author: Gerber, C.J.

text:
    Michael ROBBINS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D18-929
    District Court of Appeal of Florida, Fourth District.
    [July 11, 2018]
    Robert Malove, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for respondent.
   Gerber, C.J.

The defendant, pursuant to Florida Rule of Appellate Procedure 9.141(d), petitions that he received ineffective assistance of appellate counsel on his direct appeal, primarily because the direct appeal did not argue that the trial court applied the incorrect legal standard in denying the defendant's motion for new trial. We grant the petition on this ground only. We remand for the trial court to reconsider the defendant's motion for new trial under the correct legal standard.

We present this opinion in the following five sections:

1. The procedural history;
2. The standard of review for a petition alleging ineffective assistance of appellate counsel;
3. Review of the incorrect legal standard argument;
4. Review of the instant case and similar precedent; and
5. Distinguishing the instant case from recent precedent.

1. Procedural History

The state charged the defendant with aggravated battery with a firearm. The evidence showed that the defendant was involved in an argument with a man who was hanging out with a small group of people outside of a business. The defendant eventually got a gun from his nearby truck, fired two shots towards the group, and drove off. One of the shots struck a woman in the group.

Defendant claimed that he fired warning shots in self-defense and did not intend to hit anyone. At trial, defense counsel cross-examined the woman about her inconsistent statements regarding whether it appeared to her that the defendant was trying to shoot towards the group or was just trying to scare someone off.

After the jury convicted the defendant as charged, defense counsel moved for a new trial, arguing in part that, pursuant to Florida Rule of Criminal Procedure 3.600(a)(2), the verdict was contrary to the weight of the evidence. Defense counsel reminded the court about the woman's inconsistent statements regarding whether it appeared to her that the defendant was just trying to scare someone off.

In response to the defendant's motion for new trial, the prosecutor argued, in pertinent part, that as far as "talking about the victim and perhaps her inconsistent statement to the police ... this is not the time for [the Court] to sit in the chairs of the jury.... I am asking the Court that it is a question of fact that the jury already considered in their deliberations and at this time should not be granted-a Motion for New Trial should not be granted on that fact."

The trial court denied the defendant's motion for new trial. The trial court reasoned, "I agree with the State that it was a question of fact and the jurors got to see [defense counsel] challenge [the victim] with the prior inconsistent statements and it didn't make an impact on them."

The direct appeal raised a separate evidentiary issue. We affirmed on that separate evidentiary issue. Robbins v. State , 229 So.3d 1244 (Fla. 4th DCA 2017) (table).

The direct appeal did not argue that the trial court applied the incorrect legal standard in denying the defendant's motion for new trial.

2. The Standard of Review for a Petition Alleging Ineffective Assistance of Appellate Counsel

The defendant now petitions that he received ineffective assistance from his appellate counsel on the direct appeal, because the direct appeal did not argue that the trial court applied the incorrect standard in denying the defendant's motion for new trial.

Our standard of review on a petition alleging ineffective assistance of appellate counsel was set forth by our supreme court in Rutherford v. Moore , 774 So.2d 637 (Fla. 2000) :

When analyzing the merits of the claim, the criteria for proving ineffective assistance of appellate counsel parallel the Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] standard for ineffective trial counsel. Thus, this Court's ability to grant habeas relief on the basis of appellate counsel's ineffectiveness is limited to those situations where the petitioner establishes first, that appellate counsel's performance was deficient because the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance[,] and second, that the petitioner was prejudiced because appellate counsel's deficiency compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. If a legal issue would in all probability have been found to be without merit had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective.

Rutherford , 774 So.2d at 643 (internal footnote, citations, and quotation marks omitted).

Here, we conclude that the criteria for proving ineffective assistance of appellate counsel has been met. If the direct appeal had argued that the trial court applied the incorrect legal standard in denying the defendant's motion for new trial, then we would have found that the argument had merit, and reversed for reconsideration of the motion under the correct legal standard.

To explain our conclusion, we examine how we would have analyzed the incorrect legal standard argument on direct appeal.

3. Review of the Incorrect Legal Standard Argument

On direct appeal, our standard of review for determining whether the trial court applied an incorrect legal standard to the motion for new trial would have been de novo. See Velloso v. State , 117 So.3d 903, 905 (Fla. 4th DCA 2013) ("Ordinarily, a trial court's ruling on a rule 3.600(a)(2) motion for new trial is subject to review under an abuse of discretion standard. But where a trial court's ruling is based on the application of an incorrect legal standard, the ruling is subject to de novo review.") (citation omitted).

Velloso discussed the difference between the "sufficiency of the evidence" standard on a motion for judgment of acquittal versus the "weight of the evidence" standard on a motion for a new trial:

Rule 3.600(a)(2) provides that a trial court shall grant a new trial if the verdict is "contrary to ... the weight of the evidence." There is a distinction between the "sufficiency of the evidence" standard, which is used in determining whether to grant a judgment of acquittal, and the "weight of the evidence" standard, which is used in evaluating a motion for new trial. The "sufficiency of the evidence" standard examines whether the evidence presented is legally adequate to permit a conviction, while the "weight of the evidence" standard evaluates whether a greater amount of credible evidence supports an acquittal.
In deciding a motion for new trial ..., the trial court acts as a "safety valve" by granting a new trial where the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict. Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror.
A trial court is not compelled to use "magic words" when ruling on a motion for new trial, but the ruling should demonstrate that the court applied the proper standard to the motion. Reversible error occurs when a trial court applies a sufficiency of the evidence standard to a motion for new trial under rule 3.600(a)(2).

Id. (internal citations and other quotation marks omitted).

4. Review of the Instant Case and Similar Precedent

In the instant case, the combination of the prosecutor's statement ("this is not the time for [the Court] to sit in the chairs of the jury") and the trial court's reasoning ("I agree with the State that it was a question of fact") appears to demonstrate that the trial court applied a "sufficiency of the evidence" standard and not rule 3.600(a)(2)'s "contrary to ... the weight of the evidence" standard.

This incorrect application of law, if raised on direct appeal, would have resulted in a reversal for reconsideration of the defendant's motion for new trial under the correct legal standard, based on our precedent in Velloso .

In Velloso , the trial court denied the defendant's motion for new trial, reasoning that it was "the jury's role to weigh the credibility of witnesses. I make the determination whether the State has met the minimum threshold for it to go to the jury. And that's a minimum threshold. That's what the standard is, whether reasonable jurors could differ." Id. at 905-06. We reversed and remanded for the trial court to reconsider the defendant's motion for new trial, concluding that the trial court's statements indicated it had "applied the sufficiency of the evidence standard, when it should have determined whether the verdict was contrary to the weight of the evidence." Id. at 906.

Our holding in Velloso recently was followed by one of our sister courts in Jordan v. State , 244 So.3d 1178, 2018 WL 1886471 (Fla. 1st DCA Apr. 20, 2018). In Jordan , the trial court denied the defendant's motion for new trial, reasoning, "The jury did not agree with that position and they found him guilty beyond a reasonable doubt, so I will deny the motion." Id. at 244 So.3d at 1179. The First District reversed and remanded for the trial court to reconsider the defendant's motion for new trial, concluding the trial court's statements

implied that it denied [the defendant's] motion because there was sufficient evidence to allow the jury to reach a decision. Thus, the trial court impermissibly used a sufficiency of the evidence standard in evaluating the motion. The trial court also impermissibly abrogated its responsibility to determine whether a verdict is against the manifest weight of the evidence independently of the jury.

Id. at 244 So.3d at 1179 (internal citations omitted).

Similar to Velloso and Jordan , the trial court in the instant case impermissibly used a "sufficiency of the evidence" standard in evaluating the motion, rather than applying rule 3.600(a)(2)'s "contrary to ... the weight of the evidence" standard. Thus, if the direct appeal had argued that the trial court applied the incorrect legal standard, then reversal for reconsideration of the motion for new trial would have been required, pursuant to Velloso .

5. Distinguishing the Instant Case from More Recent Precedent

We distinguish the instant case from our more recent precedent in Mitchell v. State , 245 So.3d 805, 2018 WL 1956349 (Fla. 4th DCA Apr. 25, 2018). In Mitchell , the defendant's motion for new trial asserted that the verdicts were contrary to the weight of the evidence, and specifically requested the trial court to "assess the verdict in light of the weight and credibility of the evidence." Id. at 245 So.3d at 806. The trial court denied the motion, verbally stating, "All right, I'll note your motion and objections and at this time I'll deny your motion for a new trial or your motion to dismiss." Id. The trial court then entered a written order, merely stating, "The motion is denied." The defendant did not object that the trial court had not articulated the legal standard it applied in reviewing the evidence.

On direct appeal, the defendant argued that "the trial court's failure to explicitly articulate what standard it applied when reviewing the evidence with respect to his motion for a new trial was reversible error." Id. We affirmed, concluding that because the trial court's ruling "already implicitly applied the correct standard of review," and the defendant "lodged no objection nor request for clarification," the defendant had not preserved his incorrect legal standard argument for review. Id. We reasoned that Velloso was distinguishable:

Here [in Mitchell ], the trial court did not make any eyebrow-raising comment as in Velloso ... nor does the State agree with [the defendant] that there is an "ambiguous" record on this issue. [The defendant] provided the trial court with the correct standard of review in his motion, and neither the State nor the trial court took exception to that standard. The trial court then noted [the defendant's] motion and ruled, orally and in a written order, that it was denying the motion.
There exists in law as in equity a presumption of the correctness of the rulings of the trial court and a person resorting to an appellate court is charged with the responsibility of making error clearly to appear. [The defendant] has failed to meet this burden in the instant case.

245 So.3d at 808 (citations and quotation marks omitted).

The instant case more closely resembles Velloso than Mitchell , because here, both the prosecutor and the court articulated the incorrect legal standard for reviewing a rule 3.600(a)(2) motion for new trial. And, in any event, at the time the direct appeal was filed, Velloso was the law in this court, and Mitchell had not yet issued.

Conclusion

Because appellate counsel did not raise the incorrect legal standard argument, which under Velloso would have resulted in a reversal for reconsideration on the defendant's motion for new trial, we are compelled to grant the defendant's petition on this argument. We reverse the trial court's denial of the defendant's motion for new trial, and remand for the trial court to consider the motion under rule 3.600(a)(2)'s "contrary to ... the weight of the evidence" standard. We make no comment on whether the defendant's motion for new trial should be granted or denied.

The defendant's remaining argument in his petition alleging ineffective assistance of appellate counsel is denied without further discussion.

Granted in part, denied in part, and remanded for further proceedings consistent with this opinion.

Conner and Klingensmith, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jacob FRANCOIS, Appellant, v. LIBRARY SQUARE ASSOCIATION, INC., Appellee.
    No. 4D17-2694
    District Court of Appeal of Florida, Fourth District.
    [July 11, 2018]
    Jacob Francois, Port St. Lucie, pro se.
    Joseph B. Lancos of Tripp Scott, P.A., Fort Lauderdale, for appellee.
   Per Curiam.

The trial court erred when it denied the defendant's motion to set aside the foreclosure sale. We vacate the sale and remand.

Following entry of final judgment of foreclosure, the defendant filed a timely motion for rehearing. While his motion for rehearing was pending, the clerk of court enforced the final judgment by conducting a foreclosure auction and selling the property to the highest bidder (a third party). The defendant's subsequent motion to set aside the sale was denied.

While a motion for rehearing is pending, the trial court retains "complete control of its decree with the power to alter or change it .... " State ex rel. Owens v. Pearson , 156 So.2d 4, 7 (Fla. 1963). For this reason, it is well settled that "enforcement of a final judgment is suspended" by the filing of a timely motion for rehearing. 944 CWELT-2007 LLC v. Bank of Am., N.A. , 194 So.3d 470, 471 (Fla. 3d DCA 2016).

Here, the foreclosure sale must be set aside because it was conducted while the defendant's timely motion for rehearing directed at the foreclosure judgment was pending. See , e.g. , Diaz v. U.S. Bank, N.A. , 239 So.3d 151, 152 (Fla. 3d DCA 2018).

The defendant also appeals the trial court's eventual denial of his motion for rehearing. We affirm the denial of his motion for rehearing and reverse only the order denying his motion to set aside the sale for the reasons stated. We vacate the foreclosure sale and remand for the court to begin the sale process anew. See Hoffman v. BankUnited, N.A. , 137 So.3d 1039 (Mem) (Fla. 2d DCA 2014).

Gerber, C.J., Gross and Ciklin, JJ., concur.


author: SCALES, J.

text:
    CHIROPRACTIC CLINICS OF SOUTH FLORIDA, PL, a/a/o Juan Ogando, Petitioner, v. The RESPONSIVE AUTO INSURANCE COMPANY, Respondent.
    No. 3D18-522
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    George A. David, P.A., and George A. David, for petitioner.
    Law Office of Carlos D. Cabrera, LLC, and Carlos D. Cabrera (Hollywood), for respondent.
    Before FERNANDEZ, SCALES and LUCK, JJ.
    ON RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF CERTIORARI
   SCALES, J.

Petitioner Chiropractic Clinics of South Florida, PL, as assignee of Juan Ogando ("Chiropractic Clinics"), seeks second-tier certiorari review of an opinion rendered by the circuit court's appellate division on June 12, 2017. We lack jurisdiction to adjudicate Chiropractic Clinics's petition, and therefore dismiss it.

The appellate division's opinion affirming the county court's final summary judgment was rendered on June 12, 2017, and the clerk issued the mandate on July 25, 2017. Alleging that he did not receive the June 12, 2017 opinion of the appellate division until July 27, 2017, when advised of it by opposing counsel, Chiropractic Clinics's counsel filed a motion in the appellate division to strike the mandate on August 3, 2017. Further, on August 21, 2017, Chiropractic Clinics filed a motion for rehearing directed toward the appellate division's June 12, 2017 opinion.

On September 5, 2017, the appellate division entered an unelaborated order denying Chiropractic Clinics's motion to strike the mandate. Several months later, on February 22, 2018, the appellate division entered another unelaborated order denying Chiropractic Clinics's rehearing motion. Chiropractic Clinics's petition to this Court was filed on March 20, 2018. The Responsive Auto Insurance Company ("Responsive") responded by filing the instant motion to dismiss Chiropractic Clinics's petition.

Florida's district courts have certiorari jurisdiction to review final orders of circuit courts acting in their appellate capacity. Fla. R. App. P. 9.030(b)(2)(B). In order to invoke such jurisdiction, the petitioner seeking review must file the petition within thirty days of rendition of the order to be reviewed. Fla. R. App. P. 9.100(c)(1) ; Pitzer v. Bretey, 95 So.3d 1005, 1006 (Fla. 2d DCA 2012). Thus, in order for us to have jurisdiction to review the appellate division's June 12, 2017 opinion, Chiropractic Clinics's petition would have to have been filed within thirty days of June 12, 2017. Chiropractic Clinics's petition was not filed until March 20, 2018.

Similarly, Chiropractic Clinics's August 21, 2017 rehearing motion did not toll the rendition of the appellate division's June 12, 2017 opinion or extend the time for issuance of the appellate division's mandate. Only timely rehearing motions-i.e., those filed within fifteen days of the filing of the opinion-extend the time for issuance of the mandate. Fla. R. App. P. 9.340(b) ; Pitzer, 95 So.3d at 1006 (stating that "because [Pitzer] filed no timely and authorized post-opinion motion, rendition was not tolled").

We therefore grant Responsive's motion and dismiss Chiropractic Clinics's petition.

Petition dismissed.

      While the rules of appellate procedure provide no mechanism to "strike" a mandate, Florida Rule of Appellate Procedure 9.340(a), promulgated pursuant to section 43.44 of the Florida Statutes, provides that an appellate court may recall its mandate within one hundred twenty days of its issuance. We assume the appellate division treated Chiropractic Clinics's motion to strike as one seeking to recall the appellate division's July 25, 2017 mandate.


author: EMAS, J.

text:
    ASA COLLEGE, INC., etc., Appellant, v. DEZER INTRACOASTAL MALL, LLC, etc., Appellee.
    No. 3D16-1381
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018.
    Cole, Scott & Kissane, P.A., and Alexandra Valdes, Miami, and Scott A. Cole, Key West, for appellant.
    Coffey Burlington, P.L., and Susan E. Raffanello, Miami, for appellee.
    Before EMAS, SCALES and LUCK, JJ.
   EMAS, J.

ASA College, Inc. ("ASA") appeals the trial court's order denying ASA's motion for temporary injunctive relief and granting temporary injunctive relief to Dezer Intracoastal Mall, LLC ("Dezer"). For the reasons that follow, we reverse the denial of ASA's motion, but affirm the order, insofar as it grants Dezer's motion.

BACKGROUND

The dispute between ASA and Dezer arose out of their respective ownership of two parcels located within the Intercoastal Mall in North Miami Beach (the "Mall Property"). In 2013, Dezer purchased what is hereinafter referred to as the "Center Parcel" and, thereafter, ASA purchased what is hereinafter referred to as the "Office Parcel." When ASA and Dezer purchased their respective parcels, each was subject to an easement-the Amended and Restated Shopping Center Operation and Reciprocal Easement Agreement ("REA")-executed in 1997 by the prior owners of the Center Parcel and the Office Parcel.

In 2014, ASA began operating a college on the Office Parcel, and, according to ASA, Dezer thereafter attempted to limit ASA's ability to utilize certain common-area parking areas of the Center Parcel, which it was entitled to use under the terms of the REA. Specifically, according to ASA, Dezer erected fences on the Center Parcel and advised ASA that it would place signage and implement a window sticker system which would limit ASA and its guests to parking only in a specified portion of the Center Parcel.

ASA sued, seeking, inter alia, temporary and permanent injunctive relief asserting that Dezer violated the REA by interfering with ASA's ability to use the Center Parcel common-area parking. Dezer counterclaimed for, inter alia, temporary and injunctive relief, asserting that, pursuant to the REA, ASA was prohibited from operating a college on the Office Parcel.

ASA's motion for temporary injunction requested the court to enjoin Dezer from "erecting large green fences on common parking areas which ASA has the right to use," and from "threatening to remove [ASA's] easement for common parking rights." Dezer's motion for temporary injunction asked the court to enjoin ASA from operating a "post-secondary educational facility, college, or any use other than office use."

Following an evidentiary hearing, the trial court denied ASA's motion for temporary injunction on the parking dispute and granted Dezer's motion, temporarily enjoining ASA from operating its college on the Office Parcel. ASA appeals, asserting that, as to the parking dispute, the trial court incorrectly construed the terms of the REA, resulting in an erroneous conclusion that ASA could not demonstrate a substantial likelihood of success on the merits. ASA also contends that the trial court abused its discretion in granting Dezer's motion for temporary injunction on the office use dispute. We address each issue in turn.

THE PARKING DISPUTE

Generally, a party seeking a temporary injunction "must establish that: (1) irreparable injury will result if the injunction is not granted, (2) there is no adequate remedy at law, (3) the party has a clear legal right to the requested relief, and (4) the public interest will be served by the temporary injunction." Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So.2d 842, 843 (Fla. 3d DCA 2007). "A preliminary injunction is an extraordinary remedy which should be granted sparingly." Garcia v. Dumenigo, 46 So.3d 1085, 1087 (Fla. 3d DCA 2010) (quoting City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So.2d 750, 752 (Fla. 1st DCA 1994) ) (additional citation omitted).

In denying ASA's motion for temporary injunction on the parking dispute, the trial court determined that ASA had proven all of the requisite prongs for obtaining the injunction, with the exception of demonstrating a substantial likelihood of success on the merits. Specifically, the court determined that, although the REA contains general language providing ASA an easement to park in certain common-area parking areas in the Center Parcel, a more specific provision of the REA limits ASA to 100 parking spaces in the Office Parcel, and therefore, ASA could not demonstrate a substantial likelihood of success on the merits of its action.

Although we generally review such orders for an abuse of discretion, AnchorSeafood, 971 So.2d at 843, to the extent the order is based on the trial court's interpretation of a contract, we apply a de novo standard of review. Telemundo Media, LLC v. Mintz, 194 So.3d 434, 435 (Fla. 3d DCA 2016). See also Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1258 (Fla. 2017) (holding: "The standard of review of trial court orders on requests for temporary injunctions is a hybrid. To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review") (internal citation omitted).

Because the trial court's denial of ASA's motion was premised upon its construction of the terms of the REA, we apply the de novo standard of review. Applying this standard, we conclude that the trial court erred in its construction of the REA, and that, under a correct construction of the terms of the REA, ASA satisfied the "substantial likelihood of success on the merits" prong.

The relevant sections of the REA provide:

ARTICLE I
DEFINITIONS
As used in this REA, the following terms have the following meanings:
...
1.3. Common Area .
"Common Area" means all areas within the boundary of the Center Parcel or Office Parcel that are, or are designated or intended to be, available for the non-exclusive use, convenience and benefit of all Occupants (as hereinafter defined) of the Office Parcel and Center Parcel and their respective Permittees (as hereinafter defined).
Among other things, Common Area includes by way of illustration and not of limitation: (a) Access Roads; (b) the Parking Area (as hereinafter defined) ; (c) sidewalks and walkways ...
...
1.9. Occupant
"Occupant" or "Occupants" means any Person entitled by Lease to use and occupy any area within the Center or the Office Parcel.
...
1.11. Parking Area ..
"Parking Area" means all areas in the Center or Office Parcel which are set apart or used from time to time for automobile and other vehicle traffic and parking , including, without limitation, traffic lanes, aisles and roadways (including Access Roads) and curbs adjacent thereto; vehicle parking stalls at grade or in multi-level parking decks; pedestrian walkways, grade separations, including retaining walls; lighting standards; and traffic and directional signals and all amenities relating thereto.
1.12. Party .
A "Party" means Center Owner or Office Owner and "Parties" mean all of the foregoing, or any successor Person(s) acquiring the leasehold and/or fee interest, as the case may be, of a Party in or to any portion of such Party's Parcel.
1.13. Permittees
"Permittees" means all Occupants and their respective officers, directors, employees, agents, partners, contractors, customers, visitors, invitees, licensees and concessionaires.
...
ARTICLE II
EASEMENTS
2.1. Definitions and Documentation .
For purposes of this Article, the following will apply:
(a) All rights, privileges and easements granted herein for the benefit of a Party (the "Grantee") are nonexclusive and in common with the party granting such rights, privileges and/or easements (the "Grantor") and, unless provided otherwise, are irrevocable and for the benefit of each of the Parties hereto and their respective successors and assigns as owners of their respective Parcels.
...
2.2 Easements for Use of Common Areas (Other than Common Utility Facilities and Access Roads) .
(a) Center Owner hereby grants to Office Owner an easement in the Common Areas on the Center Parcel (other than the Access Road portions thereof referred to in Section 2.3 and the Common Utility Facilities referred to in Section 2.4) for the benefit of the Office Parcel for:
(1) ingress to and egress from the Office Parcel; and
(2) circulation, passage and parking of vehicles, subject to Section 6.2 ; and
(3) circulation, passage and accommodation of pedestrians; provided, however, that such easements are limited to such portions of the Common Area of the Center Parcel as are set aside, required and authorized for such use.
(b) Office Owner, to the extent any portion of the Office Parcel constitutes roadway, pedestrianways or parking spaces, hereby grants to Center Owner an easement in the Common Areas on the Office Parcel for the benefit of the Center Parcel for:
(1) ingress to and egress from the Center Parcel; and
(2) circulation, passage and parking of vehicles; and
(3) circulation, passage and accommodation of pedestrians; provided, however, that such easements are limited to such portions of the Common Area of the Office Parcel as are set aside, required and authorized for such use.
...
ARTICLE VI
PARKING REQUIREMENTS
6.1. Parking Spaces.
Occupants of the Office Parcel and their Permittees shall have the right to use up to one hundred (100) non-designated parking spaces on the Office Parcel for parking automobiles, subject to those rules and regulations applicable to other users of parking spaces thereon.
6.2. Charges for Parking; Employee Parking Areas .
No specific charge shall be made to or collected from any Occupants or Permittees on the Office Parcel for the right to park vehicles in the Parking Areas other than the payment by Office Owner of its share of the Common Area expenses.

Although section 6.1 establishes a limit of 100 parking spaces on the Office Parcel that may be used by Occupants of the Office Parcel (e.g., ASA) and their Permittees, there is no similar limitation on the easement granted in section 2.2(a) for parking by the Office Owner (i.e., ASA) in the common areas located within the Center Parcel. The only limitation on the easement established in section 2.2(a) is that it is "subject to section 6.2," which simply provides that the Occupants or Permittees on the Office Parcel shall not be charged for parking, other than what Office Owner (ASA) must pay as its share of common area expenses.

Thus, contrary to the trial court's interpretation that the "specific provision" of section 6.1 controls over the REA's "general contents," there is no conflict between sections 2.2(a) and 6.1, and thus no need to determine which provision "controls." Instead, the plain language contained within these two provisions can be read in harmony: under section 6.1, the Office Parcel's occupants and permittees (including ASA) have the right to use up to 100 spaces for parking on the Office Parcel, and, additionally under section 2.2(a), the Office Owner (ASA) has an easement to use the common-area parking areas of the Center Parcel, which is not limited in any manner by section 6.2. See City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla. 2000) (acknowledging "the rule of construction requiring courts to read provisions of a contract harmoniously in order to give effect to all portions thereof").

Accordingly, because we conclude that the trial court erred in its interpretation of the plain language of the REA, resulting in an erroneous determination that ASA failed to establish a substantial likelihood on the merits (while finding ASA satisfied the remaining prongs needed for a temporary injunction), we reverse the court's denial of ASA's motion for a temporary injunction and remand for entry of a temporary injunction in favor of ASA. See St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So.3d 728 (Fla. 1st DCA 2009) (reversing denial of motion for temporary injunction where trial court's construction of contract conflicted with its plain meaning and thus, holding it was error for the trial court to find that appellant failed to demonstrate a substantial likelihood of success on the merits).

THE OFFICE USE DISPUTE

In temporarily enjoining ASA's operation of a college on the Office Parcel, the trial court determined that Dezer had established the requisite elements for obtaining such relief, to wit: irreparable injury, no adequate remedy at law, a substantial likelihood of success on the merits and that the injunction will serve the public interest.

Article VII of the REA provides in pertinent part:

ARTICLE VII
GENERAL COVENANTS
...
7.2. Limitation on Detrimental Characteristics
No use, operation or occupancy will be made, conducted or permitted on any part of the Office Parcel which use or operation is obviously detrimental to the operation of the Center in the reasonable judgment of Center Owner. Included among the uses or operations which are prohibited because of their obvious detriment to retail stores, merchandise or services usually found in a retail center, as well as their obvious detrimental effect upon the general appearance of the Center are uses or operations which produce or are accompanied by characteristics such as, but not limited to, the following:
(a) Any noise, litter, odor or other activity which may constitute a public or private nuisance;
(b) Any physically damaging or dangerous hazards;
(c) Any dumping, disposal, incineration or reduction of garbage or refuse; or
(d) Any use of the Office Parcel for other than office use.

We find no abuse of discretion in the trial court's decision to temporarily enjoin ASA from operating a college on the Office Parcel, pending a final decision on the merits. Although ASA is correct that the purpose of a temporary injunction, generally, is to preserve the status quo, Garcia v. Dumenigo, 46 So.3d 1085, 1087 (Fla. 3d DCA 2010), this is only so where a failure to maintain the status quo will result in irreparable injury. Wexler v. Lepore, 878 So.2d 1276 (Fla. 4th DCA 2004). And this court has previously held that where a restrictive covenant is involved, the party seeking to enforce the covenant need not establish irreparable injury. Jack Eckerd Corp. v. 17070 Collins Ave. Shopping Ctr., Ltd., 563 So.2d 103, 105 (Fla. 3d DCA 1990). In addition, "a mandatory injunction is the proper means of enforcing a restrictive agreement affecting real estate." Fox v. Madsen, 12 So.3d 1261, 1263-64 (Fla. 4th DCA 2009). Accordingly, we affirm the trial court's order granting Dezer's motion for temporary injunctive relief.

Affirmed in part, reversed in part, and remanded with directions and for further proceedings consistent with this opinion.

      This prong is alternatively described as a substantial likelihood of prevailing on the merits. See Miami-Dade Cty. v. Concrete Structures, Inc., 114 So.3d 333 (Fla. 3d DCA 2013).

      We find no merit in ASA's additional arguments on appeal.


author: Wolf, J.

text:
    REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC, Appellant/Petitioner, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee/Respondent.
    Nos. 1D17-3858 1D17-3883 1D17-4092
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Geoffrey D. Smith, Timothy B. Elliott, and Corinne T. Porcher of Smith & Associates, Tallahassee, for Appellant/Petitioner.
    Stephen A. Ecenia, J. Stephen Menton, Tana D. Storey, Craig D. Miller, and Gabriel F. V. Warren of Rutledge Ecenia, P.A., Tallahassee, for Appellee/Respondent.
    William Roberts, Deputy General Counsel, and Tracy C. George, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Respondent.
   Wolf, J.

Rehabilitation Center at Hollywood Hills, LLC (the facility) challenges 3 emergency orders entered by the Agency for Health Care Administration (AHCA) after 8 of the facility's residents died during the aftermath of Hurricane Irma when the facility lost power to its air conditioner.

In case 1D17-3883, AHCA issued an Immediate Moratorium on Admissions, prohibiting the already-evacuated facility from admitting new residents. In 1D17-3858, AHCA issued an Immediate Suspension Final Order (ISFO), which suspended the facility's participation in the Medicaid program. In 1D17-4092, AHCA issued an Emergency Suspension Order, which suspended the facility's license to operate as a nursing home.

The facility filed petitions for writ of certiorari challenging the Immediate Moratorium on Admissions and the Emergency Suspension Order, which were non-final orders, and a notice of appeal challenging the ISFO, which was a final order. These cases are consolidated for purposes of this opinion.

The facility asserts that all three orders fail to provide sufficient specific factual allegations justifying emergency action. In addition, it asserts that AHCA failed to provide an administrative hearing following the ISFO.

We determine the challenge to the Immediate Moratorium on Admissions in case 1D17-3883 is moot in light of the subsequent Emergency Suspension Order in case 1D17-4092, which suspended the facility's license to operate a nursing home. We find that the orders in cases 1D17-3858 and 1D17-4092 contain sufficient factual allegations to support their imposition.

As to the failure to provide an administrative hearing after the ISFO, we affirm because the record does not demonstrate the facility requested a hearing, and the facility failed to raise an issue concerning the order's failure to apprise the facility of a point of entry into the administrative proceeding until the reply brief. Therefore, the issue is not properly before this court on appeal.

I. FACTS

Immediate Moratorium on Admissions, 1D17-3883

On September 13, 2017, AHCA issued the Immediate Moratorium on Admissions, which prohibited the facility from "admit[ting] for services any individual." The order made the following factual findings:

a. On September 10, 2017, [the facility] became aware that its air conditioning equipment had ceased to operate effectively.
b. In addition to contacting the local electrical power provider, [the facility] situated eight (8) portable air coolers throughout the facility and equipped the halls with fans.
c. Between 1:30 AM and 5:00 AM on September 13, 2017, several residents suffered respiratory or cardiac distress. Eight (8) of those residents ultimately expired.
d. Emergency personnel and law enforcement responding to these multiple emergency medical events directed [the facility], as a result of the heat in the building, to evacuate the second floor of the Facility.
e. [The facility] ultimately evacuated the entire building.

Based on these facts, AHCA concluded that a moratorium was necessary because the "practices and conditions at the [facility]" presented an "immediate serious danger" or "threat" to the residents. It found the "[facility's] deficient conduct is widespread and places all future residents at immediate threat to their health, safety, and welfare. The [facility] has demonstrated that its physical plant cannot currently provide an environment where residents can be provided care and services in a safe and sanitary manner." AHCA asserted the moratorium was necessary because the facility's "deficient practice exist [sic] presently; have existed in the past, and more likely that not will continue to exist" without intervention. AHCA reasoned the residents needed protection from the "unsafe conditions and deficient practices" at the facility because it was "ill-equipped to provide for resident health, safety, and welfare," and "the statutory and regulatory mechanisms enacted for their protection have been breached." AHCA concluded this remedy was the least restrictive action the agency could have taken and was narrowly tailored.

As supporting authority, AHCA cited sections 120.60 and 408.814, which permit it to take emergency action when it finds an immediate threat to public safety, health, safety, or welfare. §§ 120.60(6), 408.814(1), Fla. Stat. (2017). It also cited section 400.141, Florida Statutes, which requires nursing homes to maintain their facilities in a safe manner, and section 400.102, which permits the agency to act where nursing home staff commits an intentional or negligent act that materially affects the health and safety of residents. §§ 400.141(1)(h), 400.102(1), Fla. Stat. (2017).

Immediate Suspension Final Order, 1D17-3858

On September 14, 2017, AHCA issued an ISFO suspending the facility from participating in the Medicaid program. The order incorporated by reference the factual findings from the Immediate Moratorium on Admissions and added the following findings:

3. Between 1:30 a.m. and 5:00 a.m., on September 13, 2017, several residents suffered respiratory or cardiac distress. Eight (8) of those residents ultimately expired.
4. Shortly after 4:00 a.m. on September 13, 2017, the City of Hollywood Police Department and Hollywood Fire Rescue responded to a call for service at the [ ] facility. Several patients were found in varying degrees of medical distress, three patients were found deceased, and others were in need of immediate transport.
5. Due to the conditions of the facility, Hollywood Police Department and Hollywood Fire Rescue mobilized nine (9) rescue units to evacuate all of the remaining patients.
6. ... The facility is located directly across the street from a hospital ....
7. The hospital ... was operational and able to receive patients.
....
11. The matter remains under active criminal investigation.

The order reiterated the conclusion from the moratorium that the "practices and conditions" at the facility presented an immediate serious danger to the residents.

As authority, the order cited section 409.913, Florida Statutes, and Florida Rule of Administrative Procedure 59G-9.070, which permit AHCA to suspend Medicaid participation upon information of patient abuse or neglect, and section 120.569(2)(n), which permits agencies to enter immediate final orders if an immediate danger to public health, safety, or welfare so requires.

Emergency Suspension Order, 1D17-4092

On September 20, 2017, AHCA entered an Emergency Suspension Order, suspending the facility's license to operate as a nursing home. This order contained significantly more factual findings. As to the availability of assistance for the residents, AHCA found:

Due to the active state of emergency of Hurricane Irma, the Florida Emergency Operations Center was actively staffed to assist with critical incidents. Additional emergency resources through several state and local government agencies were also available. This includes potential assistance with timely evacuation, which the Facility never requested.

After reviewing medical records, AHCA made specific factual findings for the 8 deceased residents, several of whom had documented body temperatures of between 107-109.9 degrees when they died, though facility staff later went back and entered logs reflecting relatively normal body temperatures.

Residents number 2, 1, 8, and 7 all died at the hospital with elevated body temperatures. For resident number 2, facility records showed that at 7 p.m. on September 12, the resident's temperature was 99.8 degrees. At 4:32 a.m. on September 13, hospital records show the resident arrived in cardiac arrest with a body temperature of 108.3 degrees . However, 10 minutes later, at 4:42 a.m., a nurse at the facility entered a note that the patient's temperature was 101.6 degrees. AHCA found the "nursing note, though not so designated by staff, is an apparent 'late entry' as the resident had already been transported to the hospital at the time of the note's entry .... It is extremely disturbing that the facility made a late entry claiming the temperature of 101.6, when the resident was already dying at the hospital with a temperature of 108.3." (Emphasis supplied).

Similarly for resident number 1, a "late entry" in the facility's records reflected a temperature of 97 degrees at midnight. The resident was discovered in respiratory distress with blue lips at 1:30 a.m. and emergency services were contacted. At 3:43 a.m., the hospital documented the resident's temperature to be 107 degrees . The patient died "with a diagnosis of heat stroke."

Resident number 8 had a temperature of 98.2 degrees on the afternoon of September 12, and a temperature of 101 degrees at 3:31 a.m. on September 13, according to facility records. A "late entry" with no time description stated the resident went into respiratory distress. Emergency services were called. The resident arrived at the hospital at 6:42 a.m. with complaints of heart attack and "severe hyperthermia." The patient died 7 minutes later with a body temperature of 109.9 degrees .

Resident 7 had a body temperature of 97 degrees at 10:34 p.m. on September 12 according to facility records. At 6:55 a.m. on September 13, emergency medical records reflected the patient had an altered mental state, hyperthermia, and respiratory distress. The resident's temperature at the time was documented as 103.3 degrees and the skin was "hot." Hospital records stated the patient was admitted at 7:03 a.m. without a pulse. The patient was pronounced dead at 7:54 a.m. with a body temperature of 108.5 degrees .

For patient 5, facility records reflected a temperature of 98.6 degrees at 2:20 p.m. on September 12. A "late entry" dated September 14 at 8:15 documented that the patient was resting in bed with even and unlabored breathing. However, the resident "had expired before this entry was made. " AHCA found that no other documentation regarding the patient's condition or hospitalization was made for review.

Residents 4, 6, and 3 died at the facility between midnight and 1:30 a.m. on the morning of September 13. The facility did not record their body temperatures at the time of death. Resident 4 died of cardiac arrest, resident 6 was found unresponsive by facility staff, and no circumstances surrounding the death of resident 3 were provided.

AHCA found that the facility "knew or should have known the danger presented to its residents in its physical plant, yet failed to monitor, care for, and protect its residents. [Its] sole identified response was to belatedly call '911' on an individual basis as its residents suffered, one after another, cardiac or respiratory arrest," and they arrived at the hospital "too far gone and far too late to be saved." The facility was "located across the street from a large, air-conditioned public hospital," which was "fully functional," yet the facility "failed to transfer its residents ... in a timely fashion." "These core body temperatures are the product of the facility's failure to maintain a safe environment at the facility, failure to properly monitor its patients, and failure to timely report an ongoing medical emergency. [The facility]'s records are replete with late entries."

The agency "conclude[d] that this facility's administrator and medical professionals did not know to call '911' in an ongoing emergency. As such, this facility presents a danger to every person on its premises ...." AHCA determined the facility's deficient practices were an immediate, serious danger to public health, safety, and welfare, were likely to continue without intervention from AHCA, and less restrictive actions, such as the assessment of fines, would not ensure future residents' safety. Thus, AHCA found the emergency suspension of the facility's license was a necessary and narrowly tailored remedy.

II. ANALYSIS

A. Sufficiency of the Immediate Order on Moratorium of Admissions

The facility petitions this court for a writ of certiorari to quash the Immediate Moratorium on Admissions, arguing it contained insufficient factual allegations to justify emergency action. This order contains the least factual allegations of the three emergency orders. However, AHCA argues this issue is moot because this order suspending the admission of new patients was subsumed by the Emergency Suspension Order, which suspended the facility's license to operate.

The facility argues this issue is not moot for two reasons. First, the facility argues AHCA may use the moratorium as grounds to impose future penalties. Section 400.121(3)(a), Florida Statutes, provides that AHCA "shall revoke or deny a nursing home license" if a facility "[h]as had two moratoria issued pursuant to this part or part II of chapter 408 which are imposed by final order for substandard quality of care ... within any 30-month period." (Emphasis added). However, the moratorium was not issued "by final order." It is a non-final order. Thus, this argument is without merit.

Second, the facility argues the harm imposed by the moratorium cannot be remedied by an administrative hearing because it will be unable to resume operations until after the administrative proceedings are concluded. However, even if this court quashes the moratorium, the facility will still be unable to resume operations due to the suspension of its license through the Emergency Suspension Order, which we find to be sufficient.

A reversal of the moratorium can have no actual effect on the facility. As such, this issue is moot. See Godwin v. State , 593 So.2d 211 (Fla. 1992) ("An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. A case is 'moot' when it presents no actual controversy or when the issues have ceased to exist."). Accordingly, the petition for writ of certiorari is denied as to this order.

B. Immediate Suspension Final Order

The facility filed an appeal challenging the ISFO on two bases: (1) there were insufficient factual allegations to support the order; and (2) AHCA failed to provide an administrative hearing following entry of the order.

(1) Sufficiency of Factual Allegations

The ISFO was entered pursuant to section 409.913, which states that if AHCA "has received reliable information of patient abuse or neglect," AHCA may enter an "[i]mmediate suspension" from the Medicaid program, provided that it "issue an immediate final order under s. 120.569(2)(n)." § 409.913(15)(p), (16)(d), Fla. Stat. Section 120.569(2)(n) states that "[i]f an agency head finds that an immediate danger to the public health, safety, or welfare requires an immediate final order, it shall recite with particularity the facts underlying such finding in the final order, which shall be appealable or enjoinable from the date rendered." § 120.569(2)(n), Fla. Stat. (emphasis added).

"The standard of review of an immediate final order is whether, on its face, the order 'sufficiently states particularized facts showing an immediate danger to the public welfare.' " Robin Hood Grp., Inc. v. Fla. Office of Ins. Regulation , 885 So.2d 393, 396 (Fla. 4th DCA 2004) (quoting Saviak v. Gunter , 375 So.2d 1080 (Fla. 1st DCA 1979) ). Immediate final orders "must contain facts sufficient to demonstrate: (1) Immediate, serious danger to the public health, safety, or welfare; (2) The order takes only that action necessary to protect the public considering the emergency (i.e., the remedy is tailored to the harm); and, (3) Procedural fairness under the circumstances (the procedure provides at least the same procedural protection given by other statutes, or the state or federal Constitutions)." Allstate Floridian Ins. Co. v. Office of Ins. Regulation , 981 So.2d 617, 623 (Fla. 1st DCA 2008).

The facility argues the final order fails to expressly allege abuse or neglect, or a direct causal relationship between the heat and the death of the residents. It argues the order fails to address whether there was any evidence of excessive heat in the facility, whether the patients' deaths could have been caused by the negligence of the first responders or "transfer trauma," whether the deaths would have occurred regardless of the hurricane, or whether the patients were in the facility when they "ultimately expired." The facility also argues the order did not specify whether power had been restored or whether emergency conditions still existed at the time the order was entered. It asserts the order could have been more narrowly tailored to suspend participation in the Medicaid program only until power was restored or generators were installed. Alternatively, the facility argues a range of less severe disciplinary sanctions such as fines or liens were available under section 409.913 for Medicaid providers.

Because the order reflects that the facility was evacuated, the facility argues there can be no finding of an ongoing emergency. Instead, the facility argues it is effectively being disciplined for past behavior, and disciplinary proceedings must be brought through a chapter 120 hearing after notice, not through an immediate final order.

AHCA argues these allegations are sufficient. It emphasizes that courts have considered whether or not harm has already occurred as a significant factor in determining whether there is an immediate danger to the public.

In Tauber v. State Board of Osteopathic Medical Examiners , 362 So.2d 90, 93 (Fla. 4th DCA 1978), the Fourth District found the emergency suspension of a doctor's license was justified, even though the alleged malpractice occurred 110 days before, because the court could "conceive of no greater emergency of immediate necessity than that which endangers the preservation of human life." However, courts have been more reticent to find a continuing danger where a violation did not result in harm. See St. Michael's Acad., Inc. v. Dep't of Children & Families , 965 So.2d 169, 172 (Fla. 3d DCA 2007) (quashing emergency order in part because there was no allegation that any child had suffered injury or harm); Daube v. Dep't Of Health , 897 So.2d 493, 494 (Fla. 1st DCA 2005) (finding emergency order suspending a doctor's license based on allegations that he used an unauthorized Botox procedure was too broad where there was no evidence that a patient was injured, and order could have simply required him to stop using the unapproved product).

Here, AHCA alleges that 8 patients have already died, which is a significant factor in determining whether there is an immediate danger to the public.

AHCA also correctly notes that nothing in section 409.913 permits it to issue a suspension from the Medicaid program contingent upon conditions like those suggested by the facility, such the restoration of power or the installation of a generator. To the contrary, section 409.913(16)(d) mandates that it "shall impose" an "[i]mmediate suspension, if the agency has received information of patient abuse or neglect."

Though the allegations could have been more specific, the order sufficiently implied a serious failure by staff to protect the residents from dangerous conditions present in the facility. See Bertany Ass'n for Travel & Leisure, Inc. v. Fla. Dep't of Fin. Servs. , 877 So.2d 854, 855-56 (Fla. 1st DCA 2004) (finding allegations in emergency order were sufficient to "support an inference" that unauthorized activity "may continue absent a cease and desist order").

While the facility is correct that emergency orders cannot be used to discipline prior conduct, prior conduct is relevant to determining future risk. "There is ample precedent supporting the suspension of a licensee upon [a] showing of past harm when the harm is sufficiently serious and of a nature likely to be repeated." Stock v. Dep't of Banking & Fin. , 584 So.2d 112, 115-16 (Fla. 5th DCA 1991) (finding agency was justified in revoking license where banker withdrew money from a customer's account 8 times over a 12 month period, totaling over $60,000).

In contrast, "where the past conduct significantly pre-dates the emergency order and there is nothing else in the licensee's history that would support an inference of continuing bad conduct, allegations of past harm standing alone are insufficient to support the emergency suspension or restriction of a license." Omulepu v. State, Dep't of Health , 198 So.3d 1046, 1047 (Fla. 1st DCA 2016). In Omulepu , this court reversed an emergency order that alleged a plastic surgeon committed malpractice while operating on several patients 9 months prior to the entry of the emergency order. Because there were no allegations of misconduct prior to or after the alleged incidents, there was no indication that the doctor's past conduct was likely to continue. Id. at 1047-48.

Here, unlike Omulepu , the emergency order was entered very quickly after the alleged conduct. The order did not allege an isolated incident or a single mistake in judgment. Instead, it alleged that a total of 8 patients died over the course of several hours, 3 prior to the arrival of first responders, in a facility so hot the first responders evacuated it. The facility staff failed to evacuate the patients to the open hospital across the street even after multiple patients suffered medical distress and several died. This order sufficiently alleged an immediate, serious danger to the public health, safety, or welfare. AHCA was statutorily required to suspend the facility's Medicaid participation upon evidence of patient abuse or neglect. Thus, the order could not have been more narrowly tailored.

(2) Failure to Provide an Administrative Hearing

The facility complains that AHCA erred by not providing an administrative hearing and that we should overturn the order and remand for such a hearing. There is no requirement that a hearing be held prior to the issuance of an emergency order. The question of whether AHCA was required to provide a post-order hearing is not properly before this court. The record does not reflect that the facility requested such a hearing. We, therefore, decline to rule on this issue because it was not properly preserved. See Rosenzweig v. Dep't of Transp. , 979 So.2d 1050, 1052 (Fla. 1st DCA 2008) ("[A]ppellants waived their right to go to a formal hearing ... by not requesting a formal hearing at any time.")

In its reply brief, the facility argues for the first time that the text of the final order was required to provide notice of the right to an administrative hearing, and the lack of this notice rendered the order facially insufficient. We decline to address issues raised for the first time in the reply brief. See Parker-Cyrus v. Justice Admin. Comm'n , 160 So.3d 926, 928 (Fla. 1st DCA 2015) (citing United Auto. Ins. Co. v. Hollywood Injury Rehab. Ctr. , 27 So.3d 743, 744 n.1 (Fla. 4th DCA 2010) ("[I]ssues raised for the first time in the reply during certiorari proceedings will not be considered."); Land v. Fla. Dep't of Corr. , 181 So.3d 1252, 1254 (Fla. 1st DCA 2015) (" 'An issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.' " (quoting Hoskins v. State , 75 So.3d 250, 257 (Fla. 2011) ) ). Thus, we affirm the ISFO.

C. Emergency Suspension Order

The facility also argues that the Emergency Suspension Order, which suspended its license to operate, was facially insufficient. This argument is without merit.

The Emergency Suspension Order contained significantly more detailed factual allegations than the first two orders. It included facts alleging a causal connection between the heat and the patients' deaths. Four of the residents died soon after being admitted to the hospital with body temperatures between 107 and 109.9 degrees. However, staff members went back and created "late entry" notes reflecting that the patients had relatively normal body temperatures at a time when they were already dead or dying at the hospital.

This order also expressly alleged deficient conduct by staff, specifically, a failure to monitor patients and a failure to timely call 911 and evacuate the facility:

[The facility] knew or should have known the danger presented to residents in its physical plant, yet failed to monitor, care for, and protect its residents.
[The facility's] sole identified response was to belatedly call '911' on an individual basis as its residents suffered, one after another, cardiac or respiratory arrest. In addition, [the facility] was located across the street from a large, air-conditioned public hospital. This hospital was fully functional during the relevant period, yet [the facility] failed to transfer its residents to that large, air-conditioned public hospital, or any other appropriate placement, in a timely fashion.

This order also contained specific reasons for concluding that the danger to residents would not end when the power was restored and that suspension was necessary. AHCA concluded that "this facility's administrator and medical professionals did not know to call '911' in an ongoing emergency. As such, this facility presents a danger to every person on its premises." Thus, the suspension of the facility's license was necessary to protect the residents from "unsafe conditions and deficient practices."

Contrary to the facility's argument, AHCA alleged this conduct violated the law. Specifically, it violated section 400.141(1)(h), Florida Statutes, which requires facilities to operate the premises "in a safe and sanitary manner," and section 400.102(1), Florida Statutes, which states AHCA may take action against a license in the event of "[a]n intentional or negligent act materially affecting the health or safety of residents of the facility."

These allegations are more than sufficient. The order did not merely allege a single lapse in judgment, but instead a failure to act towards multiple patients over the course of many hours, which led AHCA to conclude the staff did not know to call 911 in an emergency. Thus, this order contained sufficiently detailed allegations of an immediate serious danger that was likely to continue without the suspension, which could not have been more narrowly tailored. See § 120.60(6)(c), Fla. Stat.; Sanchez v. Dep't of Health , 225 So.3d 964, 966 (Fla. 1st DCA 2017) ; Preferred RV, Inc. v. Dep't of Highway Safety & Motor Vehicles , 869 So.2d 713, 714 (Fla. 1st DCA 2004). As such, the order was facially sufficient.

The order in case number 1D17-3858 is AFFIRMED . The petitions for writ of certiorari in case numbers 1D17-3883 and 1D17-4092 are DENIED .

Roberts and Wetherell, JJ., concur.


author: PER CURIAM.

text:
    Joseph B. TURNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-428
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 22, 2018 Rehearing Denied August 13, 2018
    Joseph B. Turner, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

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

LAMBERT, J., concurs specially, with opinion.

LAMBERT, J., concurs specially.

Joseph B. Turner is appealing the postconviction court's summary denial of his successive Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. He is presently serving a twenty-year prison sentence as a habitual violent felony offender ("HVFO") for robbery, consecutive to a lengthy prison sentence that he is serving in an unrelated case. Turner was also designated and sentenced to serve fifteen years in prison as a prison releasee reoffender ("PRR") for the robbery conviction. By statute, Turner is required to serve 100% of the PRR portion of his sentence. See § 775.082(9)(b), Fla. Stat. (2003).

In the present appeal, Turner argues, as he did below, that his written judgment and sentence is illegal because it also contains a ten-year minimum mandatory provision regarding his HVFO sentence that was not orally pronounced by the trial judge at sentencing. See Regino v. State , 921 So.2d 845, 845 (Fla. 2d DCA 2006) (reversing postconviction court's denial of defendant's rule 3.800(a) motion because the trial court did not orally pronounce a minimum mandatory term for the HVFO sentence).

Turner unsuccessfully raised this same claim in an earlier rule 3.800(a) motion to correct illegal sentence. We affirmed Turner's appeal of that denial order without opinion. See Turner v. State , 228 So.3d 581 (Fla. 5th DCA 2017). In denying Turner's present, successive rule 3.800(a) motion, the lower court correctly recognized that while the filing of successive rule 3.800(a) motions is not forbidden, see White v. State , 41 So.3d 257, 257 (Fla. 3d DCA 2010), a defendant is barred by the doctrine of collateral estoppel from relitigating the same issue raised in an earlier rule 3.800 motion decided adversely to the defendant. See State v. McBride , 848 So.2d 287, 290-91 (Fla. 2003). Accordingly, I agree with the court's denial of Turner's instant motion based upon collateral estoppel.

Turner separately argues that collateral estoppel should not act as a bar when doing so would cause a manifest injustice. However, even if Turner's sentence is illegal for the reason that he argues, "the mere existence of an illegal sentence is not equivalent to a manifest injustice." Dennard v. State , 157 So.3d 1055, 1056 (Fla. 4th DCA 2014). For example, in McBride , the court held that the application of collateral estoppel to bar the defendant's rule 3.800(a) claim of illegal sentence would not result in manifest injustice because although the defendant's habitual felony offender sentence on one count was illegal, he was serving concurrent prison terms of equal length on other counts. 848 So.2d at 292.

Here, there is no manifest injustice. Turner is serving fifteen years in prison, day-for-day, as a PRR. Whether his HVFO sentence does or does not include a ten-year minimum mandatory provision has no effect on Turner's longer PRR sentence or the amount of time Turner will serve in prison, nor has he alleged that it will.


author: MORRIS, Judge.

text:
    Zdzislaw Jesse ROZANSKI, Appellant, v. WELLS FARGO BANK, N.A., and Halina Kwiatkowski, Appellees.
    Case No. 2D16-3800
    District Court of Appeal of Florida, Second District.
    Opinion filed June 22, 2018
    Alexander Allred of Castle Law Group, P.A., Largo, for Appellant.
    Martin S. Awerbach and Michael A. Cohn of Awerbach | Cohn, Clearwater, for Appellee Wells Fargo Bank, N.A.
    No appearance for remaining Appellee.
   MORRIS, Judge.

Zdzislaw Rozanski appeals a partial summary judgment entered in favor of Wells Fargo Bank, N.A., imposing and foreclosing an equitable lien against Rozanski's real property. Rozanski argues that the trial court erred in allowing Wells Fargo to foreclose on the equitable lien because Wells Fargo did not show that Rozanski was in default on the loan from which the lien arose. We agree and reverse the decision of the trial court on the issue of foreclosure.

I. Facts

In 2002 Rozanski purchased the property that is the subject of this case. That same year, he married Halina Kwiatkowski. In 2003 he executed a note with Wells Fargo in the amount of $273,000, which was secured by a mortgage on the property. Both the mortgage and the note were in his name alone.

In 2007 Kwiatkowski filed for divorce from Rozanski. A final judgment of dissolution was entered in 2008, pursuant to a marital settlement agreement, granting Kwiatkowski sole possession of the property, and a quit claim deed was executed in her favor. Also in 2008, Kwiatkowksi refinanced the property through a loan with Wells Fargo in the amount of $370,000, which was secured by a mortgage. A portion of this money was used to pay off the balance of Rozanski's mortgage, $321,042, and Wells Fargo issued a release of Rozanski's mortgage.

In 2012 Wells Fargo filed a complaint for mortgage foreclosure against Kwiatkowski. In 2014 Wells Fargo added Rozanski as a defendant. He answered, alleging that the quit claim deed conveying ownership to Kwiatkowksi was a forgery. In the dissolution case, Rozanski obtained a judgment setting aside the final judgment of dissolution based on fraud upon the court. In the meantime, Wells Fargo amended its complaint to allege a count to impose and foreclose an equitable lien against Rozanski's property, "under principles of subrogation," in the amount of the payoff of Rozanski's mortgage. In response to the final judgment setting aside the dissolution of marriage, Wells Fargo filed a motion for summary judgment, proceeding solely on its count to impose and foreclose an equitable lien.

After a hearing, the trial court granted Wells Fargo's motion and entered a final judgment imposing and foreclosing an equitable lien. The trial court ruled that Wells Fargo "is entitled to impose and foreclose the Equitable Lien against the Property in the Prior Mortgage Payoff amount of $321,042.02, based upon subrogation," citing Tribeca Lending Corp. v. Real Estate Depot, Inc., 42 So.3d 258 (Fla. 4th DCA 2010).

II. Analysis

On appeal, Rozanski contends that Wells Fargo had no legal or equitable basis to foreclose on the equitable lien, although he does not "take issue with the existence of the equitable lien." He argues that Wells Fargo was not entitled to foreclose on the equitable lien because he was never in default on his mortgage.

Equitable liens may be imposed to prevent unjust enrichment. See Palm Bch. Sav. & Loan Ass'n v. Fishbein, 619 So.2d 267, 270 (Fla. 1993) ; Tribeca Lending Corp., 42 So.3d at 262. "[T]he doctrine of equitable subrogation, a twin remedy to the equitable lien, is designed to apply where the claimant satisfied an obligation of another and then stands in the shoes of the satisfied creditor." Tribeca Lending Corp., 42 So.3d at 262. "As a result of equitable subrogation, the party discharging the debt ... succeeds to the right and priorities of the original creditor." Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999).

Because Wells Fargo discharged Rozanski's debt when Kwiatkowski obtained her loan in 2008, Wells Fargo succeeded to the rights and priorities it had as Rozanski's original lender and mortgagee. Therefore, Wells Fargo was entitled to the equitable lien, which Rozanski does not dispute. However, Wells Fargo was entitled to only the rights and priorities that it had at the time it satisfied Rozanski's mortgage in 2008, and Wells Fargo did not plead or demonstrate below that it had the right to foreclose on Rozanski's mortgage in 2008.

Wells Fargo argues that foreclosure of the equitable lien was proper pursuant to the decision in Fishbein, 619 So.2d 267. In Fishbein, the husband borrowed $1,200,000, secured by a mortgage on the homestead property, but he forged his wife's signature on the mortgage. Id. at 268. The loan proceeds were used to pay off three prior mortgages on the property in the amount of $930,000. Then the mortgage went into default, and the bank commenced foreclosure proceedings. Id. at 269. The parties divorced, and the wife was awarded the house. The trial court ruled that the mortgage could not be enforced against the house but that the bank was entitled to an equitable lien. The supreme court agreed that the bank was entitled to an equitable lien in the amount of $930,000. Id. at 270-71.

The court reasoned that an equitable lien was appropriate because the wife stood "in no worse position than she stood before the execution of the mortgage," noting that "[w]hen the bank made its loan, one of the prior mortgages was already overdue" and that the parties could not pay the prior mortgages. Id. Wells Fargo relies on the fact that only one of the three prior mortgages was in default in Fishbein as support for its argument "that being in default is not a required element for the ... foreclosure of the equitable lien." On the other hand, Rozanski argues that the bank could only foreclose on the equitable lien in Fishbein because at least one mortgage was overdue in that case, whereas in this case there was no evidence that Rozanski was overdue on his mortgage. However, as we read Fishbein, the court did not decide the issue of whether the bank was entitled to foreclose on the equitable lien. Rather, the court focused solely on whether the bank was entitled to imposition of an equitable lien where the wife claimed a homestead interest and had not engaged in any misconduct herself.

We also note that the facts of this case are distinguishable from Tribeca Lending Corp., 42 So.3d 258, which the trial court cited in its judgment. The party seeking the imposition and foreclosure of the equitable lien in that case, Tribeca Lending Corp., had paid off a prior mortgage, but that prior mortgage was in default and a foreclosure judgment had been entered. 42 So.3d at 260-61. Thus, Tribeca Lending Corp. was entitled to foreclose on the equitable lien in the same way the original lender was entitled to foreclose on the mortgage. Here, there was no showing that Rozanski was in default on his mortgage or that Wells Fargo was entitled to foreclose on the mortgage at the time it satisfied Rozanski's debt with the refinancing in 2008. See Brotheridge v. Option One Mortg. Corp., 67 So.3d 254, 256 (Fla. 2d DCA 2010) (noting that foreclosure of equitable lien would not be proper where debtors were not given an opportunity to make payment on the lien amount and there was no proof of any default by the debtors on their earlier obligations).

Because there was no showing that Rozanski was in default on his mortgage in 2008, the trial court erred in ordering the foreclosure of the equitable lien. We affirm the imposition of the equitable lien against Rozanski's property, but we reverse the final summary judgment to the extent that it orders foreclosure of that lien.

Affirmed in part, reversed in part, and remanded.

BADALAMENTI and ROTHSTEIN-YOUAKIM, JJ., Concur.

      The court noted that the trial court had "stayed any foreclosure sale on the equitable lien for six months to permit [the wife] to try to make a private sale of the house." Fishbein, 619 So.2d at 269. There was no other discussion regarding foreclosure of the equitable lien.