text:
    James Brandon SMITH, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 5D18-1153 5D18-1171
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018
    James Brandon Smith, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

James Brandon Smith appeals the trial court's orders summarily denying his motions for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial on all grounds except the portion of ground four of the rule 3.850 motion filed on September 2, 2015. In that motion, Smith alleged that his trial counsel was ineffective for failing to call his co-defendant, Calvin J. Tucker, as a witness at trial. Smith argues that if Tucker had been called as a witness in Smith's trial, Tucker would have said that Smith was not involved in the commission of the crime and only stated otherwise to obtain a favorable plea from the State. The trial court summarily denied this claim, finding that it lacked merit. Specifically, the court found that the motion to correct an illegal sentence filed by Tucker refuted Smith's claim that Tucker would have testified that Smith was not involved in the crime.

However, Tucker's rule 3.800(a) motion does not conclusively refute Smith's claim. Contrary to the trial court's finding, the motion does not discuss or even mention Smith's involvement in the robbery. Even if Tucker had discussed Smith's involvement in the crime in his motion to correct illegal sentence, at best this fact would create a factual dispute that would have to be resolved by an evidentiary hearing. Based upon the limited record, it cannot conclusively be said that Tucker's purported testimony would not have changed the outcome of the proceeding. Accordingly, this limited portion of ground four is reversed and remanded for the trial court to attach additional documents that would conclusively refute the claim or to hold an evidentiary hearing. See, e.g., Ford v. State, 825 So.2d 358, 361 (Fla. 2002). In all other respects, the order denying Smith's motion for postconviction relief is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

EVANDER, LAMBERT, and HARRIS, JJ., concur.


source: Caselaw Access Project

author: TRAVER, D., Associate Judge.

license: Public Domain

text:
    Rita F. BROWN A/K/A Rita F. Poole, Appellant, v. Melinda A. POOLE, Estate of David Vernon Poole and General American Life Insurance, Appellees.
    Case No. 5D17-3467
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018 Rehearing Denied January 10, 2019
    Patrick A. McGee, of McGee & Powers, P.A., Orlando, for Appellant.
    Alec D. Russell and Tiffany M. Walters, of GrayRobinson, P.A., Melbourne, for Appellee, Melinda A. Poole.
    No Appearance for other Appellees.
   TRAVER, D., Associate Judge.

Rita F. Brown, a/k/a Rita F. Poole ("Ms. Brown"), appeals the final judgment entered after a non-jury trial awarding Melinda A. Poole ("Ms. Poole") the proceeds of the General American Life Insurance Policy ("General Policy") purchased by her ex-husband, David V. Poole, M.D. ("Dr. Poole"). Ms. Brown raises four issues on appeal, two of which merit discussion: whether the trial court properly imposed a constructive trust and whether Ms. Poole filed her claims within the statute of limitations. For the reasons stated herein, this Court concludes the trial court properly imposed a constructive trust in Ms. Poole's favor on the General Policy's proceeds. Furthermore, this Court finds that Ms. Poole timely filed her claims for constructive trust and declaratory judgment. Accordingly, we affirm.

After twenty-five years of marriage, Ms. Poole and Dr. Poole divorced in November 2006. Their dissolution final judgment incorporated a marital settlement agreement from October 2006 and required that Dr. Poole pay Ms. Poole $6000 per month in alimony. The parties also agreed that Dr. Poole would secure this requirement by maintaining a $1,000,000 life insurance policy naming Ms. Poole as the irrevocable beneficiary for the duration of his alimony obligation. When he and Ms. Poole divorced, Dr. Poole already maintained the General Policy. It had a face amount of $1,000,000 and named Ms. Poole as its revocable beneficiary.

After the parties executed the marital settlement agreement, but before they divorced, Dr. Poole purchased two additional life insurance policies through a different company. Each policy had a face value of $1,000,000. One named Ms. Poole as the sole beneficiary, while the other designated Dr. Poole's parents as joint beneficiaries. Ms. Poole never knew about either of these policies. Ultimately, Ms. Brown-who became Dr. Poole's third wife in 2013-became the sole beneficiary of both policies. She received their proceeds upon Dr. Poole's death in 2015, and these sums are not a subject of this appeal.

Before he died, Dr. Poole changed the General Policy's beneficiary three times, eventually designating Ms. Brown in 2011. When Ms. Poole sought to claim the General Policy's proceeds, she learned for the first time that she was no longer the beneficiary. Within a month of Dr. Poole's death, she filed suit against Ms. Brown, Dr. Poole's estate, and General American Life Insurance, seeking the imposition of a constructive trust on the General Policy's proceeds, and alternatively, a declaratory judgment that the General Policy's proceeds belonged to her. Pursuant to court order, General American Life Insurance deposited the General Policy's proceeds into the court registry.

The trial court properly imposed a constructive trust on the General Policy's proceeds in Ms. Poole's favor. Agreements relating to life insurance policies like the one Dr. Poole and Ms. Poole reached are both common and permissible in divorce proceedings. See § 61.08(3), Fla. Stat. (2015) ; Cantrell v. Home Life Ins. Co. , 524 So.2d 1063, 1064 (Fla. 5th DCA 1988). By agreeing to designate Ms. Poole as his irrevocable beneficiary during his alimony obligation, Dr. Poole effectively divested himself of his ownership interest in the General Policy. Prudential Ins. Co. of Am. v. Boyd , 781 F.2d 1494, 1497 (11th Cir. 1986) ; Dixon v. Dixon , 184 So.2d 478, 480-81 (Fla. 2d DCA 1966). Thus, his subsequent attempts to name other beneficiaries were nullities. Boyd , 781 F.2d at 1496 ; Dixon , 184 So.2d at 480.

Florida courts have recognized that the imposition of a constructive trust is appropriate in scenarios like this, which "do not squarely fit within the traditional theories." Browning v. Browning , 784 So.2d 1145, 1147-48 (Fla. 2d DCA 2001) ; Blaney v. McCluskey , 529 So.2d 314, 316 (Fla. 1st DCA 1988). Constructive trusts have two objectives: "to restore property to the rightful owner and to prevent unjust enrichment." Provence v. Palm Beach Taverns, Inc. , 676 So.2d 1022, 1025 (Fla. 4th DCA 1996) (citing Abreu v. Amaro , 534 So.2d 771 (Fla. 3d DCA 1988) ). Courts impose constructive trusts either upon property acquired by fraud, or when it is "against equity" that someone who acquired property without fraud should continue to retain possession. See id. (citing Quinn v. Phipps , 93 Fla. 805, 113 So. 419, 422 (1927) ).

Here, there is no assertion that Ms. Brown defrauded Ms. Poole. Indeed, the parties focused their substantive arguments at trial on their respective equitable entitlement to the General Policy's proceeds. Regardless, this Court's legal determination is compelled by Dr. Poole's failure to comply with a valid final judgment from which he never appealed nor sought relief. See Browning , 784 So.2d at 1148. Dr. Poole's acquisition of other life insurance policies, one of which also originally named Ms. Poole as a revocable beneficiary, is irrelevant to this decision. See Boyd , 781 F.2d at 1497.

Furthermore, Ms. Poole timely filed her claims for a constructive trust and declaratory judgment. A four-year statute of limitations governs these claims. § 95.11(3)(p), Fla. Stat. (2015). This time did not begin to run until Dr. Poole's death. See Gartley v. Gartley , 622 So.2d 77, 78 (Fla. 2d DCA 1993) (reversing trial court's refusal to impose a constructive trust in favor of an ex-wife on an ex-husband's life insurance proceeds and finding that the ex-wife timely filed suit within four years of the ex-husband's death). Ms. Brown's claim that the five-year statute of limitations for breach of contract actions applied and began to run when Dr. Poole first breached the marital settlement agreement is misplaced. Ms. Poole could not make any claim on the General Policy's proceeds until Dr. Poole's death, and any demand for a declaratory judgment during his lifetime would not have been grounded in actual, present controversy. See May v. Holley , 59 So.2d 636, 639 (Fla. 1952) (outlining elements of a proper declaratory judgment claim). Had Ms. Poole been aware that Dr. Poole divested her as the beneficiary of life insurance proceeds securing his alimony obligation, she could have pursued remedies in family or civil court. Her unknowing failure to pursue these remedies during Dr. Poole's life, however, does not bar her from a remedy after his death. See Gartley , 622 So.2d at 78. For these reasons, Ms. Poole timely filed her claims to the General Policy's proceeds, and the trial court properly imposed a constructive trust in her favor. Thus, we affirm.

AFFIRMED.

TORPY and LAMBERT, JJ., concur.

      Dr. Poole's estate and General American Life Insurance Company are parties to this appeal, but neither entered an appearance.

      The issue of the parties' respective equitable entitlement to all or part of the General Policy's proceeds was not preserved for appeal.

      Gartley is the only opinion that makes an explicit finding that a four-year statute of limitations applies to this scenario. Other courts, however, have concluded that equitable remedies akin to those sought by Ms. Poole are appropriate in analogous factual situations. See Boyd , 781 F.2d at 1495-97 (entering declaratory judgment where the parties divorced almost eight years before the insured's death, and the surviving ex-wife filed suit two months thereafter); Lowry v. Lowry , 463 So.2d 540, 540-42 (Fla. 2d DCA 1985) (finding equitable relief was permissible when the parties' divorce decree issued fourteen years before the insured's death).


author: PER CURIAM.

text:
    CB CONTRACTORS, LLC, Appellant, v. ALLENS STEEL PRODUCTS, INC., et al., Appellees.
    Case No. 5D17-1384, 5D17-1606, 5D17-2129
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018
    David C. Borucke, of Cole, Scott & Kissane, P.A., Tampa, for Appellant.
    Carol M. Rooney, of Butler Weihmuller Katz Craig LLP, Tampa, for Appellees, Allen Steel Products, Inc. and J & S Plastering, Inc.
    Wayne Tosko and Estaban F. Scornik, of Vasquez & Tosko, LLP, Orlando, for Appellee, Saxonis Custom Painting, Inc.
    Sarah Lahlou-Amine, of Banker Lopez Gassler, P.A., Tampa, for Appellee, Farris Gypsum Floors of Florida, Inc. d/b/a Farris Floor Systems.
    Hinda Klein, of Conroy Simberg, Hollywood, for Appellee, Simpson & Ryba Construction, Inc.
    No Appearance for Other Appellees
   PER CURIAM.

We consolidate these appeals, sua sponte , to address common questions of law in these actions between Appellant, a general contractor, and Appellees, the subcontractors for a residential condominium construction project involving several buildings. After the condominium association brought an action against Appellant for defects in the construction, Appellant brought claims against Appellees for contractual and common law indemnification. The lower court granted Appellees' motions for summary judgment, concluding that the contractual indemnity claims were based upon a "void and unenforcable" contractual provision and that Appellant failed to allege the elements of common law indemnity. We affirm in part, reverse in part, and remand for further proceedings.

The contractual indemnity clauses at issue provide in material part:

11. Indemnity as to Liabilities. [Appellant] and the Owner shall not be liable or responsible for, and shall be saved and held harmless by [Appellees] from and against any and all suits, actions, losses, damages, claims, or liability of any character, type or description, including all expenses of litigation, court costs, and attorney fees arising out of, related to, directly or indirectly, the performance of the Subcontractor. Subcontractor's indemnity obligations hereunder shall apply regardless of whether or not the claims, damages, losses, and expenses or causes of action are caused in part by a party indemnified hereunder and regardless of whether or not the claim relates to a claim under the worker's compensation policy of Subcontractor. Such obligations to indemnify shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnification which would otherwise exist as to any party or person in any other portion of this Subcontract under law.

(Emphasis added). The lower court concluded that the clauses were void and unenforcable pursuant to section 725.06, Florida Statutes (2004), which provides in relevant part as follows:

Any portion of any agreement or contract for or in connection with, or any guarantee of or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating associated therewith, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman or any combination thereof wherein any party referred to herein promises to indemnify or hold harmless the other party to the agreement, contract, or guarantee for liability for damages to persons or property caused in whole or in part by any act, omission, or default of the indemnitee arising from the contract or its performance, shall be void and unenforceable unless the contract contains a monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract ....

(Emphasis added).

Because the subject indemnity clauses are only void and unenforcable as to the "portion" purporting to impose the indemnity obligation for the acts or omissions of Appellant, we conclude that the trial court erred in ruling that the entirety of the clauses are void. Cuhaci & Peterson Architects, Inc. v. Huber Constr. Co. , 516 So.2d 1096, 1097 (Fla. 5th DCA 1987) ; accord Pilot Constr. Servs., Inc. v. Babe's Plumbing, Inc. , 111 So.3d 955, 959 (Fla. 2d DCA 2013) (stating that section 725.06 would only bar indemnification claims based on indemnitee's own negligence); Linpro Fla. Inc. v. Almandinger , 603 So.2d 666, 667 n.1 (Fla. 1st DCA 1992) (notwithstanding void portion of indemnity clause for failure to comply with section 725.06, clause is otherwise enforceable to extent of indemnitor's own negligence); see also Mid-Continent Cas. Co. v. Constr. Servs. & Consultants, Inc. , No. 06-cv-80922, 2008 WL 896221, at *4 (S.D. Fla. Mar. 31, 2008) (concluding that section 725.06 only voided portion of contractual indemnity provision that attempted to impose duty to indemnify indemnitee for its own acts or omissions, but did not void entire indemnity provision).

As for the common law indemnity claims, the lower court concluded that common law indemnity was unavailable here because of the lack of a "special relationship" between Appellant and Appellees. We disagree. See CC-Aventura, Inc. v. Weitz Co. , No. 06-21598-CIV, 2009 WL 2136527, at *2 (S.D. Fla. July 13, 2009) (concluding that requisite special relationship exists between general contractor and subcontractor, and common law indemnity available to general contractor when general contractor sued for defects in construction attributable to work of subcontractor). Appellees' reliance on Paul N. Howard Co. v. Affholder, Inc. , 701 So.2d 402 (Fla. 5th DCA 1997), is misplaced. On this point, we agree with the analysis of our sister court in Diplomat Properties Limited Partnership v. Tecnoglass , 114 So.3d 357, 362 (Fla. 4th DCA 2013) (distinguishing Affholder because subcontractor's sole negligence in that case would have been complete defense to general contractor in personal injury action filed by third party).

We affirm the summary judgments granted on all other claims, in part based on some of the reasoning of the lower court and, in part, based on our conclusion that any distinct claims for damages alleged by Appellant here (as distinguished from the owner/ association) are subsumed in its claims for indemnity. See Home Depot U.S.A. Co. v. Taylor , 676 So.2d 479, 480 (Fla. 5th DCA 1996) (explaining "tipsy coachman" rule).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORPY and LAMBERT, JJ., and TRAVER, D.E., Associate Judge, concur.


author: GROSSHANS, J. HARRIS, J., dissenting.

text:
    David SMITH, II, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1228
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018 Rehearing Denied January 16, 2019
    Paula C. Coffman, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   GROSSHANS, J.

After trial, David Smith, II was convicted of first-degree murder. On appeal, Smith argues that the trial court erred by admitting a recorded telephone conversation in violation of the Florida wiretap statute. See Ch. 934, Fla. Stat. (2016). We conclude that the evidence was improperly admitted, but it constituted harmless error beyond a reasonable doubt. As a result, we affirm the conviction and sentence.

I. BACKGROUND INFORMATION

The State charged Smith with the first-degree murder of a twenty-month-old child who was in his care on the afternoon that she died.

During trial, the State sought to introduce a recording of a phone conversation between Smith and the child's mother ("Mother") that occurred on the day of the child's death. Mother recorded this conversation using an app on her cell phone. Smith objected to the admission of the recording, arguing that Florida's wiretap statute prohibited its admission. Finding that Smith had no expectation of privacy, the trial court overruled Smith's objection, admitted the recording into evidence, and allowed the State to publish it to the jury.

Although Mother's statements could be understood, Smith's words on the recording were completely unintelligible. As reflected in the trial transcript, the conversation was as follows:

[Mother:] What you doing?
[Smith:] (Unintelligible.)
[Mother:] What?
[Smith:] (Unintelligible.)
[Mother:] Yes.
[Smith:] (Unintelligible.)
[Mother:] What?
[Smith:] (Unintelligible.)
[Mother:] Yeah. Pick her up.
[Smith:] (Unintelligible.)
[Mother:] Yo.
[Smith:] (Unintelligible.)
[Mother:] What is she doing?
[Smith:] (Unintelligible.)
[Mother:] She's still not waking up?
[Smith:] (Unintelligible.)
[Mother:] She's still not waking up?
[Smith:] (Unintelligible.)
[Mother:] Put her in a cold shower, then.
[Smith:] (Unintelligible.)
[Mother:] Yeah?
[Smith:] (Unintelligible.)
[Mother:] Okay. Well, call 911. I'm on my way.
[Smith:] (Unintelligible.)

The State later introduced into evidence, with no objection from Smith, a video recording of a police interview with him in which he stated the following:

[Detective:] You also know about her phone and the phone app; right?
[Smith:] Yeah.
[Detective:] It records every phone call?
[Smith:] Yeah.

After deliberations, the jury found Smith guilty of first-degree murder as charged.

II. Admissibility Under the Wiretap Statute

Whether the Florida wiretap statute applies to a particular recording involves a matter of law and, therefore, is subject to de novo review. See McDade v. State , 154 So.3d 292, 296-97 (Fla. 2014).

Section 934.03(1), Florida Statutes (2016), generally prohibits the intentional interception of oral communications, which is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." Id. § 934.02(2). When a protected oral communication has been intercepted, without consent and in violation of the wiretap statute, no part of the interception may be received into evidence in any court proceeding, including a criminal trial. See id. § 934.06.

Here, Mother recorded her conversation with Smith. The record does not demonstrate that Smith gave Mother permission to record the conversation or that he had reason to know that she would record the call. Accordingly, Mother recorded the conversation in violation of the Florida wiretap statute. Thus, we hold that the trial court erred in admitting this recording.

The State's argument to the contrary does not persuade us. On appeal, the State contends that Smith admitted in the police interview that he knew Mother recorded phone conversations, and therefore, had implicitly consented to the recording. However, the dialogue relied on by the State does not indicate when Smith learned of Mother's practice to record all cell phone conversations. Moreover, no other evidence eliminates the ambiguity. Thus, the record does not support the State's argument.

III. Harmless Error Analysis

We next consider whether admission of the recording was harmless error. See State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986). As the Florida Supreme Court explained, the harmless error test "places the burden on the [S]tate, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict." Id. Application of this test "requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict." Id. Based on our examination of the entire record, we conclude that the admission of the recording constituted harmless error.

A. Impermissible Evidence

The recording was used primarily by the State to corroborate Mother's extensive testimony regarding the content of the conversation. No intelligible statements of Smith were discernible in the recording, only the sound of his voice. Nor, during the recording, did Mother accuse Smith of any wrongdoing. In fact, the recording actually supported Smith's theory of innocence. The defense attorney used this recording both in cross examination and in his closing argument to accuse Mother of being the perpetrator of the crime and support Smith's theory of defense.

B. Permissible Evidence

The forensic evidence in this case was extensive and compelling. Three different medical professionals testified as to the child's injuries, which included a blow to the left side of her head that could have, on its own, been lethal; tremendous blunt force impact to her torso that lacerated her liver and injured other organs; and recent injuries to her genital area. The medical professionals also testified that none of the injuries were consistent with a minor accident or fall and all of the injuries were acute at the time of her death, including a large visible hematoma on the side of the child's head. The jury was provided with numerous autopsy photos depicting fresh bleeding across the brain, a torn liver, and broken ribs. A medical expert testified to the seriousness of these injuries and the immediate impact they would have had on the child's ability to function normally, sit upright, ride in a car, maintain consciousness, or be carried without exhibiting extreme pain.

Three lay witnesses testified that they did not notice anything abnormal about the child at the time Mother left for work, including two of Smith's relatives who observed the child after Mother's departure. They testified that the child was sitting upright in the back seat of the vehicle, her eyes were open, she seemed responsive, and she did not exhibit any signs of pain or discomfort. One of the witnesses saw Smith carry the child over his shoulder into the motel room where he was living. Surveillance video was also admitted that showed the conscious child walking to the car and later entering the motel room alone with Smith. Prior to the admission of the recording, Mother testified about the content of the phone conversation she had with Smith, noting that he sounded hysterical and indicated that he could not wake the child.

The jury also heard from numerous other witnesses, including emergency personnel and law enforcement who testified that when they arrived on the scene the child was already cold and stiff, the room smelled strongly of chlorine, and the bedsheets had been removed. The child's blood was found on items in the motel room, but no blood was found in the vehicle in which the child was a passenger earlier that afternoon. The only explanation that Smith initially gave to detectives for the child's injuries was that he put the child in the shower and left momentarily, only to return and find her unconscious. He also testified that she had accidentally been hit by a door the day before.

For the reasons given above, we conclude that there is no reasonable possibility that the admission of the recording contributed to the jury's verdict and, therefore, its admission constituted a harmless error. Accordingly, we affirm the conviction and sentence in this matter.

AFFIRMED.

COHEN, C.J. concurs and concurs specially.

HARRIS, J., dissents with opinion.

COHEN, C.J., concurring, and concurring specially.

I agree with Judges Grosshans and Harris that the trial court erred in admitting the phone call. When the State attempted to admit the recorded phone call into evidence, Smith objected based on section 934.06, Florida Statutes (2016). The State's argument for admission of the recording was as follows:

STATE: [I]t's a balancing test whether or not there's a reasonable expectation of privacy. There's not a blanket black-or-white switch. And he's making these statements in front of another person. You can hear, when he puts the baby up to the phone, her breathing. So I would argue that he had -has waived any reasonable expectation of privacy because he's making these statements in front of another person.
COURT: The other person being the 20-month-old infant?
STATE: Who's verbal and can talk.

Contrary to the State's assertion, Smith did have a reasonable expectation of privacy in the cell phone conversation. Cf. Hentz v. State, 62 So.3d 1184, 1191 (Fla. 4th DCA 2011) (finding that defendant had a reasonable expectation of privacy in the cell phone call he received while he was in his home; accordingly, a recording of defendant's conversation violated chapter 934). The argument that a phone call made in the presence of a toddler, and in this case, a toddler who was unresponsive, is unpersuasive and should have been rejected by the trial court.

My divergence from Judge Harris's dissent is in his conclusion that the State failed to meet its burden of harmless error. Judge Harris has properly set out the required analysis. However, I cannot agree that the admission of an inaudible tape impacted the jury's verdict. That the mother was initially a suspect and was arrested does not change my view. We do not know whether she was charged as a principal, nor whether the forensic exams had been completed. We do know that she was never charged with any crime related to the death of her child. I agree with Judge Grosshans that the physical and forensic evidence established not only that Smith was responsible for the child's injuries, but also that the mother was not.

I am troubled by the State's introduction of a detective's questioning of Smith as set out in Judge Harris's dissent. The State first argued that the tape was inaudible and then presented the detective's testimony relating substantive statements allegedly made by Smith during the phone call. However, that testimony came into evidence without objection, and any error does not rise to a fundamental level. E.g., Johnson v. State, 256 So.3d 208, 2018 WL 2370469 (Fla. 5th DCA May 25, 2018) (finding unobjected-to testimony did not constitute fundamental error).

HARRIS, J., dissenting.

While I agree with the majority that the trial court erred in admitting the recorded telephone call between the Mother and Smith, I cannot agree that the error was harmless beyond a reasonable doubt. I dissent.

Our supreme court has held that the exclusionary rule in section 934.06, Florida Statutes (2016), is statutorily mandated. State v. Garcia, 547 So.2d 628, 630 (Fla. 1989) ("Chapter 934 ... unequivocally expresses the Legislature's desire to suppress evidence obtained in violation of that chapter."). Because it is a statutory mandate, the Court held that exceptions such as good faith do not apply to permit the introduction of illegally intercepted communications. The prohibition of the statute is absolute. See Atkins v. State, 930 So.2d 678, 682 (Fla. 4th DCA 2006).

The admission of the illegally recorded call in this case was clearly error. Even though the recording itself was innocuous, containing, as the majority points out, no discernible intelligible statements made by Smith, the harm comes not from the contents of the recording but rather from what admission of the recording allowed the State to do. For example, the State played for the jury a recorded interview between Smith and the lead homicide detective in the case. In this recording, the detective told Smith that he too listened to the recorded conversation, and even though Smith still did not recall or could not make out what he said, the detective said, "I'll tell you what you said." The detective then told Smith about statements that the detective believes Smith made in that unintelligible conversation, which were consistent with those that the Mother attributed to Smith.

Under these facts, there is undoubtedly a risk that a jury could conclude that a seasoned homicide detective is better trained and experienced than they are to discern statements made in an otherwise unintelligible recording and that a jury might very well defer to the detective's interpretation. This alone creates a reasonable possibility that the error contributed to the conviction. Contrary to the concurring opinion, a finding that the recording impacted the jury's verdict is not required-only that there is a possibility that it could have.

The inherent harm in allowing the detective to use the recording to corroborate the Mother's version of events was noted by our supreme court when it took the "opportunity to caution trial courts to guard against allowing the jury to hear prior consistent statements which are not properly admissible. Particular care must be taken to avoid such testimony by law enforcement officers." Rodriguez v. State, 609 So.2d 493, 500 (Fla. 1992). "When a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible, is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave. Under the circumstances, the error in admitting [the evidence] cannot be considered harmless." Perez v. State, 371 So.2d 714, 717 (Fla. 2d DCA 1979).

Because it was error to admit the recorded conversation, it then became incumbent upon the State, as the beneficiary of that error, to prove "that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Under this analysis, it is not the role of the appellate court to determine whether the evidence of guilt is sufficient or even overwhelming based on the properly admitted evidence. Id. at 1136. The "harmless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence." Id. That is precisely the analysis undertaken and relied upon in the majority opinion. Therefore, I disagree with the majority's conclusion that admission of the illegally obtained recording was harmless in light of the "extensive and compelling" evidence of guilt.

Properly applied, the harmless error test does not focus on the strength of the State's case, but on the effect of the error on the jury. See Johnson v. State, 53 So.3d 1003, 1007 (Fla. 2010).

So even in instances where the State has produced overwhelming evidence of guilt, and we do not think we would characterize the permissible evidence considered by the jury in the instant case as overwhelming, the State may still fail to meet its burden if we determine that there was a reasonable possibility that the error affected the verdict. Johnson ; Ventura v. State, 29 So.3d 1086, 1089 (Fla. 2010) (holding that the lower court applied the wrong harmless error analysis when it concluded that the detective's comments on defendant's silence were "harmless beyond a reasonable doubt given the overwhelming evidence of guilt" (citation omitted) ); DiGuilio, 491 So.2d at 1139 (cautioning that the harmless error test is not "an overwhelming evidence test"); see also Cooper v. State, 43 So.3d 42, 43 (Fla. 2010) (explaining that the harmless error test "is not a strong evidence test. Rather, the test is 'whether there is a reasonable possibility that the error affected the verdict.' " (quoting DiGuilio, 491 So.2d at 1139 ) ).

Horne v. State, 127 So.3d 898, 905 (Fla. 5th DCA 2013). A review of the entire record in this case shows that, in addition to the evidence which incriminated Smith, there was also evidence that the Mother could have been the one who committed the crime. In fact, there was enough evidence implicating the Mother that the homicide detective in this case initially obtained and served an arrest warrant on the Mother, charging her with the death of the child. A critical component of Smith's defense was that the Mother must have been the one to inflict the fatal injuries on her child; thus, the respective credibility of the Mother and Smith was at the heart of this case.

By allowing the admission of this illegally recorded telephone conversation-a conversation where not one intelligible comment was attributed to Smith-the trial court in essence allowed the Mother to tell the jury her version of what Smith said. At one point, the State even asked her if, even though Smith's statements were unintelligible, "did he say the things [on that recording] that you told us he said?" The Mother answered in the affirmative. The one-sided conversation, consistent with the Mother's trial testimony, was admitted and played to corroborate her version of events. A witness's prior consistent statement may not be used to bolster her trial testimony, Lamb v. State, 357 So.2d 437, 438 (Fla. 2d DCA 1978), because it puts a "cloak of credibility" on the witness's testimony. Brown v. State, 344 So.2d 641, 643 (Fla. 2d DCA 1977). Further, while the Mother could have testified similarly had the recording been excluded, the playing of the recording and repeated references to it throughout the trial created a reasonable doubt that the jury's verdict could have been affected by the impermissible evidence.

Perhaps the error in admitting the recorded conversation could have been harmless had the State merely made a passing reference to the recording. To the contrary, however, the recording came up in the State's opening, extensively during the direct examination of both the Mother and the detective, and repeatedly in the State's closing. At one point, the State even argued about all the other things Smith could have said in the recorded call but chose not to. This allowed the jury to hear not only conflicting and one-side accounts of what Smith allegedly said, but also comments about what he could have said, all from a completely unintelligible conversation between Smith and the only other person ever considered to be a suspect, someone who clearly had motive to point blame at Smith.

Admitting this recording opened the door for the State's witnesses and the prosecutor to tell the jury what they believe Smith said (or did not say) in the conversation. It was a focal point of the State's case throughout the trial and was used repeatedly to improperly corroborate the Mother's version of events. As credibility was unquestionably an issue in this case, I can find no circumstance where the admission of the illegally obtained recording could be considered harmless. I would reverse.

      Smith also challenges the denial of his request for a special circumstantial evidence instruction. We conclude that the trial court did not abuse its discretion in declining to give the requested instruction. See Jackson v. State , 25 So.3d 518, 531 (Fla. 2009).

      At trial, the State did not argue that Smith consented to the recording of the phone call because he knew the mother's cellphone recorded all phone calls. Had the State raised this argument below, perhaps the record would have been clearer as to when Smith became aware of the app on the mother's phone which was capable of recording conversations, albeit illegally. I agree that the record does not establish either that Smith was aware of the app at the time of the phone call at issue or that he was aware that the app was being utilized to record the pertinent phone call.


author: Roberts, J.

text:
    Lisa RAWSON, Appellant, v. GULF COAST PROPERTY MANAGEMENT CO., INC., Appellee.
    No. 1D17-3945
    District Court of Appeal of Florida, First District.
    December 14, 2018
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.
    Michael D. Tidwell and Benjamin L. Alexander of Michael D. Tidwell, P.A., Pensacola, for Appellee.
   Roberts, J.

Lisa Rawson challenges the trial court's denial of her motion for attorney's fees and costs filed pursuant to section 57.105, Florida Statutes. Because there was no legal basis for the underlying action, we reverse the trial court's denial of the motion.

Gulf Coast Property Management Company, Inc., managed rental property that was jointly owned by Lisa and Greg Rawson. When the Rawsons dissolved their marriage, the trial court entered a final judgment awarding the rental property to Ms. Rawson. Both Mr. and Ms. Rawson made a demand on Gulf Coast for the rent proceeds after the entry of the final judgment of dissolution. Instead of relying on the final judgment to deny Mr. Rawson's demand for rental proceeds, Gulf Coast filed an interpleader action, seeking a declaration from the trial court as to who was entitled to the rent proceeds.

Ms. Rawson, along with moving for summary judgment, sought the imposition of sanctions against Gulf Coast pursuant to section 57.105, arguing that the interpleader action was without legal or factual basis as the final judgment of dissolution had previously determined that she owned the rental property. The trial court granted Ms. Rawson's motion for summary judgment on the interpleader action and ordered Gulf Coast to remit all rent proceeds to her. However, the court denied the motion for sanctions, finding that Gulf Coast did not act in bad faith when it filed the complaint for interpleader. Ms. Rawson now appeals the denial of her request for sanctions.

A trial court's ruling on a motion for attorney's fees and costs pursuant to section 57.105, Florida Statutes, is reviewed for an abuse of discretion. Gahn v. Holiday Prop. Bond, Ltd. , 826 So.2d 423, 425-26 (Fla. 2d DCA 2002). To the extent that the trial court's decision is based on an interpretation of the law, the order is reviewed de novo . Moore v. Estate of Albee by Benzenhafer , 239 So.3d 192, 194 (Fla. 5th DCA 2018).

Section 57.105, Florida Statutes (2016), provides:

Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

(Emphasis added.) Under these facts, Gulf Coast or its attorney knew or should have known that there was no legal basis for an interpleader action because the final order of dissolution, which had not been stayed pending appeal, awarded the rental property to Ms. Rawson. See Rainess v. Estate of Machida , 81 So.3d 504, 511 (Fla. 3d DCA 2012) ("[A] stakeholder may not interplead based on an unreasonable fear of a merely hypothetical claim that lacks merit grounded in law or in fact."). Gulf Coast should have disbursed the rent proceeds to Ms. Rawson rather than seeking a second adjudication of this issue. Further, Gulf Coast's actions do not fall under any of the good faith exceptions listed in the statute. See § 57.105(3)(a)-(d), Fla. Stat. (2016).

We, therefore, REVERSE the order denying sanctions and REMAND for the trial court to assess a reasonable fee.

KELSEY and M.K. Thomas, JJ., concur.


author: M.K. Thomas, J.

text:
    Kerry WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-809
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Michael Ufferman of the Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   M.K. Thomas, J.

Appellant, Kerry Wilson, appeals his judgment and sentence for burglary of a dwelling with person assaulted and armed robbery with a firearm, claiming in part the trial court abused its discretion by allowing an expert witness to testify at trial for the State. We agree, reverse, and remand for a new trial.

Prior to trial, Appellant filed a Notice of Intent to rely on alibi evidence. At trial, Appellant called two witnesses who testified he was with them at a different location when the subject robbery was committed. In response, the State announced it would be calling an expert as a rebuttal witness. Appellant timely objected and argued the expert testimony was barred as the State failed to disclose the witness as an expert. The State argued that Appellant's counsel knew of the expert, had deposed the expert before trial, and was in possession of the phone records to be referenced by the expert. Appellant's counsel clarified the witness had been previously deposed, but solely on the use of cell phone records to locate Appellant for his arrest and not for the purpose of determining his location when the robbery occurred. Ultimately, the trial court overruled Appellant's objection finding no discovery violation as "he was noted as a potential witness, this is in rebuttal, and a rebuttal witness would not even have to be disclosed...." Furthermore, the trial court found because the witness was known to the State before trial, there was no "surprise." Alternatively, Appellant requested a brief continuance to allow him to re-depose the witness to address the additional investigation efforts he performed after his deposition and at the request of the State. Appellant further advised that had he known the State was calling an expert to contradict his alibi, he would have called his expert to provide testimony that the phone records were unreliable. The trial court denied the continuance.

At trial, the witness was called by the State as a phone records expert. He testified Appellant's cell phone data did not corroborate his alibi evidence, but was consistent with Appellant being at the location of the robbery at the time the robbery occurred. Over objection by Appellant, the cell phone records were introduced during his testimony.

The jury found Appellant guilty as charged on both counts. He was sentenced to life imprisonment as a prison releasee reoffender. Appellant filed a motion for new trial based on three grounds: (1) the trial court erred in failing to disclose the witness as an expert witness; (2) even if the trial court's inquiry concerning the alleged discovery violation constituted a Richardson hearing, it was inadequate; and (3) the trial court erred in refusing to grant Appellant a brief continuance providing him an opportunity to depose the witness in his newly labeled expert capacity. At the motion hearing, Appellant's counsel advised he had incorrectly stated at trial that the State had disclosed the witness, but failed to identify him as a phone expert. Instead, a complete review of the file confirmed the State had never formally disclosed the witness in any context. The witness was verbally discussed by counsel at some point before the trial, but was never included on a witness list supplied to Appellant. The State confirmed the witness was never included on any witness list, but that his identity had been verbally disclosed to Appellant's counsel before trial. The trial court denied the motion for new trial. This appeal followed.

The State concedes the expert was not disclosed during discovery, which is a violation of Florida Rule of Criminal Procedure 3.200. Rule 3.200 instructs:

Not more than 5 days after receipt of defendant's witness list, or any other time as the court may direct, the prosecuting attorney shall file and serve on the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the state proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause. Both the defendant and the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses who come to the attention of either party subsequent to filing their respective witness lists as provided in this rule.

Further, Florida Rule of Criminal Procedure 3.220(b)(1)(i) requires the State to disclose both "alibi witnesses and rebuttal alibi witnesses" as well as "expert witnesses who have not provided a written report and curriculum vitae or who are going to testify." The fact that the expert was a rebuttal witness does not alter the State's obligation to disclose him as a witness to the defense. Sharif v. State , 589 So.2d 960, 960 (Fla. 2d DCA 1991) ("The identity of rebuttal witnesses is not excepted from the state's discovery obligation prescribed in Florida Rule of Criminal Procedure 3.220(b).").

Here, the trial court incorrectly concluded that "a rebuttal witness would not even have to be disclosed." As explained in Sharif , there is no rebuttal witness exception to the witness disclosure requirements. 589 So.2d at 960. The State counters that because Appellant knew of the witness and the subject matter of his testimony, he was not prejudiced by the discovery violation. However, prior to trial, the expert's deposition was taken regarding his assistance in locating Appellant after the crime occurred so that he could be arrested on an outstanding warrant. At the time of his deposition, the expert had not analyzed the cell phone data to determine Appellant's location during the commission of the crime. It was only after the expert's deposition that further investigation was requested by the State and performed by the expert. Although Appellant may have been aware the witness was qualified to complete such an analysis, he was never put on notice that such an analysis had been undertaken or that the expert would offer testimony at trial refuting his alibi defense.

As a discovery violation occurred, the trial court was required to conduct a Richardson hearing. Appellant argues the trial court did not conduct an adequate Richardson hearing. "[W]hen a discovery violation is alleged, the standard of appellate review is whether the trial court abused its discretion in determining if a violation occurred and if so, whether it was inadvertent, and not prejudicial to the preparation of the defense." Kipp v. State , 128 So.3d 879, 881 (Fla. 4th DCA 2013) (citation omitted). In the event a proper hearing was not conducted, the harmless error analysis applies. C.D.B. v. State , 662 So.2d 738, 741 (Fla. 1st DCA 1995) (citing State v Schopp , 653 So.2d 1016 (Fla. 1995) ). The harmless error test places "the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, or alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986).

Where the State commits a discovery violation, the standard for deeming the violation harmless is extraordinary high. A defendant is presumed to be procedurally prejudiced if there is a reasonable [probability] that the defendant's trial preparation or strategy would have been materially different had the violation not occurred.

Debord v. State , 152 So.3d 788, 789 (Fla. 1st DCA 2014) (internal quotations and citations omitted).

In the instant case, there exists a reasonable probability Appellant would have altered his trial preparation or strategy had the State disclosed its intent to utilize expert testimony in rebuttal prior to the defense resting its case. In fact, Appellant had previously retained an expert who concluded the cell phone records were inconclusive, which would have contradicted the testimony of the State's expert. Appellant chose not to call this witness based, at least in part, on his belief the State would not be calling an expert witness in rebuttal. Allowing the State to proceed with presenting expert testimony amounted to trial by ambush. Based on the foregoing, we cannot conclude beyond a reasonable doubt that Appellant was not procedurally prejudiced by the State's discovery violation. See Debord , 152 So.3d 788.

As the State has failed to meet its burden of showing the discovery error was harmless, we must reverse and remand for a new trial. Id. at 789.

REVERSED and REMANDED for a new trial.

Wolf and Makar, JJ., concur.

      Richardson v. State , 246 So.2d 771 (Fla. 1971).


author: SCALES, J.

text:
    The LOCAL DOOR COUPONS FRANCHISE, INC., Appellant, v. Eric MAYERS, Appellee.
    No. 3D18-2145
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018
    Genovese Joblove & Battista, P.A., and W. Barry Blum, Miami, and Elizabeth G. McIntosh, for appellant.
    Zarco Einhorn Salkowski & Brito, P.A., and Colby G. Conforti and Robert M. Einhorn, Miami, for appellee.
    Before SALTER, SCALES and LUCK, JJ.
    ON MOTION TO DISMISS APPEAL
   SCALES, J.

The Local Door Coupons Franchise, Inc. ("Corporation"), plaintiff below, seeks review of a non-final order of the trial court requiring Corporation to advance to defendant Eric Mayers legal fees and costs associated with the ongoing litigation in the lower proceeding. Mayers filed a motion to dismiss Corporation's appeal, asserting this Court lacks jurisdiction to review the trial court's non-final order. Because the trial court's order has not affixed a dollar amount to be paid by Corporation, we lack jurisdiction to adjudicate the subject non-final order, and dismiss the instant appeal as premature.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

Mayers is a shareholder of Corporation. In March 2018, Corporation sued Mayers, alleging that Mayers was improperly representing himself as Corporation's chief executive officer, and interfering with Corporation's franchisees. Mayers answered Corporation's complaint and, both individually and derivatively on behalf of Corporation, asserted counterclaims against Corporation and third-party claims against Corporation's former attorney and law firm, and several of Corporation's shareholders and officers.

Mayers then, pursuant to section 607.0850(9) of the Florida Statutes and the indemnification provision contained in Corporation's shareholder agreement, filed a verified motion seeking an order requiring Corporation to "pay all of Mayers' fees and costs incurred thus far and in the future in the action." After conducting a non-evidentiary hearing, the trial court determined that the language of the subject indemnification provision required Corporation to advance fees and costs to Mayers for both (i) defense of Corporation's first-party action against Mayers, and (ii) prosecution of Mayers's counterclaims and third-party claims. The trial court's order, however, does not determine the amount of any fees and costs to which Mayers is entitled; in fact, the order specifically states that "[t]he amounts of fees and expenses subject to advancement will be determined in a subsequent hearing."

Corporation now appeals this non-final order. Asserting that we lack jurisdiction to review the subject order, Mayers has filed the instant motion to dismiss the appeal.

II. ANALYSIS

This Court has appellate jurisdiction to review only those non-final trial court orders scheduled in Florida Rule of Appellate Procedure 9.130(a)(3). See Jenne v. Maranto, 825 So.2d 409, 413 (Fla. 4th DCA 2002) ("The enumerated categories of permissible nonfinal review stated in rule 9.130 must be limited to their plain meaning. The rule does not authorize judges to enlarge its provisions to permit review of nonfinal orders not specified within its provisions.") (citation omitted). In opposition to Mayers's motion to dismiss, Corporation asserts that the subject order determines "the right to immediate possession of property" and, thus, that we have jurisdiction pursuant to rule 9.130(a)(3)(C)(ii).

We have routinely concluded, in other contexts, that orders determining mere entitlement to attorney's fees, without affixing an amount, are non-reviewable, nonfinal orders. See Perlberg v. Lubercy Asia Holdings, LLC, 247 So.3d 627, 628 (Fla. 3d DCA 2018) ; Tower Hill Prime Ins. Co. v. Torralbas, 176 So.3d 374, 374 (Fla. 3d DCA 2015) ; Kling Corp. v. Hola Networks Corp., 127 So.3d 833, 833 (Fla. 3d DCA 2013) ; Reid v. Estate of Sonder, 63 So.3d 7, 11 (Fla. 3d DCA 2011) ; Mem'l Sloan-Kettering Cancer Ctr., v. Levy, 681 So.2d 842, 842 (Fla. 3d DCA 1996). From our jurisdictional perspective, we view the instant order - determining only a shareholder's right to advancement of litigation expenses under an indemnification provision contained in a shareholder's agreement and as provided by section 607.0850 - as being substantially similar to those orders that merely entitle a party to attorney's fees, without setting an amount. Specifically, we conclude that the instant order does not determine Mayers's "right to immediate possession of property." See Fla. R. App. P. 9.130(a)(3)(C)(ii).

In so holding, we distinguish the instant interlocutory order - granting entitlement to advancement - from an interlocutory order denying such entitlement.

An interlocutory order that outright denies a party's claim for advancement of litigation expenses under an indemnification provision contained in a shareholder's agreement most assuredly determines a party's right to immediate possession of property: it determines that the party has no such right. Ergo, review of an order denying entitlement to advancement is warranted under rule 9.130(a)(3)(C)(ii).

Whereas, an order granting entitlement to advancement under an indemnification clause, without affixing an amount of such entitlement , lacks two essential elements required under the rule. Such an order neither defines specifically the property to which a party is entitled, nor grants immediate possession of it. Put another way, requiring Corporation to indemnify its shareholder (Mayers) for fees and costs Mayers has already incurred and will incur during the pendency of the lower proceedings, without setting an amount, does not determine Mayers's right to immediate possession of property in this case, as is required to invoke this Court's jurisdiction under rule 9.130(a)(3)(C)(ii).

Our conclusion is buttressed not only by rule 9.130(a)(3)(C)(ii)'s plain language, but also by the philosophy limiting piecemeal appeals. See BE & K, Inc. v. Seminole Kraft Corp., 583 So.2d 361, 364 (Fla. 1st DCA 1991) ("[T]he purpose of rule 9.130 is to limit review of non-final orders to prevent the waste of judicial resources, a consideration that becomes even more compelling as the case filings in the appellate courts of this state continue to increase at an incredible rate. Piecemeal review of non-final orders prior to final disposition of all issues must be strictly limited as much as possible to conserve the sparse judicial resources available at the appellate level. This is especially true of non-final orders awarding conditional affirmative relief that may never result in a final judgment against the defendant."). It would be nonsensical for this Court to review an interlocutory order that merely grants entitlement, and then force the parties to engage in separate appellate proceedings if the amount of the award is also challenged. Case in point, allowing appellate review of the instant order would necessitate a separate interlocutory appeal if the amount of the advancement were challenged.

III. CONCLUSION

We lack jurisdiction to review the subject non-final order. Because the subject order determines merely that Mayers is entitled to advancement of attorney's fees and costs under the indemnification clause in Corporation's shareholder agreement, but fixes no amount of such entitlement, Corporation's appeal of the order is premature.

Appeal dismissed.

      This statute provides a mechanism and procedure for a corporate agent to obtain indemnification from a corporation under specified circumstances.

      This provision of the rule reads, in its entirety:
      (3) Appeals to the district courts of appeal of non-final orders are limited to those that
      ....
      (C) determine
      ....
      (ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment[.]
      Fla. R. Civ. P. 9.130(a)(3)(C)(ii).

      Indeed, in this Court's recent case of MVW Management, LLC v. Regalia Beach Developers LLC, 230 So.3d 108, 109 (Fla. 3d DCA 2017), we concluded, without elaboration, that rule 9.130(a)(3)(C)(ii) provides the jurisdictional basis for interlocutory review of an order denying entitlement to advancement under an indemnification clause contained in an operating agreement.


author: LaROSE, Chief Judge.

text:
    Timothy TURNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3474
    District Court of Appeal of Florida, Second District.
    Opinion filed December 19, 2018
    Anthony W. Surber of Surber Law P.A., Mulberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katie Salemi Ashby, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

"The young man knows the rules, but the old man knows the exceptions." Oliver Wendell Holmes, Sr., Valedictory Address, Delivered to the Graduating Class of the Bellevue Hospital College, March 2, 1871 , 13 N.Y. Med. J. 420, 426 (1871). Dr. Holmes' wisdom underscores the fact that, sometimes, bright-line rules do not burn so brightly. So it is for Timothy Turner.

The trial court sentenced Mr. Turner to life imprisonment after revoking his community control. On appeal, Mr. Turner argues that under the "bright line" rule of Norvil v. State, 191 So.3d 406, 410 (Fla. 2016), "a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense." He contends that the trial court did just that by hearing evidence about his pending new law violations that occurred during his arrest for violating community control.

Norvil's bright line rule is inapplicable here. We conclude that the trial court may consider the facts underlying the new law violations in assessing whether to revoke community control and to tailor an appropriate sentence upon revocation. Although we affirm, we remand for correction of a scrivener's error in the revocation order.

Background

A jury convicted Mr. Turner of second-degree murder; the trial court imposed a life sentence. Following a successful postconviction motion, Mr. Turner's conviction was vacated. Thereafter, he and the State negotiated a sentence of eighteen years' imprisonment, with credit for time already served, followed by two years of community control.

Eventually, Mr. Turner was released to community control. After roughly four months, the State filed a violation of community control affidavit alleging that Mr. Turner failed to submit to urinalysis, improperly changed his residence, and failed to remain confined to his residence. In an amended violation affidavit, the State alleged that Mr. Turner also committed several new law violations, all of which were discovered or precipitated by law enforcement's attempts to arrest him. More specifically, the amended violation affidavit stated that Mr. Turner violated his community control by being arrested for burglary with assault or battery, resisting officers without violence, and various drug-related offenses.

Mr. Turner admitted to each of the violations. The trial court scheduled another hearing where the State and Mr. Turner could call witnesses as to the issues of revocation and sentencing.

At that later hearing, several witnesses testified about the aggravated nature of the new law violations. Law enforcement officers detailed their efforts to execute the arrest warrant issued for the original violation affidavit. They testified that Mr. Turner tried to flee by pushing out a window screen from the back of his residence. He fled to a neighbor's house where he ran through a glass door. He ran into the neighbor's bedroom, knocked down the unwitting neighbor, tried to conceal himself, and ultimately jumped out of her bedroom window. Law enforcement apprehended Mr. Turner outside of the neighbor's house and discovered a sack of drugs and drug paraphernalia in his pocket.

A licensed psychologist testified for Mr. Turner. She diagnosed him with "Posttraumatic Stress Disorder, Bipolar Disorder, and also Panic Disorder. [She] also diagnosed him with ... Stimulant Use Disorder with respect to his use of amphetamine." The psychologist further described the physical, sexual, and emotional violence Mr. Turner suffered growing up. She stated that Mr. Turner "[ha]s a severe drug problem," and that at the time he committed the new law violations, "he related that he had been using methamphetamine daily."

At the conclusion of the testimony, the parties presented argument as to the proper disposition. Mr. Turner requested that the trial court modify his community control "to include a residential dual diagnosis treatment center." The State requested the revocation of Mr. Turner's community control and imposition of a life sentence. The trial court agreed with the State:

Based on everything I've reviewed that's been submitted to the court, the defendant's past history, everything I've heard today, my conclusion, Mr. Turner, is that you have problems but you're dangerous. People have been hurt. People continue to be hurt by your conduct. I just can't get past that.
Your entire history is replete with crimes of violence at various points in your history to a greater or lesser extent and for the protection of everyone I agree with the State's position in this matter. You were previously adjudicated. I find you in violation of your community control. I revoke your community control. You're sentenced to life in prison.

The trial court later entered a written revocation order.

Analysis

Mr. Turner maintains that the trial court erred in sentencing him based upon its consideration of the pending new law violations. He relies principally on Norvil, which "adopt[ed] the following bright line rule for sentencing purposes: a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense." Id.; see, e.g., Fernandez v. State, 212 So.3d 494, 495 (Fla. 2d DCA 2017) ("Based on the supreme court's decision last year in [ Norvil ], we are required to reverse his sentence because the trial court improperly considered Mr. Fernandez's arrest for an alleged offense committed while he was on pretrial release on the possession charge.").

In Norvil, the trial court considered an arrest subsequent to the primary offense in sentencing the defendant. 191 So.3d at 408. The Florida Supreme Court ruled that the Criminal Punishment Code (CPC) did not permit such consideration. Id. at 409. Holding that the trial court could not consider sentencing factors not authorized in the CPC, the court concluded that trial courts should consider only prior arrests and convictions, and not mere arrests subsequent to the charged crime. Id. ("[A]rrests and convictions considered by a trial judge in sentencing occur 'prior to the time of the primary offense,' and not subsequent to the primary offense." (quoting § 921.0021(5), Fla. Stat. (2010) ); see also § 921.231(1)(c), Fla. Stat. (1998) (providing that a presentence investigation report include "[t]he offender's prior record of arrests and convictions").

Even before Norvil, we held that a trial court may not consider for sentencing the details of pending charges that occurred after the primary offense. See Mosely v. State, 198 So.3d 58, 59-60 (Fla. 2d DCA 2015) (holding that incidents of misconduct occurring after the charged offense, some of which did not result in charges or arrests, were impermissible sentencing factors); Gray v. State, 964 So.2d 884, 885 (Fla. 2d DCA 2007) (reversing the defendant's sentence because the trial court improperly considered the details of pending charges); see also State v. Potts, 526 So.2d 63, 63 (Fla. 1988) ("The state through its criminal process may not penalize someone merely for the status of being under indictment or otherwise accused of a crime."). One of our sister districts has determined that, even in the absence of the submission of evidence of a pending charge, reversal of a defendant's sentence is required "when the court repeatedly emphasized the charged conduct during the sentencing hearing, indicated that it believed the conduct occurred, and appeared to rely on the conduct, in part, to justify the sentence." Brown v. State, 225 So.3d 947, 948 (Fla. 5th DCA 2017).

Mr. Turner contends that because he admitted to the violations, "there was no evidentiary hearing held to prove the new law violations by 'the greater weight of the evidence.' " See Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013) (observing that at a revocation hearing the State must "prove[ ] by the greater weight of the evidence that the probationer willfully and substantially violated probation"). He argues that he did not admit guilt as to any of the new pending charges; rather, he only admitted a new law violation as he was only arrested for those charges. At the time of sentencing, the new law violation charges were set for trial.

Ordinarily, when the trial court allegedly relies on improper sentencing considerations, the State must demonstrate that the trial court's sentencing decision was not so influenced. See N.D.W. v. State, 235 So.3d 1001, 1002 (Fla. 2d DCA 2017) ("The burden is on the State to show that the trial court did not rely on the improper factor in imposing the sentence where it appears that the trial court may have done so." (first citing Fernandez, 212 So.3d at 497 ; then citing Norvil, 191 So.3d at 409 ) ). We have reversed cases for resentencing where the sentence has been, "at least in part," influenced by improper sentencing considerations. See, e.g., Love v. State, 235 So.3d 1037, 1038 (Fla. 2d DCA 2018) (reversing for resentencing "because the State presented evidence of impermissible sentencing factors and [defendant's] sentence may have been based, at least in part, on those impermissible factors"); Nusspickel v. State, 966 So.2d 441, 444-45 (Fla. 2d DCA 2007) ("If portions of the record reflect that the trial court may have relied upon impermissible considerations in imposing sentence, the State bears the burden to show from the record as a whole that the trial court did not rely on such impermissible considerations.").

However, we need not put this case through the rigors of such an examination. To our way of thinking, a community control revocation proceeding is distinguishable from the scenario in Norvil, where, following the defendant's entry of an open guilty plea to armed burglary of a dwelling, he allegedly burglarized a vehicle. Id. 191 So.3d at 407. In imposing sentence on the armed burglary offense, the trial court improperly considered the vehicle burglary. Id. at 407-08. But, as Mr. Turner must recognize, Norvil and all of the other cases upon which he relies involved the trial court's improper sentencing considerations following a trial or a guilty plea on the main offense; they did not implicate a controlee's conduct during a term of "intensive, supervised custody." See § 948.001(2), Fla. Stat. (1998) (defining "community control" as "a form of intensive, supervised custody in the community, including surveillance on weekends and holidays"). "Despite the strict conditions imposed on the controlee, community control is not intended to be a punitive regime .... [C]ommunity control 'helps the subject to conform his or her conduct to society's requirements by discouraging behaviors that are likely to lead to new law violations or other violations of supervision.' " Filmore v. State, 133 So.3d 1188, 1194 (Fla. 2d DCA 2014) (quoting Correa v. State, 43 So.3d 738, 745 (Fla. 2d DCA 2010) ).

Community control is, indeed, "a harsh and more severe alternative to ordinary probation." State v. Mestas, 507 So.2d 587, 588 (Fla. 1987). Trial courts have broad discretion to grant or revoke the privilege of community control. See Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003). This discretion "is necessarily broad and extensive in order that the interests of society may be protected against a repeating offender or one who disregards the conditions stipulated for his ... remaining at large." Lawson v. State, 969 So.2d 222, 229 (Fla. 2007) (emphasis omitted) (quoting State ex rel. Roberts v. Cochran, 140 So.2d 597, 599 (Fla. 1962) ).

And yet, the power to revoke community control is not unrestrained; the trial court must afford due process. See id. at 229-30. "In addition to the factual determination of whether a violation of [community control] has occurred, a trial court's decision to revoke probation involves a discretionary determination of whether the violation justifies the revocation of [community control]." Amason v. State, 76 So.3d 374, 377 (Fla. 2d DCA 2011) (citing Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) ). "[T]he final revocation of probation must be preceded by a hearing" at which the controlee is afforded, among other entitlements, "an opportunity to be heard." Black, 471 U.S. at 611-12, 105 S.Ct. 2254 ; see, e.g., Johnpier v. State, 89 So.3d 996, 996 (Fla. 2d DCA 2012) (reversing probationer's sentence when "the trial court erred by refusing to hear any argument on sentencing"); Balsinger v. State, 974 So.2d 592, 593 (Fla. 2d DCA 2008) ("If the probationer does not admit to the violation and the charged violation is not dismissed, the court must give the probationer an opportunity to be fully heard."). This means that the controlee has the opportunity to demonstrate that he did not violate community control or, if he did, that circumstances do not warrant revocation. See Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ("The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation."); Amason, 76 So.3d at 377 ("A probationer must have an opportunity to present mitigating evidence and argue for sentencing alternatives when the court has sentencing discretion." (citing Black, 471 U.S. at 614, 105 S.Ct. 2254 ).

A trial court's decision to revoke community control is informed properly by a complete understanding of the controlee's behavior while serving community control. In our view, the arrest stemming from a new law violation is incidental to the conduct precipitating the arrest. Thus, the trial court's consideration of such conduct, in the context of a community control violation hearing, is proper. Our conclusion is buttressed by the unique considerations and procedures attendant to community control revocation hearings. See Savage, 120 So.3d at 621-23 (explaining that the trial court's decision and appellate court's standard of review of an order revoking probation involves two steps; first, "whether the finding of a willful and substantial violation is supported by competent substantial evidence"; and, second, whether the trial court's revocation decision constitutes an abuse of discretion).

I. Violation

Due process requires that the State prove an alleged community control violation at a hearing or that the defendant enter a knowing admission before the trial court revokes the community control. Balsinger, 974 So.2d at 593 ; see, e.g., Randall v. State, 741 So.2d 1183, 1184 (Fla. 2d DCA 1999) (reversing and remanding order revoking defendant's community control due to the constitutionally inadequate revocation hearing "with nothing in this record approaching a knowing waiver of hearing or a knowing admission to the alleged violations").

There is no dispute that Mr. Turner knowingly admitted to each of the violations alleged in the amended affidavit. Both parties agree that this admission constitutes competent substantial evidence that Mr. Turner willfully and substantially violated community control. The parties disagree, however, as to the constraints this admission had upon the trial court. As noted above, Mr. Turner asserts that his admission prohibited the trial court from receiving evidence as to facts underlying the violations. We disagree.

In fact, it would have been error for the trial court to hold such an abbreviated and truncated revocation hearing. "What is needed is an informal hearing structured to assure that the finding of a ... violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the [controlee]'s behavior." Peters v. State, 984 So.2d 1227, 1234 (Fla. 2008) (quoting Morrissey, 408 U.S. at 484, 92 S.Ct. 2593 ).

II. Revocation

After Mr. Turner admitted to violating community control, the trial court had to consider whether to revoke, modify, or continue community control. See § 948.06(1). This decision is, itself, a separate process from the violation stage of the hearing. See Savage, 120 So.3d at 621 ("Both the trial court's decision whether to revoke probation and our standard of review involve two steps."); Harrington v. State, 238 So.3d 294, 299 (Fla. 4th DCA 2018) ; Estevez v. State, 705 So.2d 972, 973 (Fla. 3d DCA 1998). The trial court's decision to revoke community control necessarily contemplates that the decision will be fully informed. After all, "[d]ue process envisions a law that hears before it condemns, proceeds upon inquiry, and renders judgment only after proper consideration of issues advanced by adversarial parties." Scull v. State, 569 So.2d 1251, 1252 (Fla. 1990).

The trial court's decision whether to revoke community control involves a discretionary determination as to whether the violation justifies revocation. See Russell v. State, 982 So.2d 642, 646 (Fla. 2008) ("In determining whether probation should be revoked, the trial court enjoys broad discretion."). As we stated more than fifty years ago, "the purpose [of a probation violation hearing] is to determine if good behavior has been tainted by bad conduct. It is true that the probation conditions are often broad and can easily be broken but it is only by grace that freedom is enjoyed in the first place." Bowen v. State, 229 So.2d 272, 274 (Fla. 2d DCA 1969) (quoting McNeely v. State, 186 So.2d 520, 524 (Fla. 2d DCA 1966) ). Consequently, the trial court must ask whether the controlee's behavior, while on community control, justifies revocation.

In this case, the trial court scheduled a second hearing where it would consider an appropriate course in light of Mr. Turner's admitted violations. The trial court afforded both parties the opportunity to present evidence and argument. The State introduced evidence of Mr. Turner's conduct. Mr. Turner presented mitigating evidence and argued for sentencing alternatives. See, e.g., Black, 471 U.S. at 614, 105 S.Ct. 2254 ("[W]here the factfinder has discretion to continue probation, the procedures required by Gagnon[ v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ] and Morrissey [, 408 U.S. at 471, 92 S.Ct. 2593] assure the probationer an opportunity to present mitigating evidence and to argue that alternatives to imprisonment are appropriate."); cf. Caldwell v. State, 72 So.3d 779, 779 (Fla. 2d DCA 2011) (reversing probation revocation order because "the trial court erred by failing to hear any argument on sentencing" (citing Estevez v. State, 705 So.2d 972, 972 (Fla. 3d DCA 1998), for the proposition that "a probationer must have an opportunity to be heard regarding what sentence should be imposed and to present mitigating evidence and argue for sentencing alternatives when the trial court has sentencing discretion"); U.S. v. Holland, 850 F.2d 1048, 1051 (5th Cir. 1988) ("Even a probationer who admits the allegations against him must be given an opportunity to 'explain away the accusation,' and to offer mitigating evidence suggesting that the violation doesn't warrant revocation." (citations omitted) (quoting Hahn v. Burke, 430 F.2d 100, 104 (7th Cir. 1970) ).

Despite the "intensive, supervised custody" to which Mr. Turner was subjected, he was unable to live at liberty without violating the law. The "[c]orollary to a defendant being placed on [community control] because it is more than likely that he will not repeat criminal conduct is the proposition that he is not entitled to remain at large if he persists in criminal tendencies ...." Bernhardt v. State, 288 So.2d 490, 495 (Fla. 1974).

The trial court properly concluded that, based upon Mr. Turner's conduct, revocation of community control was appropriate.

III. Sentencing

A trial court's consideration of improper factors in sentencing constitutes a denial of due process. Smith v. State, 62 So.3d 698, 700 (Fla. 2d DCA 2011) ("Because the trial court expressly considered these improper factors in sentencing, Smith was denied due process and the trial court committed fundamental error."). Mr. Turner correctly contends that "a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense." See Norvil, 191 So.3d at 407.

Be that as it may, sentencing and the attendant considerations at a revocation hearing are different. The Third District explained that "as in any adult sentencing hearing, it was improper for the [trial] judge to consider the details of the pending charges alleged to have occurred after the offenses for which Mirutil was to be sentenced." Mirutil v. State, 30 So.3d 588, 590 (Fla. 3d DCA 2010) (citing Gray v. State, 964 So.2d 884 (Fla. 2d DCA 2007) ). However, the district court carefully distinguished between sentencing following a criminal defendant's initial conviction, and sentencing related to revocation. It observed that "[t]he sentencing hearing was not tantamount to a probation violation hearing, where the [trial] court may consider the new crimes a defendant committed because he violated his probation by doing so." Id. at 590 (emphasis added). As recounted above, the trial court did not improperly rely on the pending charges resulting from Mr. Turner's subsequent arrest, but, rather, on his conduct that violated his community control. After all, "[w]hen a greater sentence is imposed upon the revocation of probation, it can be based upon the defendant's subsequent conduct demonstrating his lack of amenability to reform." Williams v. Wainwright, 650 F.2d 58, 61 (5th Cir. 1981).

Finally, the sentencing scheme established by the Florida Legislature supports our decision. "The provision of criminal penalties and of limitations upon the application of such penalties is a matter of predominantly substantive law and, as such, is a matter properly addressed by the Legislature." § 921.002(1); see also Woods v. State, 740 So.2d 20, 23 (Fla. 1st DCA 1999) ("In Florida, the plenary power to prescribe the punishment for criminal offenses lies with the legislature ....").

Under the sentencing law applicable when Mr. Turner committed the primary offense of murder, see Fla. R. Crim. P. 3.704(d)(30) ("Sentences imposed after revocation of ... community control must be imposed according to the sentencing law applicable at the time of the commission of the original offense."), the trial court had to use the sentencing scoresheet associated with the 1998 CPC when sentencing him for his violation of community control.

The 1998 version of section 921.0024(1)(b) directs that the assessment of "[c]ommunity sanction violation points [be] assessed when a community sanction violation is before the court for sentencing."See also § 921.0021(6)(b) (enumerating community control as a "community sanction"). Specifically, the statute provides for consideration of not only violations with felony convictions, but also those pending before the court:

Six (6) sentence points are assessed for each community sanction violation, and each successive community sanction violation; however, if the community sanction violation includes a new felony conviction before the sentencing court, twelve (12) community sanction violation points are assessed for such violation, and for each successive community sanction violation involving a new felony conviction.

§ 921.0024(1)(b). Consequently, a scoresheet prepared for sentencing upon revocation necessarily differs from the scoresheet prepared at Mr. Turner's original sentencing, as the revocation scoresheet was required to include community sanction violation points. See Sanders v. State, 35 So.3d 864, 869 (Fla. 2010) ("As a result of these community sanction violation points, the scoresheet prepared for a sentencing upon revocation of probation necessarily will differ from the scoresheet prepared for the original sentencing. Recalculation is not only permitted but required by section 921.0024."). Because the scoresheet's inclusion of Mr. Turner's community sanction points was mandated by statute, it was necessarily proper for the trial court to consider Mr. Turner's new law violations.

Scrivener's error

The revocation order incorrectly reflects that Mr. Turner violated all of the conditions in the original community control violation affidavit. The sentencing hearing transcript demonstrates that the trial court found Mr. Turner in violation of each of the allegations in the amended violation affidavit. Thus, remand is necessary for correction of the revocation order. See McNeil v. State, 908 So.2d 556, 557-58 (Fla. 2d DCA 2005) (remanding for correction of probation revocation order to conform to the trial court's oral pronouncement of the conditions violated).

Conclusion

For the reasons explained above, we affirm the revocation of Mr. Turner's community control and his resulting sentence. However, we remand for correction of the scrivener's error on the revocation order.

Affirmed; remanded for entry of a corrected order of revocation of community control.

KELLY and SALARIO, JJ., Concur.

      Mr. Turner did not object to the testimony about his new law violations. Nonetheless, we may consider his argument, de novo, on appeal. Norvil, 181 So.3d at 408 ; Love v. State, 235 So.3d 1037, 1039 (Fla. 2d DCA 2018) ("This court held that the type of error addressed in Norvil is fundamental error that may be considered on appeal despite a lack of objection below." (citing Fernandez, 212 So.3d at 496 ) ).


author: SALTER, J.

text:
    CITIMORTGAGE, INC., Appellant, v. Jorge PORTER, et al., Appellees.
    No. 3D17-2469
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018.
    Akerman and Nancy M. Wallace (Tallahassee) and William P. Heller (Fort Lauderdale) and Eric M. Levine (West Palm Beach), for appellant.
    The Ticktin Law Group and Kendrick Almaguer (Deerfield Beach); Krinzman Huss & Lubetsky and Cary A. Lubetsky and Lynette Ebeoglu McGuinness ; Pila Law Group and Tomas A. Pila, for appellees.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   SALTER, J.

CitiMortgage, Inc. ("CitiMortgage"), appeals a final summary judgment in favor of Sun West Mortgage Company, Inc. ("Sun West"), regarding the relative priority of the parties' respective mortgage liens. CitiMortgage's mortgage was recorded before Sun West's reverse mortgage, but a series of suspicious documents and occurrences called that priority into question. Concluding that Sun West "was a bona fide purchaser for value without notice of any alleged irregularities in the public record chain of title," and that CitiMortgage was "in the best position to correct the official records and is the least innocent," the trial court granted Sun West's motion for final summary judgment. For the reasons which follow, we reverse.

I. Facts; Proceedings in the Circuit Court

A. CitiMortgage

In 2005, appellee Jorge Porter ("Porter") executed a promissory note and first mortgage encumbering his residence. The mortgage was duly recorded, as were a later loan modification agreement and various assignments culminating in an assignment to CitiMortgage.

In 2010, CitiMortgage's attorneys at the time, David J. Stern, P.A., filed the circuit court foreclosure action involved in the present appeal, and a lis pendens. A year later, Stern withdrew as counsel and CitiMortgage's present counsel were substituted. But in 2011, two months after Stern's withdrawal, the Stern firm allegedly executed a "Notice of Voluntary Dismissal with Prejudice and Release of Lis Pendens." The notice did not appear on the electronic docket at that time, but the docket does reflect a voluntary dismissal on June 8, 2012, and the signed notice and release of lis pendens was recorded in the public records on the same date.

And in the interim, on February 6, 2012, a satisfaction of mortgage purportedly executed in October 2009 by one of the interim mortgagees of record (by assignment)-not by CitiMortgage-was recorded in the public records. The borrower and mortgagor, Porter, paid the recording fee for the satisfaction.

On June 26, 2012, CitiMortgage moved to "strike the notice of dismissal recorded on June 8, 2012 or ... vacate the notice of dismissal." CitiMortgage contended "the notice of dismissal was not authorized by [CitiMortgage] and should not have any prospective application ... [because] it is clear that the notice of dismissal was improperly recorded, it should be stricken, or in the alternative, vacated by this Court."

On July 10, 2012, the trial court entered an order granting CitiMortgage's motion, providing "[t]he notice of voluntary dismissal recorded on June 8, 2012, shall have no further force or effect." CitiMortgage did not record the trial court's order. CitiMortgage claims "[t]he original order disappeared from the court file-which is why it was never recorded and why the record on the appeal needed to be supplemented with a conformed copy."

B. Sun West; Amended Foreclosure Complaint

In May 2012, Porter's mother applied for a reverse mortgage loan on Porter's residence, which was actually still owned by Porter and the subject of an active foreclosure case. Porter conveyed the residence to his Mother on June 13, 2012. The reverse mortgage loan closed on August 21, 2012, six weeks after the trial court's order vacating the dismissal of CitiMortgage's foreclosure action. The reverse mortgage was recorded in September 2012, and an assignment of that mortgage to Sun West was recorded in November 2012.

In 2014, CitiMortgage amended its foreclosure complaint to add Sun West and the assignor of the mortgage to Sun West as defendants. Sun West's answer and affirmative defenses alleged: (1) Sun West was a bona fide lender for value without notice of CitiMortgage's mortgage lien as of the time the Sun West mortgage closed; (2) CitiMortgage's lien is barred as "between two innocent parties, the one who caused or allowed or could have avoided the loss, must bear responsibility for the loss"; and (3) CitiMortgage is estopped from bringing its claim of priority against Sun West.

Sun West moved for summary judgment, based on the recorded satisfaction of CitiMortgage's mortgage among the public records and on CitiMortgage's failure to record the trial court's order vacating the voluntary dismissal and discharging the lis pendens. CitiMortgage opposed the motion, filing an affidavit of a CitiMortgage officer attesting that CitiMortgage had never satisfied or released the Porter mortgage. CitiMortgage also filed an affidavit of the lead general counsel of Nationwide Title Clearing, Inc. ("NTC"), shown in the "Document Prepared By" entries on the recorded satisfaction of the Porter mortgage. NTC's affiant conducted an investigation of the alleged satisfaction of mortgage and concluded that the satisfaction was not in fact "prepared or sent for recording by NTC." The affiant observed that a postal ZIP Code for NTC's address contained an extra digit, a format "which does not exist and could not print out on any of NTC's forms."

CitiMortgage also submitted summary judgment evidence in the form of deposition excerpts from a representative of the Stern law firm, stating that the firm did not prepare the notice of voluntary dismissal. Finally, CitiMortgage filed the Miami-Dade Clerk of Court records department receipts indicating that Porter recorded the satisfaction of mortgage himself.

The trial court granted Sun West's motion for final summary judgment, concluding that as between the two parties, CitiMortgage was the "least innocent" and thus required to bear the loss. This appeal followed.

II. Analysis

We review an order granting a motion for summary judgment de novo. Volusia County. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). We consider the summary judgment evidence in the light most favorable to the non-moving party, indulging any reasonable inferences in favor of that party. Rocamonde v. Marshalls of Ma, Inc., 56 So.3d 863, 864 (Fla. 3d DCA 2011).

Sun West contends that the affidavit of the attorney who served as closing agent for the Sun West loan is dispositive. Her affidavit describes her title search and her review of a title commitment from a title insurer. She states that (a) the title insurer did not list the CitiMortgage mortgage on its June 18, 2012, commitment, and (b) no one told her, prior to or during the closing on August 21, 2012, that the satisfaction of the CitiMortgage lien or the dismissal with prejudice and release of the CitiMortgage lis pendens "were incorrect or had been improperly recorded."

Also in the record, however, were a number of suspicious entries and occurrences placing Sun West and its originator/underwriter, on notice of irregularities. First, the purported satisfaction of the CitiMortgage lien, dated October 30, 2009, was recorded February 6, 2012, and was not executed by an officer or agent of CitiMortgage. Between the date of the supposed execution (by Mortgage Electronic Registration Systems, Inc., or "MERS") of the satisfaction, and the recordation of the purported satisfaction over two years later, an assignment of the same note and mortgage was recorded. The assignment was dated August 18, 2010, recorded September 14, 2010, supposedly prepared by David J. Stern, Esq., and assigned the note and mortgage from MERS to CitiMortgage. The satisfaction of the mortgage in 2009 is inconsistent with the assignment of the note and mortgage nearly a year later.

Second, when the closing agent referred in her affidavit to "public records," she did not limit the term to "Official Records," used to refer only to a county clerk's register of recorded documents by "O.R. Book and Page." The electronic docket and documents annexed to the docket are also public records. Any review of the docket of the 2010 CitiMortgage foreclosure case would have shown another inconsistency-a motion by CitiMortgage to vacate the voluntary dismissal and release of lis pendens filed only 18 days after it was recorded, and an order on that motion (and thereby reinstating the lis pendens) docketed July 10, 2012.

The docket would have further disclosed that David Stern withdrew as CitiMortgage's counsel, and another firm was substituted in Stern's firm's place, two months before his firm supposedly executed the notice of voluntary dismissal and release of lis pendens, and over a year before that notice and release was recorded. It would also have disclosed that substantial prosecution and progress toward foreclosure continued to occur well after the purported satisfaction and voluntary dismissal were executed.

Third, the purported notice of voluntary dismissal dated in March 2011-after the withdrawal of the alleged attorney and firm who signed it-carried no certificate of service indicating service on counsel or delivery to CitiMortgage (which executed an affidavit stating that such a document was never received by CitiMortgage).

Fourth and finally, Porter certainly had knowledge that he was still a defendant in the CitiMortgage foreclosure case, yet apparently never disclosed to his own Mother, or his Mother's lender, that they would be buying their way into a lawsuit if they closed the loan to his Mother in 2012. The loan closing occurred in August 2012, well after the docket entries in the electronic, readily-available online records of the CitiMortgage foreclosure.

Porter's quitclaim deed to his Mother during the pendency of the foreclosure case and his own personal recordation of the purported satisfaction of mortgage over two years after it was supposedly executed (an act denied in the affidavit of NTC, the entity identified as the preparer) are additional indicia of bad faith on the part of Porter.

This summary judgment evidence creates triable, genuine issues of material fact. In Lloyd v. Chicago Title Insurance Co., 576 So.2d 310, 311 (Fla. 3d DCA 1990), this Court held that "the recording of a void or forged instrument cannot create legal title or protect those who may claim under it." (Citing McCoy v. Love, 382 So.2d 647 (Fla. 1979), and three earlier Florida cases). On this record, the single-page notice of voluntary dismissal and release of lis pendens was executed and recorded without authorization by, or notice to, CitiMortgage. Moreover, there was summary judgment evidence that the purported satisfaction of mortgage was not prepared by an employee of NTC and was not signed by an authorized representative of CitiMortgage.

Additional evidence of chicanery, even if by a person or persons as yet unidentified, is found in this record. Someone removed the predecessor trial judge's order of July 10, 2012, from the official court records between the time the trial judge signed it and the time "Order on Motion to Strike" was entered on the electronic docket (but without the usual pdf copy of the order as part of the entry). In addition, an attorney from the Stern law firm testified that, at the date of the purported (and subsequently-stricken) notice of voluntary dismissal and release of lis pendens, the Stern law firm was "downsizing," "winding down," and not doing that kind of work on the dates that the document was signed or recorded. He testified:

[A]fter March 31st, 2011, the only thing the law firm did was withdraw from cases. We weren't representing any clients. We had no authority to file something like this and to my knowledge no attorney with the firm at that point between March and June and there were only a handful of attorneys maybe five and he was not one of were filing motions to withdraw our cases. [Sic].

Our decision in Lloyd, which itself reversed a summary judgment in favor of a subsequent mortgagee relying on a fraudulent instrument, applies to this record. A factfinder could determine, though we do not decide the point at this juncture, that a fraudulent or "intervening criminal act" induced Sun West's detrimental reliance. Lloyd, 576 So.2d at 311.

Reversed and remanded for further proceedings.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      The purported satisfaction carried an execution and notarization date of October 30, 2009, some five months before CitiMortgage commenced its foreclosure action. The document was not filed for recording by Porter until over two years after that date of execution, and 22 months after the CitiMortgage foreclosure commenced.

      The NTC counsel and affiant noted, for example, that the supposed satisfaction of mortgage was notarized in Miami-Dade County, though NTC has no physical presence and has not signed documents there, as NTC's authorized agents in Florida are required to sign in the presence of a Pinellas County Notary, where NTC is located.

      The purported notice also bears no electronic date/time filing information for filing with the Circuit Court in March 2011; someone simply recorded it in the Official Book fifteen months later (June 2012).