel. Co., 474 So.2d 275, 279-80 (Fla. 4th DCA 1985). Moreover, while there is no Florida case law on waiver of defenses through interrogatory responses, other states that have addressed the issue have found that interrogatory responses made under oath are binding and can waive a defense. See Young v. Guild, 7 So.3d 251, 261-62 (Miss. 2009) ("Young's denial in her discovery response was binding on her; she waived her right to an apportionment instruction."); Coho Res., Inc. v. McCarthy, 829 So.2d 1, 24 (Miss. 2002) (holding that failure to identify other tortfeasors in response to interrogatory requesting identity of any parties defendant believed caused the accident waived right to apportion fault to another tortfeasor); Allstate Indem. Co. v. Brown, 696 N.E.2d 92, 97 (Ind. Ct. App. 1998) (finding waiver of issue on "consent to sue" clause in insurance contract because insurer's "complaints and its responses to interrogatories gave [plaintiff] no reason to believe that he had failed to comply with the policy terms" (citing Indiana Ins. Co. v. Noble, 148 Ind.App. 297, 265 N.E.2d 419, 435 (1970) ) ). We see no reason to hold differently here and conclude Borrowers' assertion that "no conditions precedent exist" in their answer to Bank's interrogatory waived their fourth affirmative defense. Thus, the trial court should not have considered it.

Waiver notwithstanding, Bank presented competent, substantial evidence at trial that it complied with paragraph 22 of the mortgage. Paragraph 22 requires Bank to send Borrowers a written acceleration letter informing them "that the loan is in default and the debt is being accelerated, how to cure the default by paying a specified amount, providing at least thirty days within which to cure, and other important information." Figueroa v. Fed. Nat'l Mortg. Ass'n, 180 So.3d 1110, 1116 (Fla. 5th DCA 2015). Under paragraph 15 of the mortgage, the acceleration letter must be sent by first-class mail or be actually delivered to Borrowers at the property address or, if designated, their notice address. Id. A rebuttable presumption of receipt arises if it is sent by first-class mail. See Progressive Express Ins. Co. v. Camillo, 80 So.3d 394, 402 (Fla. 4th DCA 2012) ("Proof of mailing of a document to the correct address creates a presumption that the item mailed was, in fact, received.").

In addition to admitting the acceleration letter into evidence, there must also be competent, substantial evidence that the acceleration letters were actually sent to Borrowers. See Ensler v. Aurora Loan Servs., LLC, 178 So.3d 95, 97 (Fla 4th DCA 2015). "[M]ailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt." Allen v. Wilmington Tr., N.A., 216 So.3d 685, 688 (Fla. 2d DCA 2017) (citing Burt v. Hudson & Keyse, LLC, 138 So.3d 1193, 1195 (Fla. 5th DCA 2014) ).

Bank successfully admitted into evidence copies of the acceleration letters and the payoff statement as of November 2015. It also presented the testimony of its default loan specialist and mortgage officer, Dorothy Thomas, who had worked for Bank since 2009. Thomas testified that she obtained copies of the acceleration letters from Bank's archival system and reviewed them for accuracy. She testified that Bank, through a person with knowledge, created the acceleration letters at or near the time of the event reflected in the letter in the ordinary course of business and that the letter was kept in the normal course of business.

Thomas testified that Bank creates the letter by ordering it from an outsourcing vendor named Venture, which prints the acceleration letters, folds them, places them in a window envelope, seals the envelopes, affixes postage, and mails them by first-class mail. Venture then provides Bank a report showing which letters were mailed.

While the dates on the acceleration letters are evidence only as to when the letters were drafted and do not show whether or when they were sent, see Allen, 216 So.3d at 687-88 (citing Burt, 138 So.3d at 1195 ), Thomas's personal knowledge of Bank's and Venture's routine business practices and policies for acceleration letters mailed in 2010, when the pertinent acceleration letters were mailed, coupled with the admission of the acceleration letters, constitutes competent, substantial evidence that the acceleration letters were actually mailed to Borrowers in this case. § 90.406, Fla. Stat. (2009) ; Brown v. Giffen Indus., Inc., 281 So.2d 897, 899-900 (Fla. 1973) ; CitiBank, N.A. for WAMU Series 2007-HE2 Tr. v. Manning, 221 So.3d 677, 681-82 (Fla. 4th DCA 2017) ; Allen, 216 So.3d at 688 (citing CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) ); State Farm Fire & Cas. Co. v. Higgins, 788 So.2d 992, 1007 (Fla. 4th DCA 2001) (citing Best Meridian Ins. Co. v. Tuaty, 752 So.2d 733, 735 (Fla. 3d DCA 2000) ). The trial court erred in concluding otherwise.

Accordingly, we reverse the final judgment entered in favor of Borrowers and remand for entry of final judgment in favor of Bank.

REVERSED and REMANDED.

SAWAYA, BERGER and WALLIS, JJ., concur.

      On April 14, 2007, Fidelity Federal Bank & Trust merged with National City Mortgage Co. On October 1, 2008, National City Mortgage Co. merged with National City Bank. National City Bank was acquired by Bank on November 6, 2009.

      One acceleration letter was addressed to Courtney Roberts and the other was addressed to Carol Roberts.

      Prior to working for Bank, Thomas spent seventeen years working for National City Bank.

      Additionally, Borrowers can show no prejudice because there is no evidence they attempted to cure the default at any point. See Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 47 (Fla. 5th DCA 2015) (citing Allstate Floridian Ins. Co. v. Farmer, 104 So.3d 1242, 1248-49 (Fla. 5th DCA 2012) ).


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    HSBC BANK USA, NATIONAL ASSOCIATION, as trustee FOR DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST, SERIES 2007-OA5, Appellant, v. Clare NELSON a/k/a Clare Beeman; Randy Beeman a/k/a Randolph S. Beeman; Emily Beeman f/k/a Jane Tenant; and National City Bank, Appellees.
    Case No. 2D17-740
    District Court of Appeal of Florida, Second District.
    Opinion filed April 27, 2018
    Steven J. Brotman and Douglas A. Goldin of Locke Lord LLP, West Palm Beach, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellees Clare and Randolph Beeman.
    No appearance for remaining Appellees.
   ROTHSTEIN-YOUAKIM, Judge.

HSBC Bank USA, N.A., as trustee for Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-OA5 (HSBC), appeals an order dismissing HSBC's foreclosure action without prejudice. Because the trial court erred in concluding that Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009 (Fla. 2016), required dismissal of HSBC's action, we reverse.

On August 8, 2008, HSBC filed a foreclosure complaint alleging that Claire Nelson (a.k.a. Claire Beeman) and Randolph Beeman (the Beemans) had failed to make the mortgage payment "due April 1, 2008[,] and all subsequent payments." On May 6, 2011, the trial court dismissed the action without prejudice based on HSBC's failure to retain counsel and failure to appear at a case management conference.

On February 7, 2013, HSBC filed the action at issue in this appeal. In the new complaint, HSBC again alleged that the Beemans had failed to make the mortgage payment "due April 1, 2008[,] and all subsequent payments." The Beemans filed a motion for summary judgment, arguing that, per Bartram, "the action is barred by Plaintiff's failure to base this action on default dates post-dating the dismissal of the 2008 action." The Beemans also argued that they were entitled to summary judgment based on HSBC's asserted failure to comply with paragraph 22 of the mortgage, and they filed evidence in support of that argument.

Persuaded by the Bartram argument, the trial court granted the Beemans' motion for summary judgment and granted the specific relief that they requested-dismissal of the second action, again without prejudice. The court expressly declined to address the paragraph 22 argument.

We review de novo the trial court's dismissal of HSBC's February 7, 2013, action on statute-of-limitations grounds, cf. Xavier v. Leviev Boymelgreen Marquis Developers, LLC, 117 So.3d 773, 775 (Fla. 3d DCA 2012) ("A trial court's ruling on a motion to dismiss based on the statute of limitations is a question of law reviewed de novo."), and we conclude that the trial court erred in dismissing that action based on Bartram. In that opinion, the supreme court stated that "a dismissal without prejudice would allow a mortgagee to bring another foreclosure action premised on the same default as long as the action was brought within five years of the default." Bartram, 211 So.3d at 1020 (emphasis added). The Beemans do not dispute that after the dismissal without prejudice of the August 8, 2008, action, HSBC filed its February 7, 2013, foreclosure action within five years of the April 1, 2008, default.

Moreover, HSBC's February 7, 2013, complaint alleged a continuing default "in that the payment due April 1, 2008[,] and all subsequent payments have not been made." (Emphasis added.) Thus, regardless of whether HSBC's August 8, 2008, complaint was dismissed with or without prejudice, its February 7, 2013, complaint alleged a separate and distinct default entitling it to pursue foreclosure, notwithstanding that that complaint also still alleged the pre-dismissal defaults. See Desylvester v. Bank of N.Y. Mellon ex rel. Holders of Alt. Loan Tr. 2005-62, Mortg. Pass-Through Certificates Series 2005-62, 219 So.3d 1016, 1020 (Fla. 2d DCA 2017) ("We recognize that in the underlying action the Bank alleged that the borrowers defaulted on the note by failing to make the payment due on October 1, 2008, 'and all subsequent payments due thereafter.' Granted, the October 1, 2008, date was the date alleged as the date of the initial default in the first foreclosure action, and this date was outside the period of the five-year statute of limitations. Nevertheless, the allegations of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations."), rev. denied, No. SC17-1312, 2018 WL 1136532 (Fla. Mar. 2, 2018) ; HSBC Bank USA, Nat'l Ass'n, for Registered Holders of Nomura Home Equity Home Loan, Inc. v. Estate of Petercen, 227 So.3d 640, 642-44 (Fla. 4th DCA 2017) (rejecting trial court's conclusion that Bartram bars subsequent foreclosure action when complaint alleges same beginning date of continuing default as alleged in prior foreclosure action that was dismissed); Forero v. Green Tree Servicing, LLC, 223 So.3d 440, 443-44 (Fla. 1st DCA 2017) (explaining that although complaint at issue and complaints in two previously dismissed actions all alleged "December 1, 2008[,] and all subsequent payments" as default period, actual defaults upon which previous actions were based did not include additional defaults at issue in third action, even though same language was used in each complaint to describe default period). Accordingly, the trial court in this case erred in concluding that Bartram compelled dismissal.

In holding that reversal is warranted on that basis, we decline the Beemans' invitation to apply the tipsy coachman doctrine to affirm based on HSBC's asserted failure to comply with paragraph 22 of the mortgage agreement. As an initial matter, we note that the trial court expressly declined to address this argument, and this court "cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so." Salazar v. Hometeam Pest Def., Inc., 230 So.3d 619, 622 (Fla. 2d DCA 2017) (quoting Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) ); see also Bryant v. Fla. Parole Comm'n, 965 So.2d 825, 825 (Fla. 1st DCA 2007) ("We decline the Parole Commission's invitation to employ the 'tipsy coachman' rule .... The circuit court made no factual findings ..., and it would be inappropriate for us to do so in the context of this appeal.").

More fundamentally, however, that argument is outside the scope of our review on this appeal. As noted above, in granting the Beemans' "motion for summary judgment," the trial court granted them the exact relief that they requested: it dismissed HSBC's complaint without prejudice. But as this court has observed, "Motions to dismiss and for summary judgment are not interchangeable, and one may not be substituted for another." U.S. Bank Nat'l Ass'n ex rel. Holders of Home Equity Asset Tr. 2002-4 Home Equity Pass-Through Certificates, Series 2002-4 v. Doepker, 223 So.3d 1083, 1084 (Fla. 2d DCA 2017) (citing Holland v. Anheuser Busch, Inc., 643 So.2d 621, 622-23 (Fla. 2d DCA 1994) ). And "the character of a motion will depend upon its grounds or contents, and not on its title." Jones v. Denmark, 259 So.2d 198, 200 n.1 (Fla. 3d DCA 1972).

Consequently, notwithstanding the trial court's granting of the Beemans' "motion for summary judgment," we are actually here-at the Beemans' behest-on appeal from the court's order of dismissal, and our review is confined to the four corners of the February 7, 2013, complaint and the arguments pertaining thereto. See Green v. Cottrell, 204 So.3d 22, 30 (Fla. 2016) ("The review of an order granting a motion to dismiss is confined to the four corners of the complaint."). Because the Beemans' paragraph 22 argument necessarily would require us to consider the affidavits and other evidence filed in conjunction with the Beemans' motion and HSBC's response, we may not consider it here. The Beemans, however, are free to raise it as grounds for summary judgment on remand.

Accordingly, we reverse the order dismissing HSBC's foreclosure action and remand for further proceedings.

Reversed; remanded for further proceedings.

SILBERMAN and BLACK, JJ., Concur.


text:
    MAST CAPITAL, INC., Appellant, v. WHITEHALL REALTY ADVISORS, LLC, Appellee.
    No. 3D17-1394
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018.
    Hall, Lamb Hall & Leto, P.A. and Matthew P. Leto, Miami, for appellant.
    Pathman Lewis, LLP and Peter L. Meltzer and John A. Moore, Fort Lauderdale, for appellee.
    Before SALTER, EMAS and LINDSEY, JJ.
   PER CURIAM.

Affirmed. Rotemi Realty, Inc. v. Act Realty Co., Inc., 911 So.2d 1181, 1189 (Fla. 2005) ("[T]o earn a commission a broker must perform two essential tasks: First, the broker must 'initiate[ ] negotiations by doing some affirmative act to bring buyer and seller together.' Second, the broker must remain 'involved in the continuing negotiations between the seller and the buyer,' unless 'the seller and buyer intentionally exclude the broker from the negotiations.' " (citation omitted) ); Burchfield v. Realty Execs., 971 So.2d 138, 140 (Fla. 5th DCA 2007) ("In summary, we hold that section 475.278, Florida Statutes, replaces the common law fiduciary duty owed by a transaction broker to its clients with a more narrowly-defined set of statutory duties.").


author: LUCK, J.

text:
    Alfonso "Alfie" LEON, Appellant, v. Joe CAROLLO, et al., Appellees.
    No. 3D18-220
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    KYMP, LLP, Juan-Carlos "J.C." Planas and Matthew S. Sarelson, Miami, for appellant.
    Victoria Méndez, City Attorney and Forrest L. Andrews, Assistant City Attorney; Kuehne Davis Law, P.A., Benedict P. Kuehne and Michael T. Davis, Miami; Tania Cruz, P.A. and Tania Cruz Gimenez; Greenspoon Marder, P.A. and Joseph S. Geller (Fort Lauderdale); Coffey Burlington and Kendall Coffey, for appellees.
    Before, ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   LUCK, J.

As a general rule, Florida courts have no inherent power to determine an election contest after a candidate has been elected. The legislature created a narrow exception to the no-inherent-power rule for post-election challenges where the successful candidate is ineligible for the nomination or office in dispute. The issue in this case is whether the requirement in the Miami city charter that a city commission candidate reside in the district at least one year before the qualifying date is an eligibility requirement, and therefore, within the narrow exception created by the legislature. Because we conclude that it is not, the courts have no inherent power to determine this post-election contest based on Miami's one-year-residency requirement for city commission candidates, and the case was properly dismissed by the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 21, 2017, Joe Carollo won a run-off election against Alfonso "Alfie" Leon for the district three seat on the Miami city commission. The results were certified on November 27, and eight days later, Leon filed an emergency amended verified complaint contesting the election under Florida Statutes section 102.168(3)(b).

The complaint alleged that Miami city charter section 4(c) required commission candidates to reside in the district at least one year prior to qualifying for election. Carollo, Leon's complaint alleged, did not reside in district three within one year of the September 23, 2017 qualifying deadline for the commission election. Leon sought a judgment overturning the election because Carollo was ineligible to serve as the district three commissioner, and an order to rescind the certification of Carollo as the winner of the November 21 election.

The trial court held a four-day bench trial in January 2018. At the end of it, and after post-trial briefing, the trial court dismissed the lawsuit as an unauthorized and improper post-election challenge under section 102.68(3)(b) because the one-year-residency requirement was not an eligibility requirement to hold office. The trial court also concluded, on the merits, that Carollo had proven he resided in district three at least one year before qualifying for election.

Leon appeals both rulings. We do not address the merits of Leon's residency challenge because we agree with the trial court that the lawsuit was due to be dismissed as an unauthorized post-election challenge to Carollo's qualifications to run for office.

DISCUSSION

While at common law there was no right to a post-election challenge, the legislature added section 102.168(3)(b) to allow a post-election challenge based on the "[i]neligibility of the successful candidate for nomination or office in dispute." § 102.168(3)(b), Fla. Stat. (2017) ; see also Burns v. Tondreau, 139 So.3d 481, 485 (Fla. 3d DCA 2014) ("Because 'there is no common law right to contest elections, any statutory grant must necessarily be construed to grant only such rights as are explicitly set out.... In 1999, the Florida Legislature amended section 102.168 to allow for post-election challenges based on the successful candidate's ineligibility for the nomination or office in dispute." (quoting McPherson v. Flynn, 397 So.2d 665, 668 (Fla. 1981) ) ). In Burns, we explained what section 102.168(3)(b) means by a successful candidate's "ineligibility" for office.

Section 102.168(3)(b) ineligibility, we concluded in Burns, refers to "constitutional ineligibility"-"the constitutional requirement for holding the office sought." Burns, 139 So.3d at 484. Section 102.168(3)(b) allows a post-election challenge to "a candidate's constitutional eligibility to hold office." Id. For municipal candidates, like the Miami district three commissioner, we look to the city's constitution-its charter-for the eligibility requirements to hold office. See id. ("[T]he City is a municipality, and the paramount law of a municipality is its charter .... [Thus], the City's Charter establishes a person's eligibility to serve as mayor." (quotation omitted) ); see also id. at 487 ("[T]he Charter sets forth the constitutional eligibility requirements for holding the office at issue.").

The Burns court was careful to distinguish "constitutional eligibility" from qualification requirements, i.e., the "candidate's required steps to qualify to run for office." Id. Section 102.168(3)(b), we explained, does not allow post-election challenges to "the necessary, statutory steps" taken by the candidate "to qualify to run for office." Id."[Q]ualification issues," we said, "cannot be raised after an election has been held." Id. Therefore, any post-election challenge to a candidate's qualifications to run for office is not authorized by section 102.168(3)(b).

When faced, as here, with a section 102.168(3)(b) post-election challenge to election results, we are left with this question: does it challenge whether the winning candidate met the eligibility requirements in the constitution or charter for holding office; or does it challenge whether the winning candidate took the required steps to qualify to run for office. If the challenge is to the winning candidate's failure to meet the municipality's eligibility requirements for holding office, than it is a proper section 102.168(3)(b) attack on the candidate's "ineligibility." If the challenge is to the winning candidate's qualifications to run for office (the failure to meet one of the necessary, statutory steps to qualify to run for office), then it is an improper post-election challenge, and must be dismissed.

Leon contends that the requirement in section 4(c) of the Miami charter that commission candidates reside in the district "at least one (1) year before qualifying" is an eligibility requirement for holding office in the city of Miami, and Carollo did not live in district three for at least one year before he qualified for the election. We disagree with Leon, and agree with the trial court in its thorough and well-reasoned ruling that the requirement in section 4(c) that a commission candidate reside in the district at least one year before qualifying was a required step to qualify to run for office, rather than a "constitutional eligibility" requirement to hold office, and therefore, the court had no inherent power to hear Leon's section 102.168(3)(b) post-election challenge.

The plain language of Miami charter section 4(c)

We start with the best evidence of whether section 4(c) is an eligibility requirement to hold office or a qualification requirement to run for office-its text:

Qualifications of mayor and city commission; mayor, city commissioners, and other officers and employees not to be interested in contracts, etc.; franks, free tickets, passes or service . Candidates for mayor shall be residents of the city for at least one (1) year prior to qualifying and shall be electors therein. Further, candidates for the city commission shall have resided within the district at least one (1) year before qualifying and be electors in the district, and shall maintain residence in that district for the duration of their term of office. The mayor, city commissioners, and other officers and employees shall not be interested in the profits and emoluments of any contract, job, work or service for the municipality. The mayor or any city commissioner who shall cease to possess any of the qualifications herein required shall forthwith forfeit his or her office, and any such contract in which any member is or may become interested may be declared void by the city commission.

Section 4(c) provides that the one-year-residency requirement applies to "candidates for the city commission." By its own terms, the one-year-residency requirement is imposed on "candidates." There is no similar requirement for sitting "city commissioners."

The framers of the charter knew how to distinguish between requirements for "city commissioners" and those for "candidates," and did so in section 4(c). In the very next sentence after the one-year-residency requirement, the charter imposes on "city commissioners" the requirement that they "not be interested in the profits or emoluments of any contract, job, work, or service for the municipality." Not "candidates," but "city commissioners."

The framers of the charter also knew how to distinguish between residency requirements on "candidates" and ones for sitting officials. Section 4(c) imposes the one-year-residency requirement for "[c]andidates for mayor," as it does for "candidates for the city commission." Yet elsewhere in the charter the "mayor" is separately required to "resid[e] within the city at least one (1) year before qualifying." In section 4(c), "[c]andidates for mayor" must reside in the city at least one year before the qualifying date, and in section 4(b), the "mayor" must reside in the city at least one year before qualifying. There is no parallel provision for "city commissioners." The framers of the charter knew how to require that sitting elected officials reside in a particular place at least one year before an election, but chose not to include that requirement for "city commissioners." Only for "candidates for the city commission."

There are other clues in the charter that tell us the one-year-residency requirement is a qualification to run for office rather than an eligibility requirement to hold office. The title of section 4(c) says that what follows is a "[q]ualifications" provision. 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) ); Ex parte Knight, 52 Fla. 144, 41 So. 786, 788 (1906) ("The title is a part of the act, and should be construed as such in determining the subject designed to be regulated by the act."); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 221 (Thomas/West 2012) ("The title and headings are permissible indicators of meaning."). And other parts of the charter tell "persons desiring to run for the office of city commissioner" what they need to do to be "qualified as provided" in section 4(c).

Spence-Jones v. Dunn

Because the text of section 4(c) requires a one-year residency for "candidates for the city commissioner" and not for "city commissioners," and the title and other parts of the charter refer to section 4(c) as a qualification provision, that should be the beginning and the end of our answer that the one-year-residency provision is a qualification to run for office rather than an eligibility requirement to hold the office. See Schoeff v. R.J. Reynolds Tobacco Co., 232 So.3d 294, 313 (Fla. 2017) (Lawson, J., concurring in part and dissenting in part) ("[O]ur first (and often only) step in statutory construction is to ask what the Legislature actually said in the statute based upon the common meaning of the words used." (citation omitted) ); see also Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ("[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." (quotation omitted) ). But if we needed to look further at our precedent, it also supports the conclusion that section 4(c) is a qualification requirement to run for office.

We read it that way in Spence-Jones v. Dunn, 118 So.3d 261 (Fla. 3d DCA 2013). In Spence-Jones, the sitting Miami city commissioner filed to run for a third term. Id. at 262. A former city commissioner who had previously served in the same seat brought a declaratory judgment action "seeking to declare [the sitting commissioner] ineligible for re-election, alleging it would constitute an impermissible third consecutive term." Id.

The court, reading section 4(c), explained that "[t]he sole issue on appeal [was] a question of statutory interpretation." Id. The court found "no ambiguity in the charter provision," and "interpret[ed] it according to its plain meaning." Id."The charter," we said, "specifically identifies the qualifications required to run for office. Section 4(c), titled 'Qualifications for mayor and city commission,' states 'candidates for the city commission shall have resided within the district at least one (1) year before qualifying and be electors in that district, and shall maintain residence in that district during the duration of their term of office.' " Id. at 263 (emphasis in original) (quoting Miami, Fla., Charter, Part I.A. § 4(c) ). The Spence-Jones court interpreted the same unambiguous charter provision we have at issue in this case, and read it as the "qualifications required to run for office."

As if to drive the point home, the Spence-Jones court reiterated that "to qualify for election, the office seeker must have resided within the district for one year." Id. And, "[o]nce again," the court concluded, "the term 'qualified' relates to qualification for election." Id. We left no doubt in Spence-Jones that the one-year-residency provision in section 4(c) is a qualification requirement to run for office.

Burns v. Tondreau

Burns, too, dealt with a North Miami election provision almost identical to section 4(c) of the Miami city charter. There, as here, the unsuccessful candidate in a runoff election filed a post-election challenge under section 102.168(3)(b), alleging that the successful candidate failed to file the residency documentation required by North Miami's election code, and she "had not continuously resided in the City for at least one year prior to qualifying." Burns, 139 So.3d at 483. The city election code provided that:

(b) Any person seeking the office of mayor or councilperson must be a resident of the city and/or the respective district of North Miami for at least one (1) year prior to qualifying for office.
(1) All candidates shall submit a sworn affidavit at the time of qualifying that provides their current address of legal residence and affirms that they have met the residency requirements pursuant to this section. The affidavit shall be on a form provided by the city clerk acting as the supervisor of elections.
(2) In addition to filing the affidavit, candidates shall submit proof of residency which shall include one (1) of the following documents: voter's registration, driver's license, property tax receipt, homestead exemption, utility bill or lease agreement; all of which must have been in effect for at least one (1) year prior to qualifying.

Id. at 483 n.2 (emphasis added) (quoting North Miami, Fla. Code § 6-78(b) (2014) ).

This provision, we said, was part of the "qualification requirements necessary to run for office." Id. at 485. Because the unsuccessful candidate's challenge to the winning candidate's qualifications to run for office was post-election, rather than pre-election, we affirmed the trial court's dismissal of the unsuccessful candidate's post-election qualification challenge. "[G]enerally," we agreed, "courts have no inherent power to determine election contests nor do courts have jurisdiction to inquire into a person's qualification to run for office after that person had been duly elected." Id. (emphasis in original) (quoting from the trial court's order).

Here, section 4(c) is almost identical to the North Miami election code at issue in Burns. Section 4(c), like the North Miami election code, required candidates for the city commission to reside in the district at least one year prior to qualifying. Just as Burns read the North Miami election code as a qualification requirement to run for office, so too do we read the similar language in section 4(c) as a qualification to run for office. And just as Burns dismissed a post-election challenge based on the North Miami election code, so too must we affirm the dismissal of a similar challenge in this case. Burns, as the trial court noted in its ruling, compels a dismissal here.

CONCLUSION

Leon responds that if we read the section 4(c) one-year-residency requirement as a qualification to run for office, rather than an eligibility requirement to hold office, there would be no eligibility requirements for city commissioners. We disagree. We read other parts of the city charter to impose eligibility requirements on mayors, city commissioners, and other officeholders. And the Florida Constitution imposes eligibility requirements on all officeholders in the state. See, e.g., Fla. Const. § 4(a) ("No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.").

But even if there were no eligibility requirements for city commissioners, the voters of Miami, through their democratically-approved charter, have agreed on the structure of their government, and the rules by which they want their leaders to be elected and serve. Our role is to apply this law as it is written, and not to write-in requirements that are not there or to fix holes that are. See City of Miami Beach v. Berns, 245 So.2d 38, 40 (Fla. 1971) ("Our duty is to interpret this law as it is written and, if possible, do so in a manner to prevent its circumvention."); Fla. Ry. Co. v. Adams, 56 Fla. 294, 47 So. 921, 923 (1908) ("It is our duty to declare the law as it is written. We cannot undertake by a construction of the statute to add to it or to subtract from it. Its language is plain and unambiguous."). Doing so subverts our role in the separation of powers, and the will of the people of Miami in consenting to be governed by its founding document. Surely the people of Miami didn't mean to leave out the eligibility requirements in the city charter, Leon says. Surely they did, as evidenced by the text they voted on and approved, we say.

Reading the text of the section 4(c) one-year-residency requirement, and our decisions in Spence-Jones and Burns, we conclude, as the trial court did, that it is a qualification requirement to run for office. Because "courts have no inherent power to determine election contests nor do courts have jurisdiction to inquire into a person's qualification to run for office after that person has been duly elected,"

Burns, 139 So.3d at 485 (emphasis in original), and section 102.168(3)(b) does not allow a post-election challenge to a candidate's failure to meet the qualification requirements necessary to run for office, we affirm the trial court's dismissal.

Affirmed.

      Because we are not reaching the merits of Leon's claim, we do not address the arguments in the parties' briefs about the sufficiency of the evidence, the statute of limitations, unclean hands, and laches.

      There are three other grounds for post-election challenges,
      (a) Misconduct, fraud, or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the election....
      (c) Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.
      (d) Proof that any elector, election official, or canvassing board member was given or offered a bribe or reward in money, property, or any other thing of value for the purpose of procuring the successful candidate's nomination or election or determining the result on any question submitted by referendum.
      § 102.168(3)(a), (c)-(d), Fla. Stat. (2017), but Leon has not raised these other grounds and they are not at issue in this appeal.


author: FERNANDEZ, J. LUCK, J., concurring in part and dissenting in part.

text:
    Yasell SOSATAQUECHEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1755
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018 Rehearing Denied May 15, 2018
    Michelle Walsh, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before, FERNANDEZ, LUCK and LINDSEY, JJ.
   FERNANDEZ, J.

Yassell Sosataquechel appeals the trial court's summary denial of his 3.850 motion for post-conviction relief. Because the record before us does not conclusively refute one of Sosataquechel's three ineffective assistance of counsel claims, we affirm in part and reverse in part.

Sosataquechel was formerly a member of the U.S. Army. He alleges that on May 11, 2011, six months before he was to be deployed to Afghanistan, Sosataquechel flew home to visit his wife, Yuleyvi, to reveal to her that he decided to abandon the military because of the continual stress it placed on their relationship. Despite his belief that this would make Yuleyvi happy, she surprisingly attacked him instead. After Yuleyvi stabbed Sosataquechel three times, injured his chin, and broke his tooth, Sosataquechel fought back and killed her. Sosataquechel alleges he then cut his own wrists in an attempt to kill himself, however, he did not die and was arrested and charged with homicide upon arrival at the hospital. After he was transferred from the hospital to jail, Sosataquechel was placed in the jail's psychological wing and given several different medications over the next two years.

On May 17, 2013, Sosataquechel and the state entered into a plea agreement, whereby Sosataquechel entered a guilty plea to his second-degree murder charge in exchange for a forty-year sentence. In April 2015, Sosataquechel filed a 3.850 motion and asserted that his counsel had been ineffective because: 1) he did not advise Sosataquechel that he could have raised an affirmative defense of self-defense, 2) he advised Sosataquechel to reject the state's initial thirty-year plea offer because his counsel was certain the offer would only get lower, and 3) he failed to inform the court of the various medications Sosataquechel was taking at the time of the plea colloquy, even though defense counsel was fully aware of Sosataquechel's heavy medication schedule. Sosataquechel now appeals and argues that he is entitled to an evidentiary hearing because the record does not conclusively demonstrate that he is not entitled to relief or because his motion is legally sufficient. We agree with one of Sosataquechel's contentions.

A defendant is entitled to an evidentiary hearing on a motion for post-conviction relief if 1) the motion, files, and records in the case conclusively show the defendant is entitled to relief, or 2) the motion or claims are legally sufficient. See Patton v. State, 784 So.2d 380, 386 (Fla. 2000). If the record does not conclusively refute post-conviction claims of ineffective assistance of counsel, the defendant is entitled to an evidentiary hearing on those claims. See Rodriguez v. State, 777 So.2d 1143 (Fla. 3d DCA 2001).

For counsel to have been ineffective, a criminal defendant must demonstrate counsel's performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is defined as whether counsel's "ineffective performance affected the outcome of the plea process." See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

First, Sosataquechel contends that his counsel was ineffective because counsel failed to investigate and inform him that he could claim self-defense as a possible defense to the second-degree murder charge. Sosataquechel asserts that had he been so informed, he would not have pled guilty and would have instead chosen to go to trial. There is prejudice if a reasonable probability exists that, but for counsel's errors, the defendant would have chosen to go to trial instead of pleading guilty. The claim of ineffective assistance of counsel is facially sufficient on Sosataquechel's assertion that he would not have entered a plea of guilty, and instead would have chosen to go to trial, had counsel informed him of the claimed defense of self-defense. Sosataquechel's affirmative answer to the court's plea colloquy question about whether he had an adequate opportunity to discuss the facts of the case and defenses thereto does not adequately resolve his present claim as to the defense of self-defense. See Wright v. State, 675 So.2d 1009 (Fla. 2d DCA 1996).

With respect to his second claim, Sosataquechel alleges that his counsel was ineffective because he was advised to reject the state's initial thirty-year plea offer because a better offer would be given to him in the future. Under the Strickland test, prejudice is established when a defendant shows a reasonable probability existed that he would have accepted the state's plea offer and the state would not have withdrawn the offer, the court would have accepted the offer's terms, and the conviction or sentence would have been less severe than the ultimately-imposed judgment and sentence. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ; Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013). Sosataquechel claims that he only rejected the state's initial plea offer because his counsel assured him that its terms would become more favorable, not worse. Instead of decreasing in sentence length, the state's offer increased by ten years, which Sosataquechel was then forced to accept.

Lastly, Sosataquechel asserts that his counsel was ineffective because his counsel never informed the trial court that Sosataquechel was taking a multitude of medications both before and at the time of the plea colloquy, even though defense counsel knew Sosataquechel was taking them. We decline to address the second and third issues on appeal, as the record conclusively refutes Sosataquechel's claims.

We thus reverse the trial court's summary denial of Sosataquechel's 3.850 motion with respect to his first claim of ineffective assistance of counsel and remand for an evidentiary hearing on the claim that counsel did not discuss the defense of self-defense with Sosataquechel. We affirm the trial court's summary denial of Sosataquechel's 3.850 motion with respect to his second and third ineffective assistance of counsel claims without further discussion, as they are conclusively refuted by the record.

Affirmed in part, reversed in part, and remanded with instructions.

LINDSEY, J., concurs.

LUCK, J., concurring in part and dissenting in part.

Yasell Sosataquechel raised three claims in his motion for post-conviction relief: (1) "defense counsel was ineffective for failing to inform the defendant about available defense [sic] to the charge before advising defendant to enter a plea of guilty"; (2) "defense counsel was ineffective for improperly advising the defendant to reject the state's plea offer"; and (3) "defense counsel was ineffective for failing to assure that defendant had a reasonable degree of rational understanding as to the options and consequences of the plea he was entering before advising defendant to enter a guilty plea." The majority opinion affirms the trial court's summary denial of the second and third claims, and reverses the summary denial of the first claim and remands for an evidentiary hearing. I concur in affirming the denial of the second and third claims, but respectfully dissent from reversing the first claim because it is conclusively refuted by the record.

Sosataquechel's first claim that his attorney was ineffective for failing to advise him of available defenses relies on these facts:

• "Defendant further avers that defense counsel never attempted to discuss with him the events that occurred on May 11, 2011."
• "Counsel only discussed the possibility of entering a plea."
• "There was never any conversation or discussion concerning any details of what occurred on the date of the incident."
• "[C]ounsel never interviewed him to see what actually occurred."
• "[C]ounsel's failure to investigate and inform Defendant about the defense available to him prior to advising him to enter a guilty plea is failure to comply with that duty."
• "Defense counsel never mentioned the available self-defense or any other option the Defendant had at his disposal other than entering a guilty plea."

These allegations in Sosataquechel's motion were conclusively refuted by the record. During the plea hearing, the trial court asked Sosataquechel if he "had [the] opportunity to discuss the facts and defenses in the case with your attorney." Under oath, Sosataquechel said that he had. (In the next breath Sosataquechel also testified that he was satisfied with his attorney's services.) Sosataquechel's answers at the plea colloquy conclusively refute his claim that his attorney did not discuss the facts of the case with him and never advised him about defenses to the murder charge. He swore at the time of his plea that his attorney did do these things. See Smith v. State, 21 So.3d 72, 76 (Fla. 1st DCA 2009) ("It is well-settled that when a court determines whether an allegation is conclusively refuted by the record, it may rely on the sworn testimony the defendant has given in a plea colloquy. Any allegations that contradict those answers should not be entertained." (citation omitted) ), quoted in St. Louis v. State, 134 So.3d 546, 547 (Fla. 3d DCA 2014).

That record evidence takes this case outside of the one cited by the majority opinion, Wright v. State, 675 So.2d 1009 (Fla. 2d DCA 1996). There, unlike here, the trial court did not attach record excerpts conclusively refuting the defendant's claim. For that reason, the court of appeal reversed and remanded for the trial court to conduct an evidentiary hearing, or "deny the claim without a hearing if record attachments conclusively refute Wright's assertions." Id. at 1010. Here, unlike in Wright, the trial court attached to its order the plea colloquy transcript conclusively refuting Sosataquechel's assertions that his attorney did not discuss the facts of his case and available defenses prior to his guilty plea.

The trial court correctly denied the first claim because the record conclusively refuted it. I would affirm the trial court's order.


text:
    Francisco CADAVIECO and Juanita Cadavieco, Appellants, v. CASTLE KEY INSURANCE COMPANY, Appellee.
    No. 3D17-526
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018.
    John Herrera, P.A., and John Herrera, Boca Raton, for appellants.
    Cole, Scott & Kissane, P.A., Key West, and Scott A. Cole, Miami, and Daniel M. Schwarz (Plantation), Plantation, for appellee.
    Before SALTER, EMAS and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Sunset Harbour Condo. Ass'n v. Robbins, 914 So.2d 925 (Fla. 2005) (holding that in order to be preserved for appellate review, issue must be presented to lower court and the specific legal argument raised); Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla. 1999) (noting generally, a claim not raised in the trial court will not be considered on appeal); Moore v. State, 225 So.3d 307 (Fla. 3d DCA 2017) (holding claims advanced on appeal were not preserved for appellate review where they were not raised with the trial court); Fabregas v. Fernandez, 215 So.3d 111 (Fla. 3d DCA 2017). See also Ashear v. Sklarey, 43 Fla. L. Weekly D181, --- So.3d ----, ---- n.3, 2018 WL 443199, at *3 n.3 (Fla. 3d DCA January 17, 2018) (holding that an issue raised for the first time in a reply brief may not be considered on appeal); General Mortg. Assocs., Inc. v. Campolo Realty & Mortg. Corp., 678 So.2d 431 (Fla. 3d DCA 1996) (and cases collected) (holding that an appellate court is precluded from considering an argument raised for the first time in a reply brief).


author: Kuntz, J.

text:
    GSK HOLLYWOOD DEVELOPMENT GROUP, LLC, Appellant, v. The CITY OF HOLLYWOOD, Florida, a Florida municipal corporation, Appellee.
    No. 4D16-3453
    District Court of Appeal of Florida, Fourth District.
    May 2, 2018
    Harvey W. Gurland, Jr., Scott H. Marder and Lida Rodriguez-Taseff of Duane Morris LLP, Miami, for appellant.
    Laura K. Wendell, Daniel L. Abbott and Adam A. Schwartzbaum of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for appellee.
   Kuntz, J.

GSK Hollywood Development Group, LLC filed a two-count complaint against the City of Hollywood ("City"), asserting a violation of the Bert J. Harris, Jr. Private Property Rights Protection Act (the "Harris Act") and a violation of its substantive due process rights. The circuit court entered a final judgment in favor of GSK on its Harris Act claim, and in favor of the City on the substantive due process claim. On appeal, both parties challenge the court's findings.

We find merit in the City's argument on cross-appeal. The then-existing version of the Harris Act required "action of a governmental entity." Because GSK never asked the City to act through a permit or variance application, a waiver request, or otherwise, it was not entitled to recover under the Harris Act. We reverse the court's judgment against the City.

Background

In 2002, GSK purchased two parcels of real property located on Hollywood Beach, intending to develop the Mirador Project, a luxury 15-story condominium, on the property. The property was zoned to permit construction of up to 150 vertical feet and up to 25 residential units per acre. Before purchase, GSK spoke to the City's Director of Planning and Zoning, who orally confirmed the zoning.

In 2004, while working on conceptual plans, GSK presented the Mirador Project to various city leaders at an informal event. Following this presentation, the mayor informed GSK that residents of Summit Towers Condos, a neighboring condominium association, were voicing opposition to the project. At trial, GSK presented evidence that the mayor was receptive to Summit's residents. The mayor responded to their emails, writing that she had "protected the Summit from every bad project that has come down the pike" and that "when the presentations are made and the vote is taken, I'm sure my vote will make my friends at Summit happy ... as they always have."

Subsequently, the mayor introduced a proposal at a city commission meeting to reduce building-height limits from 150 feet down to 65 feet. Though the commission did not adopt the proposal, it ordered the City to begin a study on building heights.

After completing the study, the City's Planning and Zoning Board proposed a step-down ordinance, which would maintain the 150-foot height restriction, but gradually reduce building height approaching the beach. The commission rejected this plan on first reading while also rejecting the mayor's renewal of her proposal to immediately reduce building-height limits to 65 feet.

Days later, the mayor again placed her proposal on the agenda for the next commission meeting and, at her request, the city attorney prepared a new height ordinance limiting building height to 65 feet. At that meeting, the commission rejected the step-down ordinance proposed by the City's Planning and Zoning Board on second reading but the Mayor's new height ordinance passed on first reading. The commission formally approved the new 65 foot height ordinance at a later meeting.

GSK then filed its lawsuit against the City. GSK's complaint alleged the City violated its rights under the Harris Act by enacting a height ordinance with a height restriction that burdened its use of the property. The City moved for summary judgment on the basis that GSK's failure to submit an application to develop the property precluded it from establishing the City had applied a law or ordinance in a manner that burdened GSK's property. The motion for summary judgment was denied without explanation.

The case went to trial. The City again argued GSK failed to apply for a permit or variance, which precluded recovery under the Harris Act. The court heard extensive testimony on the City's motion for directed verdict and again when the City renewed its motion. The court, however, did not orally rule on the issue. Instead, the record suggests the court informed the parties three separate times that a ruling on the motion would be forthcoming.

After oral argument, because of concerns that the issue was not preserved, we ordered the parties to direct the Court to any indication in the record showing the circuit court's ruling. The parties responded and disagree about how the circuit court conveyed its ruling. GSK asserts the court announced its oral ruling on liability during its instructions to the jury. The City argues the court announced its ruling during an unscheduled conference call from the court to the parties and later included its ruling on liability in the final judgment awarding damages. Regardless, both parties agree the court rejected the City's arguments and found the City liable under the Harris Act.

The City appeals the court's ruling at summary judgment and at trial, which rejected its argument that GSK's failure to apply for a permit, variance, or other formal relief precluded recovery under the Harris Act.

Analysis

We review the court's ruling on the City's motion for summary judgment, and the legal rulings during trial, de novo . Ioannides v. Romagosa , 93 So.3d 431, 433 (Fla. 4th DCA 2012).

In 1995, the "Legislature recognize[d] that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution." § 70.001(1), Fla. Stat. (2006). As a remedy, it enacted the Harris Act, and specifically stated in the statutory text:

[I]t is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.

Id.

In this case, we are tasked with determining whether a property owner can state a claim under the Harris Act when he or she never formally applied to develop the property. We conclude the answer is no. A claim relating to building restrictions under the then-existing version of the Harris act does not accrue unless the property owner formally applied to develop the property; thus, allowing the governmental entity to specifically apply the law or ordinance to the property in question.

The plain language of the statute supports our conclusion. The statute contains several references to laws, regulations, and ordinances "as applied," as well as the "specific action of a governmental entity" and the "specific use" of real property.

The first subsection of the Harris Act states that the "Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied , may inordinately burden, restrict, or limit private property rights ...." § 70.001(1), Fla. Stat. (2006) (emphasis added). It also states that "the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied , unfairly affects real property." Id. (emphasis added).

The second subsection focuses on "specific action of a governmental entity," and "specific use " of real property. Id. § 70.001(2) (emphasis added). Similarly, the third subsection provides that the "term 'action of a governmental entity' means a specific action of a governmental entity which affects real property, including action on an application or permit." Id. § 70.001(3) (emphasis added). And the "terms 'inordinate burden' or 'inordinately burdened' mean that an action of one or more governmental entities has directly restricted or limited the use of real property ...." Id. § 70.001(3)(e) (emphasis added).

Finally, a later subsection provides that a "cause of action may not be commenced under this section if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue ." Id. § 70.001(11) (emphasis added).

Thus, the statute's plain language establishes that a claim under the Harris Act does not ripen until the governmental entity specifically applies the law or ordinance to the property in question. Because the plain language of the statute answers the question presented, we need not resort to the rules of statutory construction. 14269 BT LLC v. Village of Wellington , 240 So.3d 1, 2-3, 2018 WL 443899 (Fla. 4th DCA Jan. 17, 2018).

While the facts here are materially different, the issue here is nearly identical to the issue addressed en banc by the First District in City of Jacksonville v. Smith , 159 So.3d 888 (Fla. 1st DCA 2015). In Smith , the majority explained that the "dispositive issue ... is whether a property owner may maintain an action pursuant to the Harris Act if that owner has not had a law, regulation, or ordinance applied which restricts or limits the use of the owner's property." Id. at 888-89.

The Smiths filed a lawsuit under the Harris Act, claiming their property was inordinately burdened by the city's rezoning of an adjoining piece of land, which resulted in the construction and operation of a fire station next door. Id. at 889. Because it had taken no direct action against the property, the City argued the Smiths failed to state a claim. Id. On appeal, the en banc majority agreed. Id. at 894. The First District concluded that direct action by the government as to the property in question was required for a claim under the Harris Act to ripen. Id. Allowing a claim to be presented when the governmental entity took no direct action "broadens the scope of the Harris Act far beyond its intended purpose and has the potential to open the floodgates for claims under the Act against state, regional, and local governmental entities whenever they approve development on one property (or conduct activities on their own property) that adversely impacts the value of another property." Id. at 894.

Judge Makar's dissent in Smith provides further support for our conclusion in this case. In his dissent, Judge Makar argued that "facial claims directed to the mere enactment of a law, for example, are not permissible until the law is applied to the property in question. Thus, jurisdiction-wide enactments of general applicability cannot be challenged; to do so would constitute a 'facial' challenge, which the Act prohibits." Id. at 909 (Makar, J., dissenting). Judge Makar continued, stating "[u]ntil a government action is actually applied in a specific situation, the Act is dormant and merely inchoate. Contrarily, when an enactment is first applied to a property, it constitutes governmental action that may be subject to the Act in an 'as applied' context." Id. As discussed, GSK did not request a variance from the City to deviate from the ordinance. The ordinance at issue was never applied to the property, leaving the Harris Act claim "dormant" and "inchoate."

We also acknowledge, as the Fifth District recognized in Citrus County v. Halls River Development, Inc. , 8 So.3d 413, 420 (Fla. 5th DCA 2009), the requirement that a property owner apply to develop property is not absolute. In Citrus County , the Fifth District explained the difference between a comprehensive plan and a zoning regulation. A "comprehensive plan is similar to a constitution for all future development within the governmental boundary"; whereas, "zoning involves the exercise of discretionary powers within limits imposed by the comprehensive plan." Id. at 420-21. In that case, the property owner argued the Harris Act claim could not be presented until an actual plan was submitted and rejected. Id. at 422. The court disagreed with the property owner and held that a change to a comprehensive plan can give rise to a claim under the Harris Act because a later zoning decision "that is not in accordance with the comprehensive plan is unlawful." Id. at 421. In other words, there was no action that could be taken to escape the effect of the "law or regulation" after the comprehensive plan was implemented.

This case is distinguishable from Citrus County . See also M & H Profit, Inc. v. City of Panama City , 28 So.3d 71, 78 (Fla. 1st DCA 2009) (" Citrus County involved an amendment to a comprehensive plan which reclassified the land use category on a particular piece of property. In this case, we are dealing with adoption of a general land development regulation effective throughout an entire zoning district. Citrus County is, therefore, not controlling."). Furthermore, GSK could have acted to escape the zoning height requirement and, had it done so, the City may have granted it a variance allowing the property to be built. Because GSK failed to make a formal application to develop the property, the City did not apply the ordinance to the property at issue. Thus, the claim under the Harris Act was not ripe.

Finally, we again note that the statute has been amended and now uses different language than the language used in the version of the statute governing this dispute. Our holding applies to the case before us and the version of the statute that governs this case. We express no comment about whether the statutory amendments would have affected GSK's claims.

Conclusion

GSK failed to seek a permit, variance, or other formal relief from the City before filing its Harris Act claim. As such, the City took no specific action on GSK's property and the claim was not yet ripe. If the Legislature intended to allow a claim in such a circumstance, it is for the Legislature to do so. The judgment in favor of GSK is reversed with instructions to enter judgment in favor of the City.

Reversed and remanded.

Warner and Conner, JJ., concur.

      See § 70.001, Fla. Stat. (2010).

      We affirm, without further discussion, the issues raised by GSK on direct appeal as moot based on our resolution of the City's cross-appeal.

      In 2010, after filing the lawsuit in 2009, GSK formally submitted a preliminary site review plan to the City. Due to changes in the real estate market, this plan was substantially different than the plan at issue in this lawsuit. Regardless, the City's Technical Advisory Committee found GSK's project was "substantially compliant with the requirements of preliminary review." However, GSK informed the City it would not be seeking a height variance and the City's Planning and Development Services Department refused to sign-off on the project and schedule it for public hearing until either the application was amended to indicate a height variance or a settlement agreement was entered into regarding the project's proposed height.


author: Bilbrey, J.

text:
    Garfield PLUMMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3275
    District Court of Appeal of Florida, First District.
    May 3, 2018
    Garfield Plummer, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

Appellant, Garfield Plummer, appeals the denial of his motion to correct illegal sentence pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. Appellant seeks relief for two consecutively-imposed mandatory minimum sentences. The State initially conceded error but then filed supplemental authority which we analyze below. We find the initial concession of error to be correct, and therefore reverse and remand for resentencing.

Appellant entered an open plea to the information which charged him with actual possession of a firearm by a convicted felon and armed robbery of two different victims, all during one criminal episode. The information did not allege that Appellant discharged the firearm. See Bienaime v. State , 213 So.3d 927, 929 (Fla. 4th DCA 2017) (requiring the State "to allege grounds for enhancement in the charging document" in order to pursue "an enhanced mandatory sentence" under the 10-20-Life statutes). The court accepted Appellant's open plea and applied section 775.087(2), Florida Statutes (2010), part of the 10-20-Life law which imposes mandatory minimum sentences.

For possession of a firearm by a convicted felon, the trial court sentenced Appellant to five years' imprisonment, with three years' mandatory minimum. For the armed robberies, the court imposed two terms of ten years' imprisonment, with ten years' mandatory minimum. The court imposed the robbery sentences concurrently to each other, but consecutively imposed the sentence for the firearm possession. Thus, the three-year mandatory minimum sentence was consecutive to the ten-year mandatory minimum sentences.

Because Appellant did not take a direct appeal, his convictions became final on September 24, 2010. As explained in Lanham v. State , 60 So.3d 532 (Fla. 1st DCA 2011), at the time Appellant was sentenced, the decisional law in this court was that consecutive mandatory minimum sentences were impermissible when a defendant displayed a firearm but did not discharge it while robbing multiple victims. See also Perry v. State , 973 So.2d 1289 (Fla. 4th DCA 2008) ; Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006) (prohibiting consecutive mandatory minimum sentences for the same criminal episode where the firearm was not discharged).

In January 2012, Appellant filed a motion under rule 3.850, Florida Rules of Criminal Procedure. One of his claims was that counsel had acted ineffectively by failing to challenge the consecutive mandatory minimum sentences. While the motion was pending in the trial court, this court receded from Lanham in Walton v. State , 106 So.3d 522 (Fla. 1st DCA 2013) (en banc) ( Walton I ). In Walton I , we concluded that section 775.087(2) required the imposition of consecutive mandatory minimum sentences, even without the discharge of a firearm. Consequently, the trial court denied Appellant's rule 3.850 motion, and we affirmed the denial on appeal. See Plummer v. State , 150 So.3d 1139 (Fla. 1st DCA 2014).

Thereafter, in Williams v. State , 186 So.3d 989 (Fla. 2016), the supreme court explained that where offenses arise in the same criminal episode and the firearm is possessed but not discharged, mandatory minimum sentences should not be consecutively imposed. Williams did allow trial courts to exercise discretion in imposing either concurrent or consecutive sentences where, unlike here, a firearm was discharged.

After its decision in Williams , the Florida Supreme Court quashed this court's Walton I decision in Walton v. State , 208 So.3d 60 (Fla. 2016) ( Walton II ). In Walton II , the court noted its opinion in Williams , where it stated that a consecutive mandatory minimum sentence under section 775.087(2)" 'is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged.' " Walton II , 208 So.3d at 64 (quoting Williams, 186 So.3d at 993 ). See also Gartman v. State , 197 So.3d 1181 (Fla. 1st DCA 2016) (reversing, based on Williams , consecutive mandatory minimum sentences for armed robbery and possession of a firearm by a convicted felon where no discharge of the firearm occurred).

Within days of the issuance of Williams, Appellant filed his rule 3.800(a) motion asserting that the consecutive mandatory minimum sentences he received were illegal. In June 2017, the trial court determined that Williams controlled the issue. The trial court then conducted a retroactivity analysis, concluded Williams did not apply retroactively, and denied Appellant's rule 3.800(a) the motion. The court did not consider Walton II in its analysis.

Appellant then brought this appeal. After first conceding error, the State then filed Osei v. State , 226 So.3d 1077 (Fla. 1st DCA 2017), as supplemental authority. In Osei, we concluded that Williams did not apply retroactively to cases that were final when Williams was decided. Accordingly, we affirmed the denial of the postconviction relief under rule 3.850. However, Osei is distinguishable because it involved the discharge of a firearm.

Under Williams, consecutive mandatory minimum sentences are permissible, but not required if there is a discharge of a firearm. Therefore, a consecutive sentence for someone who discharged a firearm is not an illegal sentence. See Carter v. State , 786 So.2d 1173, 1178 (Fla. 2001) (quoting Blakley v. State , 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999) ) ("To be illegal within the meaning of rule 3.800(a) the sentence must impose a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of circumstances."). Because of the discharge of a firearm in Osei , the consecutive mandatory minimum sentences could legally be imposed within the sound discretion of the trial court.

Because no firearm was discharged by Appellant, Osei is not controlling. Rather, the result in this case is governed by Walton II and Lanham which afford Appellant relief. Appellant's sentence was illegal when the sentence issued in 2010, so the trial court erred when it applied a retroactivity analysis to Williams. No trial court could legally have imposed a consecutive mandatory minimum sentence as of 2010 as later explained by Lanham . We therefore reverse and remand for the trial court to impose concurrent mandatory minimum sentences. See Walton II ; Williams ; Gartman . As this is a ministerial act, Appellant need not be present. See Lanham , 60 So.3d at 532.

REVERSED and REMANDED with directions.

B.L. Thomas, C.J., and Jay, J., concur.

      Since there was no conflict between district courts at the time Appellant was sentenced, Perry and Irizarry were binding on the trial court. See Miller v. State , 980 So.2d 1092 (Fla. 2d DCA 2008) (holding that in absence of a conflict between districts, the majority opinion of a district court is binding on all Florida trial courts).

      Walton II quashed Walton I restoring the status of the caselaw in the First District as set forth in Lanham .

      The Osei opinion does not directly state it involved the discharge of a firearm, but that can be discerned from the 35 years' total sentence Osei received for the two offenses-twenty years' imprisonment mandatory minimum for aggravated assault, which was then a qualifying offense, and fifteen years' imprisonment, with three years' mandatory minimum, for possession of a firearm by a convicted felon. See § 775.087(2)(a)(1)(f) & (r), Fla. Stat. (2012). Judicial notice of our records from Osei's cases before the court also shows that he discharged a firearm, unlike Appellant here. See Scheffer v. State , 893 So.2d 698, 699 (Fla. 5th DCA 2005) ("This court can take judicial notice of its own records.").


author: Winokur, J. Winsor, J., dissenting.

text:
    Y.G., Mother of A.P., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-49
    District Court of Appeal of Florida, First District.
    May 3, 2018 Rehearing Denied July 5, 2018
    Sarah Rahn Thomas, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Jacksonville, and Crystal M. Frusciante, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Sunrise, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellee; David P. Krupski, Appellate Counsel, Guardian ad Litem Program, Sanford.
   Winokur, J.

Y.G. appeals the trial court's order terminating her parental rights to her son A.P. Because the trial court should have continued the trial after Y.G. consented to A.P.'s adoption, we reverse.

I. BACKGROUND

On September 14, 2017, the Department of Children and Families (DCF) sheltered A.P., an infant less than two weeks old. On October 9, Y.G. executed a consent to adoption and relinquishment of rights in favor of the maternal grandfather. DCF then filed an adoption case plan and expedited petition for termination of parental rights (TPR) as to Y.G. On October 31, the grandfather filed Y.G.'s consent to adoption and a notice of appearance as an intervenor, and DCF filed an approved relative home study on the grandfather.

Y.G. filed a motion for continuance of the TPR trial, arguing that she had a right to private placement of A.P., she consented to his adoption, an approved relative home study of the grandfather had been filed, and the grandfather would soon file a motion to intervene once an adoption home study was completed. At a hearing November 28, the trial court declined to wait on a potential motion to intervene to be filed, denied the motion to continue, and set the single-parent TPR trial for December 4.

On December 3, the grandfather filed a motion to intervene and transfer custody of A.P. He attached an adoption home study, which was approved on December 1.

Before trial the next day, DCF and the guardian ad litem (GAL) stated that the grandfather's motion was sufficient, but objected, arguing that a transfer of custody was not in A.P.'s best interests. The trial court stated that it would "take in the motion" during "the best interest part" of the TPR trial. The grandfather moved to continue the trial so he could participate in discovery, understand the basis of the objection, and procure witnesses. The trial court denied the motion to continue. The grandfather declined the invitation to present his motion as part of the TPR trial.

Y.G. then renewed her motion to continue on the basis of the recently-filed motion to intervene. She argued that she had a right to consent to adoption, and the grandfather's motion to intervene required a hearing as to A.P.'s best interests relevant to the grandfather's adoption. Additionally, she argued that a brief continuance would not prejudice A.P., as his permanency would not be affected; permanency would not be achieved until the father's rights were terminated, which would not occur until at least mid-December due to DCF's intended service of notice by publication. The trial court denied Y.G.'s motion to continue and conducted the TPR trial, after which it terminated Y.G.'s parental rights to A.P.

II. CONSENT TO ADOPTION

Section 63.082, Florida Statutes, governs proceedings related to a parent's consent to adoption.

If a parent executes a consent for adoption of a minor with an adoption entity or qualified prospective adoptive parents and the minor child is under the supervision of the department ..., but parental rights have not yet been terminated, the adoption consent is valid, binding, and enforceable by the court.

§ 63.082(6)(a), Fla. Stat. Once the parent executes a consent for adoption, the trial court must permit the adoption entity to intervene in the dependency case. § 63.082(6)(b), Fla. Stat. The "dependency court shall promptly grant a hearing to determine whether the adoption entity has filed the required documents to be permitted to intervene and whether a change of placement of the child is in the best interests of the child." § 63.082(6)(c), Fla. Stat. "In determining whether the best interests of the child are served by transferring the custody of the minor child to the prospective adoptive parent," the trial court must consider eight factors, including the "right of the parent to determine an appropriate placement for the child." § 63.082(6)(e), Fla. Stat. If the trial court determines that the prospective adoptive parents are properly qualified and adoption is in the best interests of the child, the court must transfer custody of the child to the prospective adoptive parents. § 63.082(6)(d), Fla. Stat.

Appellate courts have addressed compliance with section 63.082 in the context of dependency proceedings when consent to adoption has been given before parents have lost their parental rights. See E.Q. v. Fla. Dep't of Children & Families , 208 So.3d 1258, 1261 (Fla. 3d DCA 2017) (holding that when a trial court considers a motion to transfer a dependent child, it "must consider the wishes of the parent or parents, if their parental rights have not been terminated, and weigh those wishes with the other [ ] factors articulated in section 63.082(6), which relate to the best interests of the child"); R.L. v. W.G. , 147 So.3d 1054 (Fla. 5th DCA 2014) ("The mother's choice of placement with a prospective parent when her parental rights were still intact was an exclusively parental decision. The decision was subject only to the trial court determining that the prospective parent was properly qualified and that the adoption was in [the child's] best interests."); In re S.N.W. , 912 So.2d 368, 374 (Fla. 2d DCA 2005) (reversing because the trial court erred in putting aside the mother's consent to adoption and denying the adoption entity's motion to intervene). In deference to the parent's "constitutional right to the care, custody, and control of their children," a trial court may not compare the selected prospective adoptive parents with other placements the court or DCF might otherwise choose. In re S.N.W. , 912 So.2d at 373 n.4 ; see also In re Adoption of K.A.G. , 152 So.3d 1271, 1275 n.4 (Fla. 5th DCA 2014) (agreeing that courts may not make a comparative assessment of placements if the parents have selected prospective adoptive parents).

Here, the question is not whether the trial court erred in ruling on the motion to intervene, as a ruling was never issued. After the grandfather filed his motion to intervene, a best-interests hearing pursuant section 63.082(6) was required. Because none of the parties were prepared to proceed on a hearing as to the grandfather's adoption, Y.G. moved to continue the previously-scheduled TPR trial.

III. MOTION FOR CONTINUANCE

"Whether to grant or deny a motion to continue a trial is a matter that rests within the sound discretion of the trial judge." Shands Teaching Hosp. & Clinics, Inc. v. Dunn , 977 So.2d 594, 599 (Fla. 1st DCA 2007). This discretionary decision is given even greater deference than others. Id. "However, there are indeed cases in which the appellate court will have no alternative but to reverse, because the injustice caused by the denial of the motion outweighs the judicial policy of deferring to the trial judge." Id.

As discussed in Part II, Y.G.'s consent was "valid, binding, and enforceable," and the trial court was required to hold an evidentiary hearing to determine the best interests of A.P. in relation to the grandfather's potential adoption. Due to the recent filing of the grandfather's motion to intervene, the parties were not prepared to hold this best interests hearing when they arrived for the scheduled TPR trial on December 4.

In considering whether the trial court abused its discretion in denying a motion for continuance, appellate courts must consider three factors: 1) whether denial of the motion creates injustice for the movant; 2) whether the cause of the request was foreseeable or due to dilatory practices; and 3) the potential of prejudice or inconvenience to opposing parties. See Garner v. Langford , 55 So.3d 711, 714 (Fla. 1st DCA 2011) (quoting Fleming v. Fleming , 710 So.2d 601, 603 (Fla. 4th DCA 1998) ); see also C.J. v. Dep't of Children & Families , 756 So.2d 1108, 1109-10 (Fla. 3d DCA 2000) (identifying best interests of the child and fairness to the parents as primary concerns).

Upon review, we conclude that the trial court abused its discretion in denying Y.G.'s motion to continue the TPR trial. As to the first factor, the denial created injustice for the movant. While Y.G.'s parental rights remained intact, she consented to the adoption of A.P. by his grandfather. Y.G.'s right to select adoptive parents, though not absolute and to be considered with other factors, is significant, and she was deprived of it. Second, no dilatory practices are demonstrated. The week before the trial was scheduled, Y.G. moved for a continuance, stating that the grandfather would soon file a motion to intervene when an adoptive home study was completed. Shortly after the trial court denied the motion, the home study was completed, the grandfather moved to intervene, and Y.G. renewed her motion. While this renewed motion was foreseeable, Y.G. put the trial court on notice of the impending motion the week before trial. Lastly, there would be little, if any, apparent prejudice to DCF, GAL, or A.P. if the trial court were to grant the continuance. As DCF was proceeding on a single-parent TPR petition, A.P. would not achieve permanency for at least almost two weeks, when DCF intended to provide notice by publication to A.P.'s father. DCF and GAL could choose to present evidence in a best-interest hearing in opposition to a transfer of custody, but any effort required to do so creates little prejudice in relation to Y.G.'s right to select the adoptive parents of her child. After consideration of the evidence and interests presented, the factors weigh in favor of granting Y.G.'s motion for continuance.

IV. CONCLUSION

While it is understandable that a trial court would deny a motion to continue filed the day before trial, the trial court should have granted Y.G.'s motion to continue the TPR trial and scheduled proceedings consistent with section 63.082(6). For these reasons we REVERSE the order terminating Y.G.'s parental rights, and REMAND for proceedings consistent with this opinion.

Makar, J., concurs; Winsor, J., dissents with opinion.

Winsor, J., dissenting.

We should reverse a trial court's decision denying a continuance "only in very rare situations," Shands Teaching Hosp. & Clinics, Inc. v. Dunn , 977 So.2d 594, 599 (Fla. 1st DCA 2007) -and only when "a palpable abuse of discretion ... clearly and affirmatively appear[s] in the record," Geralds v. State , 674 So.2d 96, 99 (Fla. 1996). This is not one of those situations.

Appellant wanted her father to adopt her infant child. So, on October 9, 2017, she executed a consent to adoption. The grandfather was soon aware of the consent, which he filed with the court on October 31. Yet the grandfather waited nearly five weeks more before submitting a motion to intervene the night before the final hearing. (The motion was filed with the clerk the next day.)

The morning the final hearing began, the mother moved for a continuance, which the court denied. The mother now argues that the court should have continued the matter so that the grandfather (who makes no appearance on appeal) could pursue his intervention motion at some unspecified future time. The grandfather's counsel was there, and he explained that the grandfather was not yet ready to argue his motion, that he needed unspecified discovery before he could show that his adopting the child would be in the child's best interests.

On the particular facts we face, I cannot agree that the trial court acted beyond the bounds of its wide discretion. See Geralds , 674 So.2d at 99. Even if I were convinced I would have handled the continuance request differently, I see no basis to reverse. See Neville v. McKibben , 227 So.3d 1270, 1273 (Fla. 1st DCA 2017) ("There is no abuse of discretion where reasonable persons could differ as to the trial court's ruling.").

      The parties appear to have proceeded on the basis that the grandfather, or his counsel, was an "adoption entity" for purposes of section 63.082(6)(b)-(d). See § 63.032(3), (10), & (18), Fla. Stat. (defining "adoption entity" to include "intermediary" and defining "intermediary" as "an attorney who is licensed or authorized to practice in this state and who is placing or intends to place a child for adoption ...."). We presume, without deciding, that the grandfather or his counsel was an adoption entity, because it was not addressed below and because it is not relevant to the question of whether the trial court abused its discretion in denying Y.G.'s motion to continue.

      This delay stems from the grandfather's counsel's apparent belief that an adoptive home study (in addition to the relative home study) was required under section 63.082(6)(b), Florida Statutes. There is no evidence that this delay was intended for delay's sake.