text:
    WOODSON ELECTRIC SOLUTIONS, INC., etc., et al., Appellants, v. PORT ROYAL PROPERTY, LLC, etc., Appellee.
    No. 3D18-2194
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    Holmes Fraser, P.A., and Ian T. Holmes, Naples, David P. Fraser and Daniel P. Fraser (Naples), for appellants.
    Coffey Burlington, P.L., and Jeffrey B. Crockett and Kevin C. Kaplan, Miami, for appellee.
    Before EMAS, C.J., and LINDSEY and HENDON, JJ.
   HENDON, J.

The defendants, Woodson Electric Solutions, Inc., Robert J. Smallwood, and Richard L. Hanson (collectively, "the Defendants"), appeal from a non-final order denying their motion to dismiss and/or transfer for improper venue under section 47.011, Florida Statutes (2018). For the reasons that follow, we affirm.

Port Royal Property, LLC ("the Plaintiff") filed a five-count complaint against the Defendants in Miami-Dade County, stemming from the design, installation, and implementation of an audiovisual and internet systems in a house owned by the Plaintiff in Naples, Collier County, Florida. The Plaintiff's complaint alleges, in part, that the Defendants made misrepresentations as to their expertise, including that they specialized in the design, installation, and implementation of audiovisual systems; the Defendants knew that their representations were false; the Plaintiff justifiably relied on the Defendants' representations; and the Plaintiff was injured and damaged as a result of the misrepresentations. Further, the Plaintiff alleged that the Defendants intentionally misrepresented the quality of the components used for the systems, using several components that are of lower quality and cost than those specified in the contract. The Plaintiff's complaint alleges the following counts: breach of contract (Count I); breach of warranty (Count II); fraudulent misrepresentation (Count III); negligent misrepresentation (Count IV); and negligence (Count V). The Plaintiff alleged that venue is proper in Miami-Dade County because the causes of action accrued in Miami-Dade County.

The Defendants filed a motion to dismiss for improper venue and/or to transfer venue from Miami-Dade County to Collier County ("motion to dismiss"), asserting that venue is improper under section 47.011. In response to the Defendants' motion to dismiss, the Plaintiff filed the affidavit of its manager. The affidavit provides that prior to entering into the contract, the Defendants made misrepresentations as to their expertise relating to the design, installation, and implementation of the audiovisual systems. These misrepresentations induced the Plaintiff into entering into the contract, which was executed in Miami, Florida. Following a hearing, the trial court denied the Defendants' motion to dismiss and/or to transfer venue. The Defendants' appeal followed.

The Defendants contend that the trial court erred by denying the motion to dismiss. As at least one of the causes of action accrued in Miami-Dade County, we disagree. See Utilicore Corp. v. Bednarsh, 730 So.2d 853, 854 (Fla. 3d DCA 1999) (noting that venue was proper because at least one of the alleged causes of action accrued in the county where the action was filed).

Section 47.011, Florida Statutes (2018), provides: "Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located." The plaintiff has the option to select venue, and the plaintiff's choice of venue will be honored as long as the choice is based on one of the three statutory alternatives. See McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 508 (Fla. 4th DCA 2010). "The plaintiff bears the initial burden of alleging facts in the complaint sufficient to demonstrate that the action was filed in the proper venue." Drucker v. Duvall, 61 So.3d 468, 471 (Fla. 4th DCA 2011). If a defendant contests the plaintiff's choice of venue, the defendant "has the burden of clearly proving that the plaintiff's venue selection is improper" and must also demonstrate where venue is proper. McDaniel Reserve, 39 So.3d at 508.

Here, the Plaintiff asserted in its complaint that Miami-Dade County is a proper venue because the causes of action accrued in Miami-Dade County. Thus, if at least one of the causes of action accrued in Miami-Dade County, the Plaintiff's choice of venue is proper.

"For purposes of venue, a tort claim is deemed to have accrued 'where the last event necessary to make the defendant liable for the tort took place.' " McDaniel Reserve, 39 So.3d 504, 509 (Fla. 4th DCA 2010) (quoting Tucker v. Fianson , 484 So.2d 1370, 1371 (Fla. 3d DCA1986) ). "Stated another way, a cause of action of this type accrues at the moment the wrong and the injury both accrue." PricewaterhouseCoopers LLP v. Cedar Resources, Inc., 761 So.2d 1131, 1134 (Fla. 2d DCA 1999) ; see also Williams v. Goldsmith, 619 So.2d 330, 332 (Fla. 3d DCA 1993) ("In other words, a tort accrues where the plaintiff first suffers injury.").

As to the Plaintiff's misrepresentation claims, the last event necessary to make the Defendants liable for these tort claims is the injury and/or damages suffered by the Plaintiff as a result of the misrepresentation. Here, the Defendants contend that last element of the misrepresentation causes of action-injury and/or damages-were first realized in Collier County following the completion of the installation of the systems, and therefore, the cause of action accrued in Collier County. We disagree.

Based on the allegations set forth in the complaint, the Defendants made false representations as to their expertise relating to the design, installation, and implementation of the audiovisual systems; the Defendants knew that the representations were false; the Plaintiff relied on these misrepresentations; and the Plaintiff was injured and/or suffered damages as a result of the misrepresentation. As the Plaintiff executed the contract in Miami, the causes of action based on the Defendants' misrepresentations accrued in Miami, although the damages had not been fully realized. See Llano Fin. Grp., LLC v. Petit, 230 So.3d 141, 144 (Fla. 1st DCA 2017) (noting that a cause of action accrues when the "injury, although slight, is sustained in consequence of the wrongful act of another") (quoting City of Miami v. Brooks, 70 So.2d 306, 308 (Fla. 1954) ). Thus, as the causes of action based on the Defendants' alleged misrepresentation accrued when the contract was signed in Miami, venue is proper in Miami-Dade County. Accordingly, we affirm the trial court's order denying the Defendants' motion to dismiss for improper venue under section 47.011.

The remaining arguments raised by the Defendants do not merit discussion.

Affirmed.

      The other two statutory alternatives are not applicable. First, none of the defendants reside in Miami-Dade County. Second, there is no "property in litigation" because the claims against the Defendants "have no effect on the title or possession of the property." See McDaniel Reserve, 39 So.3d at 508 ("Because [the plaintiff's] claims against [the defendant] have no effect on the title or possession of the property and the complaint seeks only an award of money damages, there is no 'property in litigation' for the purpose of the third clause of section 47.011, Florida Statutes.").

      To prevail on a claim for fraudulent misrepresentation, the Plaintiff must establish: "(1) a false statement concerning a material fact; (2) the representer's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation." Howard v. Murray, 184 So.3d 1155, 1167 n.22 (Fla. 1st DCA 2015) (quoting Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So.3d 306, 310 (Fla. 1st DCA 2011) ). Similarly, to prevail on a claim for negligent misrepresentation, the Plaintiff must establish: "(1) the defendant made a misrepresentation of material fact that he believed to be true but which was in fact false; (2) the defendant was negligent in making the statement because he should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely ... on the misrepresentation; and (4) injury resulted to the plaintiff acting in justifiable reliance upon the misrepresentation." Howard, 184 So.3d at 1167 n.23 (quoting Specialty Marine, 66 So.3d at 309 (citation omitted) ).


source: Caselaw Access Project

author: MILLER, J.

license: Public Domain

text:
    Edward MOZIE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D15-0434
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    Edward Mozie, in proper person.
    Ashley Moody, Attorney General, for respondent, the State of Florida.
    Before SALTER, LINDSEY, and MILLER, JJ.
   MILLER, J.

Upon review of the petition for writ of habeas corpus, it is ordered that said petition is dismissed. See Baker v. State, 878 So.2d 1236 (Fla. 2004).


author: PER CURIAM.

text:
    BLUE STAR RESTORATION INC., (a/a/o Rodolfo Berroa), Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D18-1742
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    The Mineo Salcedo Law Firm, P.A., and Peter Mineo, Jr., and Jordan Bieber (Davie), for appellant.
    Hinshaw & Culbertson LLP, and Maureen G. Pearcy, Coral Gables, for appellee.
    Before EMAS, C.J., and LINDSEY, and HENDON, JJ.
   PER CURIAM.

Blue Star Restoration Inc., as assignee of Rodolfo Berroa's homeowners insurance policy, appeals the trial court's order granting Citizens Property Insurance Corporation's Motion for Summary Judgment and entering final summary judgment in Citizens' favor and the trial court's order denying Blue Star's Motion for Rehearing/Reconsideration.

"Our standard of review of an order granting summary judgment is de novo ." White v. Ferco Motors Corp., 260 So.3d 388 (Fla. 3d DCA 2018). "We review the record to determine whether there are genuine issues of material fact that preclude summary judgment." Id. (citing Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225, 1227 (Fla. 3d DCA 2002) ). Our review of the record discloses genuine issues of material fact regarding whether the interior rain damage exclusion in the homeowners insurance policy precludes coverage for water-damage repairs involved in this case based on the deposition testimony of Blue Star's expert, Rafael Leyva. Accordingly, we reverse and remand for further proceedings consistent herewith.

Reversed and Remanded.


author: SALTER, J.

text:
    LB JUDGMENT HOLDINGS, LLC, Appellant, v. Luis R. BOSCHETTI, et al., Appellees.
    Nos. 3D18-1190 3D18-1323 3D18-1726
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    Alejandro Vilarello, for appellant.
    Bell Rosquete Reyes and Javier A. Reyes and Armando Rosquete ; Aran Correa & Guarch and Alexander Esteban and Jorge A. Perez, Coral Gables; Greenberg Traurig, P.A., and Julissa Rodriguez and Stephanie L. Varela, Miami; Sanchez-Medina, Gonzalez, Quesada, Lage, Gomez & Machado LLP, and Peter A. Gonzalez and James C. Kellner, Coral Gables; Peterson, Baldor & Maranges, PLLC, and Matthew Maranges, Michael P. Peterson, Jose I. Baldor and Ceasar X. Delgado, Miami, for appellees.
    Before SALTER, LOGUE and LINDSEY JJ.

      Judge Logue did not participate in the oral argument conducted in these cases.

   SALTER, J.

LB Judgment Holdings, LLC ("LB Judgment"), judgment creditor (as assignee from Ocean Bank) under a 2015 money judgment exceeding $ 10 million against Fountains 149, LLC, and Luis R. Boschetti ("Boschetti"), seeks review of a non-final order discharging notices of lis pendens filed against a group of impleaded companies in proceedings supplementary initiated to collect the judgment. LB Judgment contends that the impleaded entities held property (a) in which Boschetti had a property interest, or a debt or other obligation owed to him by, the impleaded companies, or (b) acquired by fraudulent transfer from Boschetti.

We have consolidated the three cases seeking review of related non-final orders:

LB Judgment Holdings, LLC v. Boschetti, Case No. 3D18-1190. This case seeks review of the order discharging LB Judgment's notices of lis pendens filed against real estate held by seventeen of the impleaded entities.
1051 North Venetian Drive, LLC v. LB Judgment Holdings, LLC, Case No. 3D18-1323. Several of the impleaded entities appeal an order denying their motion to quash service and to dismiss for lack of personal jurisdiction.
Boschetti v. LB Judgment Holdings, LLC, Case No. 3D18-1726. In this case, the impleaded entities and certain "interested non-parties" seek review of one part of the bond order requiring LB Judgment to post eighteen bonds in connection with their lis pendens filings, totaling approximately $ 18,000,000.00 in face amount. Those appellants challenge the circuit court's determination of attorneys' fees in the computation of one of the eighteen lis pendens bonds. LB Judgment cross-appealed the order as to all seventeen of the property-specific bonds as well as the separate bond established for the impleaded defendants' attorneys' fees.

For the reasons which follow, we reverse and vacate the order discharging the notices of lis pendens (Case No. 3D18-1190); we affirm the order sought to be appealed by several of the impleaded entities (Case No. 3D18-1323); and we affirm the bond order as to the seventeen properties owned by impleaded parties as well as the "Attorneys' Fees Bond," in the appeal and cross-appeal in Case No. 3D18-1726. As each of the three appeals has been taken from a non-final order, we vacate our temporary stay of the bond order, allowing full pretrial discovery and trial to ensue.

I. The Order Discharging the Notices of Lis Pendens (3D18-1190)

A. Standard of Review and "Fair Nexus"

This appeal turns on a legal issue, and thus our review is de novo. Section 48.23, Florida Statutes (2018), governs notices of lis pendens and the prerequisites for filing them. Section 48.23(3) specifies that when, as here, the underlying lawsuit is not founded on a "duly recorded instrument" or a lien claimed under part I of chapter 713, Florida Statutes (governing construction liens), "the court shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions."

Florida's courts have carefully prescribed the procedures to be followed by the trial courts in controlling and discharging a lis pendens in the cases that are not founded on a recorded instrument or construction lien. Trial courts and reviewing courts alike must balance (a) the lis pendens proponent's need to place non-parties on notice of the proponent's claims affecting the owner's real property, and (b) the damages that may be suffered by the owner (as third parties may turn away from the property because of the cloud of litigation) should the proponent's claims fail to prevail.

The balancing is achieved through two considerations: (1) is there a "fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit"? Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993) ; and (2) if there is such a nexus, what is the appropriate amount of a lis pendens bond to be required of the proponent, bearing "a reasonable relationship to the amount of damages which the property-holder defendant demonstrates will likely result if it is later determined that the notice of lis pendens was unjustified"? Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915, 918 n.2 (Fla. 1996).

"Fair nexus" is the issue we address in Case No. 3D18-1190, while lis pendens bond amounts are addressed here as part of Case No. 3D18-1726. Importantly, at the preliminary procedural point of a motion to dismiss the lis pendens before trial, the evaluation of "fair nexus" is not a trial or mini-trial on the merits of all elements of the lis pendens proponent's claims. Rather, "[t]he relevant question is whether alienation of the property or the imposition of intervening liens ...conceivably could disserve the purposes for which lis pendens exists. Where the answer is yes, fair nexus must be found." Von Mitschke-Collande v. Kramer, 869 So.2d 1246, 1250 (Fla. 3d DCA 2004) (alteration in original) (quoting Chiusolo, 614 So.2d at 492 ).

In Acapulco Construction, Inc. v. Redavo Estates, Inc., 645 So.2d 182, 183 (Fla. 3d DCA 1994), this Court highlighted that distinction: "Clearly, it was not the plaintiffs' burden to establish their constructive trust claim by the greater weight of the evidence, but only to establish a 'fair nexus' between the apparent legal or equitable ownership of the subject property and the dispute involved in the instant lawsuit." We also observed that this requirement could be satisfied by a plaintiff through "an evidentiary showing of only a good faith, viable claim." Id.

In Regents Park Investments, LLC v. Bankers Lending Services, Inc., 197 So.3d 617, 621 (Fla. 3d DCA 2016), we provided additional guidance, observing that "it is impracticable to require a proponent of a lis pendens to fully prove each element of its claim in an evidentiary hearing where the case has not been noticed for trial and the parties may not even have completed discovery." We agreed with our sibling district court's holding in Nu-Vision, LLC v. Corporate Convenience, Inc., 965 So.2d 232, 236 (Fla. 5th DCA 2007), that the lis pendens proponent must make "a minimal showing that there is at least some basis for the underlying claim[ ] [a]nd ... show that he or she has a good faith basis to allege facts supporting a claim, and that the facts alleged would at least state a viable claim."

B. The Record in the Present Case

With these authorities in mind, we turn to the case at hand. LB Judgment's amended motion to commence proceedings supplementary includes allegations detailing its efforts to collect the $ 10,094,867.71 final judgment against Boschetti and Fountains 149, LLC, between entry of the judgment in February 2015 and the filing of the amended motion three years later. Those efforts culminated in nary a dime collected.

But those efforts and diligent investigation did ascertain that certain assets of Boschetti had been transferred to the control of his wife, his brother, and his brother's wife and daughter, through single-purpose entities controlled by them. At least some of the alleged transfers were pursuant to conveyances signed by Boschetti between the commencement of the underlying lawsuit and the entry of the final judgment sought to be collected, with multi-million dollar closing proceeds paid into a family-controlled entity. The supplemental complaint filed against the alleged alter ego entities claims that Boschetti transferred ownership in many of the entities to his wife, sister-in-law, and daughter-in-law "without receiving reasonably equivalent value, if any, in exchange," and that he transferred cash and capital to his spouse and the entities for the operation of the entities' real estate development business, concealing proceeds of the real estate activities from LB Judgment.

The supplemental complaint alleged two primary theories for direct claims against impleaded persons and entities. First, LB Judgment contended that certain entities were "alter ego entities"; that is, that Boschetti and his brother were "de facto owners" of those entities and controlled the disposition of assets that were, in whole or in part, Boschetti's property otherwise amenable to execution in connection with LB Judgment's unsatisfied judgment.

Second, LB Judgment alleged that Boschetti had engaged in fraudulent transfers of assets in order to avoid collection of LB Judgment's judgment, subject to avoidance under sections 726.105 and 726.106, Florida Statutes (2017). These statutes and the remaining provisions of chapter 726 define circumstances in which a transfer is fraudulent as to a creditor based on the actual intent of the transferor/debtor, or in which the debtor transfers assets or assumes obligations without receiving a "reasonably equivalent value in exchange." Section 726.108, "Remedies of creditors," permits a broad assortment of remedies to a creditor entitled to relief from fraudulent transfers, including avoidance of the transfer or obligation "to the extent necessary to satisfy the creditor's claim," attachment, injunctive relief, receivership, and "[a]ny other relief the circumstances may require."

LB Judgment's commencement of proceedings supplementary is authorized by section 56.29, Florida Statutes (2017). In Longo v. Associated Limousine Services, Inc., 236 So.3d 1115, 1120 (Fla. 4th DCA 2018), the Fourth District observed that "the current statutory scheme set forth in section 56.29(2) is well-suited to fraudulent transfer cases," though the court questioned whether "the legislature contemplated cases involving alter ego liability." The Fourth District ultimately considered that question and approved such a theory of recovery: "in cases alleging alter ego liability, the description requirement of section 56.29(2) is satisfied if the judgment creditor describes any property of an alter ego of the judgment debtor not exempt from execution in the hands of any person, or any property, debt, or other obligation due to an alter ego of the judgment debtor which may be applied toward the satisfaction of the judgment." Id. at 1121.

LB Judgment filed over 1,000 pages of corporate and property records, a spreadsheet of "ties to Luis Boschetti" for the impleaded single-purpose entities, as well as website screenshots (deleted as collection efforts intensified) of advertisements for a Boschetti company and its portfolio of properties owned by the impleaded defendants. LB Judgment also claims "a pattern of baseless, repetitive objections and motions to quash subpoenas aimed only to delay and obstruct post-judgment discovery" (a claim vigorously denied by Boschetti and the impleaded defendants).

Answering the question framed in Chiusolo, we conclude that the record demonstrates a fair nexus between the apparent legal or equitable ownership of the property described in the notices of lis pendens and the dispute embodied in the supplementary proceeding. Simply stated, if LB Judgment proves its allegations, it may recover the judgment debt through an execution and sale of the property or other assets transferred to Boschetti, or controlled by him, to the extent of that debt and the extent of Boschetti's interest in a particular property or asset.

Subject to the requirements of sections 56.29 and chapter 726, Florida Statutes, LB Judgment may avail itself of the remedies provided by those statutes and need not stand by as a judgment debtor transfers or controls assets in a scheme to avoid the application of the assets to the judgment debt. The proceedings supplementary statute allows a judgment creditor "to ferret out what assets the judgment debtor may have or what property of his others may be holding for him, or may have received from him to defeat the collection of the lien or claim, that might be subject to the execution." Young v. McKenzie, 46 So.2d 184, 185 (Fla. 1950) (quoted in Longo, 236 So.3d at 1118 ).

This Court has held that when the jurisdictional requirements of section 56.29 have been met (as here), the statute is to be given a liberal construction to provide the judgment creditor the most complete relief possible. Mejia v. Ruiz, 985 So.2d 1109, 1112 (Fla. 3d DCA 2008). LB Judgment established the requisite fair nexus to the properties identified in the notices of lis pendens, and we therefore reverse and vacate the order discharging the notices.

II. The Order Regarding Service and Jurisdiction (3D18-1323)

The trial court carefully considered the impleaded defendants' emergency motion to quash service and to dismiss for lack of personal jurisdiction at a specially set ninety-minute hearing in May 2018. The court concluded that the requirements of section 56.29 for the issuance of notices to appear were satisfied and denied the emergency motion, citing Longo, 236 So.3d 1115.

We find no error in the trial court's order denying the impleaded defendants' emergency motion to quash service and to dismiss for lack of personal jurisdiction.

III. The Lis Pendens Bond Order (3D18-1726)

The impleaded defendants owning the properties subject to the notices of lis pendens appealed, and LB Judgment cross-appealed, the order of July 17, 2018, requiring LB Judgment to post eighteen separate cash or surety bonds as a condition of the notices of lis pendens (one for each of the seventeen properties owned by impleaded defendants and described in the notices of lis pendens, and one separate bond as prospective damages for attorneys' fees in the event of an ultimate determination that the notices of lis pendens were improvidently filed).

Under the terms of that order, all eighteen bonds (totaling over $ 18 million) were required to be posted within three calendar days from the date of the order, failing which the notices of lis pendens would be discharged automatically. No provision was made to allow LB Judgment to post individual bonds on some properties, and to decline to post such bonds on others.

The impleaded parties appealed that order, maintaining that the attorneys' fee bond of $ 1,088,900 impermissibly excluded "attorneys' fees to be foreseeably incurred in prevailing on the merits of [LB Judgment's] underlying claims." LB Judgment cross-appealed the order, contending here that only the fees incurred in obtaining a discharge of the notices of lis pendens could be recoverable and included as a component of the attorneys' fee bond. As already noted, LB Judgment also challenged the seventeen property-specific bond amounts in the motion for review in Case No. 3D18-1190.

A. Damages for Wrongful Lis Pendens-Attorneys' Fees

We repeat the text of section 48.23(3) as it relates to notices of lis pendens for which the underlying claim is not founded on a duly recorded instrument or statutory construction lien: "the court shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions." Injunction bonds are addressed by Florida Rule of Civil Procedure 1.610, and subparagraph (b) of that rule specifies that such bonds are "conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined."

As to the attorneys' fees component of a bond, we reject the impleaded parties' argument that such fees include not only those incurred in obtaining a discharge of the lis pendens, but also those fees incurred during the entire litigation in the trial court. See Lake Worth Broad. Corp. v. Hispanic Broad., Inc., 495 So.2d 1234 (Fla. 3d DCA 1986). The impleaded parties' estimate of $ 4,678,450.00 in trial and appellate attorneys' fees and costs which might be incurred at the trial of the alter-ego claims is speculative.

The trial court's computation of the incurred fees and costs to date, with an additional allowance for "estimated prospective fees of $ 541,400," was supported by competent, substantial evidence and will not be disturbed here. The trial court ably followed the methodology for "anticipated attorney's fees incurred by the [property owner] in the event the lis pendens filed by [a lien claimant] was unjustified." S and T Builders v. Globe Props., Inc., 944 So.2d 302, 303 (Fla. 2006).

Further, section 48.23(2) limits the notices of lis pendens in the present case to a term of one year, as LB Judgment's pleadings are not founded on a duly recorded instrument or construction lien. In order to keep the notices in place beyond that yearlong term, LB Judgment will be required to give reasonable notice, file a motion, and show good cause for the extension. If that occurs, the statute authorizes the trial court to "impose such terms for the extension of time as justice requires." "Such terms" could, of course, include an increase or reduction in the lis pendens bond amount for attorneys' fees based on developments in the case to that point.

B. Damages Relating to Effects on Title

LB Judgment also contends that the trial court erred in its determination of the amount of the seventeen property-specific lis pendens bonds in the order of July 17, 2018. The amount of each bond was set following a full-day evidentiary hearing. Our review focuses on the legal issues inherent in setting such bonds rather than the dollar amounts of the "unsecured loans" and "capital contributions" placed in evidence by the impleaded parties and apparently relied upon by the trial court as the measure of prospective damages and thus the bond amounts.

As noted at the outset of this opinion, the Supreme Court of Florida held that the amount of a lis pendens bond "should bear a reasonable relationship to the amount of damages which the property-holder defendant demonstrates will likely result if it is later determined that the notice of lis pendens was unjustified." Med. Facilities Dev., Inc., 675 So.2d at 918 n.2. The leading case on the computation of damages when a lis pendens has been found unjustified is Haisfield v. ACP Florida Holdings, Inc., 629 So.2d 963 (Fla. 4th DCA 1993).

Haisfield looks back at losses that were actually suffered by a property owner from a lis pendens found to be unjustified, rather than at prospective losses that might be suffered. Its methodology is the best yardstick for evaluating the market value component of damages that may result from a wrongfully-filed lis pendens. Haisfield instructs that such damages, if any, are measured by any decline in market value between the time the lis pendens is recorded and the time it is discharged. The proponent of a lis pendens might pay no damages if the market value increased substantially during that time. See Levin v. Lang, 994 So.2d 445 (Fla. 3d DCA 2008).

Haisfield also recognizes that the expenses of preservation and maintenance of the property subject to a lis pendens may be awarded for the interval between recordation and discharge if the lis pendens is found to be unjustified and the expenses are a consequence of the unjustified lis pendens.

In the present case, LB Judgment stipulated that it would not maintain a particular notice of lis pendens in the face of a proposed bona fide, arms'-length sale of a property by an impleaded party. The net proceeds of such a sale would be escrowed to abide the outcome of the proceedings supplementary relating to that party. In theory, this provision of the recorded notices would mitigate damages relating to a lost opportunity for sale.

LB Judgment's expert witness computed, for each of the seventeen properties owned by an impleaded defendant, a fair market value sales price and deductions for brokerage, mortgage debt, and past due taxes. This computation, listed as "net market value," corresponded to the impleaded party's equity in the property.

LB Judgment's expert then applied a percentage for loss of use of those proceeds representing the lost investment return on the equity in that property during the period the notice of lis pendens made the owner unable or unwilling to conclude a sale of the property. The resulting figures were compiled in a spreadsheet for all seventeen properties. The "lost interest for six months" was then advanced as a reasonable bond amount for the lis pendens on each property. The total for all seventeen properties came to $ 31,696,500 in gross market value, $ 11,233,301 in net market value (equity), and $ 343,242 as the proposed lis pendens bond amount.

The impleaded parties proffered a different model for prospective damages-a model neither supported nor rejected by any Florida case on prospective lis pendens damages or bonds. The impleaded parties argued that the notices of lis pendens and cloud of litigation might cause loan defaults or bankruptcies, such that all of the capital contributions and unsecured loans might be lost and the properties foreclosed upon or sold for unpaid taxes. Under this theory, counsel for the impleaded property owners argued that the notices of lis pendens could cut off all sources of investment for the carrying costs and construction of residences on the affected properties, "essentially, game over for every single one of these companies because they will not be able to meet their obligations," (as counsel characterized it).

The impleaded parties provided accounting records titled "Loans & Capital Contributions" for each entity dated two days before the evidentiary hearing. The trial court ultimately accepted a prospective damages model which assumed for each property: (1) mortgage debt would not exceed the value of the encumbered property, so that the lender would take back the property and the debt would be extinguished; and (2) the damages would flow from the loss of all unsecured loans and capital contributions in the title holding entity. Using the authenticated accounting statements and the amounts of the unsecured loans and capital contributions provided by the impleaded parties, the trial court accepted a total of $ 16,993,632.07 (broken out individually for each property) for the seventeen affected properties.

We labor under the same limitations as LB Judgment and the trial court: pretrial discovery on the fraudulent transfer and alter ego allegations was far from complete on the supplemental complaint. LB Judgment may or may not be able to prove that the judgment debtors concealed their interests in some of the investments (unsecured loans and capital contributions) in the impleaded parties-if those allegations were proven, the bond amount could be unfairly high. But the trial court properly did not engage in conjecture on those issues; nor can we. And to reiterate the point, when and if the emergent facts support a higher or lower bond, the trial court has the discretion (upon motion and further hearing) to reconsider the amount.

We thus affirm the trial court's order setting seventeen separate bond amounts for the properties. We interpret the order to authorize each notice of lis pendens to remain in force or be subject to discharge according to its associated and separate bond requirement, although the separate (and unitary) attorneys' fees bond applicable to all seventeen notices must also be posted as a condition of the existing order-even if only a single property-related bond is posted.

We reverse that provision of the order requiring that any such bonds be posted within three calendar days (presently stayed by this Court); LB Judgment shall have ten days from the date of this Court's mandate in these cases within which to comply.

IV. Conclusion

The trial court's non-final order discharging the notices of lis pendens is reversed and vacated. The trial court's order denying certain impleaded parties' motions to quash service and to dismiss for lack of personal jurisdiction is affirmed. The trial court's non-final order establishing the amount of seventeen property-specific lis pendens bonds and a separate "Attorneys' Fee Bond" is affirmed, subject to a modification in the time period allotted for LB Judgment to post the bonds in the requisite form and amounts. The seventeen property-related bonds are separate, such that LB Judgment may post any one or more of them, but if any such bond is posted, then the Attorneys' Fee Bond must also be posted for the specified lis pendens to remain in force. Non-compliance with these bond requirements shall entitle the applicable impleaded property owner to the immediate discharge of the notice of lis pendens relating to that property.

Paragraph 6 of this Court's order or October 9, 2018, temporarily staying the trial court's lis pendens bond order, is hereby vacated and is superseded by the provisions of this opinion pertaining to the eighteen bonds in question.

Non-final orders affirmed in part and reversed in part; temporary stay vacated.

      LB Judgment Holdings, LLC, was substituted for the prior owner of the money judgment sought to be collected in the circuit court proceedings supplementary. In this opinion, "LB Judgment" refers to those prior owners/assignors as well.

      Although each of the cases was initiated as an appeal from a non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(B), there are numerous reported Florida appellate opinions treating orders regarding lis pendens and lis pendens bonds as appropriate for certiorari review rather than under the non-final order rule addressing injunctions. Here, as in Rodriguez v. Guerra, 254 So.3d 521, 521 n.1 (Fla. 3d DCA 2018), we acknowledge both forms of review of such orders and conclude that the result "would have been the same had appellant filed a petition for certiorari relief rather than an appeal."

      LB Judgment also challenged the subsequent lis pendens bond amount order in its appeal in Case No. 3D18-1190. The bond order was entered pursuant to a relinquishment after the notice of appeal was filed in Case No. 3D18-1190. The relinquishment was granted in order to provide a more complete record for this Court's consideration of a stay pending appeal (framed by LB Judgment's motion for review). We then consolidated all three of the related appeals. We address all of the parties' arguments pertaining to the bond amounts, whether initially raised in Case No. 3D18-1190 or in Case No. 3D18-1726, in the section of this opinion containing the analysis of Case No. 3D18-1726.

      LB Judgment also alleged a civil conspiracy to hinder, delay, or defraud LB Judgment, as among Boschetti and the impleaded defendants, and an action for declaratory relief to determine LB Judgment's legal and equitable interests in the impleaded parties and designated properties.

      The spreadsheet used check marks to indicate when an impleaded defendant was engaged in real estate development; when it had the same managers, including Boschetti; when it had the same address of record; when it used the same realtors; when it identified the developer as "BF Group" or "Insignia Development Partners, LLC"; when there was overlapping bank signature authority; and when it used the same attorneys.

      On this record, the mortgage debt considered by the expert was based on the mortgage as recorded; the expert did not have discovery documents reflecting the actual balance of the indebtedness or assuring that the mortgage was institutional or at least arms'-length.

      The expert used Florida's statutory interest rate on judgments (effective July 1, 2018), 5.97% per annum, as the rate of return on the net sales proceeds calculated for a given property.

      Section 48.23(4), Florida Statutes (2018), also specifies that the one-year term of the existing notices of lis pendens "does not include the period of pendency of any action in an appellate court."


author: EMAS, C.J.

text:
    Jacques EDWARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1486
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.
   EMAS, C.J.

Jacques Edward appeals from a de novo resentencing hearing at which a successor judge found that Edward qualified as a habitual violent felony offender and sentenced him to forty years in state prison, the exact same sentence imposed by the original trial court judge.

On appeal, Edward contends that the successor judge failed to exercise her discretion in fashioning the appropriate sentence at this "clean slate" resentencing proceeding, and instead simply re-imposed the sentence imposed at the original sentencing. Edward asserts that the successor judge appeared to be under the belief she did not have the same discretion that the original judge had in determining the appropriate sentence to impose on Edward. We agree.

Upon our review of the record, including the transcript of the resentencing hearing, we conclude that the successor judge was indeed under the impression that, once it concluded that Edward qualified as a habitual violent felony offender, she should defer to the sentence imposed by the original judge. At the conclusion of the resentencing hearing, and after entertaining defense counsel's argument for a lesser sentence, the successor judge made the following statements immediately before imposing the same forty-year sentence imposed by the original judge:

[Defense counsel], while I am going to agree with you that forty years is an awfully long time for what appears to be trafficking of a quarter of a kilo of cocaine, we're here today only because [the original judge's] pronouncement of the defendant's sentence was not clear .
I don't see a reason, whereby, I can or should substitute my thoughts for that of the trial judge, who had the opportunity to view the defendant and the proceedings years ago.

(Emphasis added).

Edward's attorney reminded the successor judge that this was a de novo resentencing, and that she possessed the same discretion as the original judge and was not limited or constrained by the original judge's forty-year sentence. The successor judge, however, appeared to reject this position:

No. I think [the original judge] had ample opportunity to view the case and ample opportunity to be there for the proceedings, so I don't see that you have presented sufficient evidence to have me change that [ ].

A de novo resentencing means the defendant is entitled to a new sentencing hearing with "the full array of due process rights." State v. Collins, 985 So.2d 985, 989 (Fla. 2008). A de novo resentencing "must be a 'clean slate,' meaning that the defendant's vacated sentence becomes a 'nullity' and his resentencing should proceed de novo on all issues bearing on the proper sentence." Galindez v. State, 955 So.2d 517, 525 (Fla. 2007). Importantly for our purposes, this means that the trial court "is under no obligation to make the same findings as those made in a prior sentencing proceeding." Morton v. State, 789 So.2d 324, 334 (Fla. 2001).

As applied in the instant case it means that, while the trial court must declare Edward to be a habitual violent felony offender if the State proves he meets the statutory criteria, the trial court nevertheless retains the discretion not to impose a habitual violent felony offender sentence. See § 775.084(3)(b) (providing: "The court, in conformity with the procedure established in paragraph (3)(a), may sentence the habitual violent felony offender as follows ... ") (emphasis added); State v. Hudson, 698 So.2d 831 (Fla. 1997) ; Cotton v. State, 588 So.2d 694 (Fla. 3d DCA 1991) ; Wright v. State, 599 So.2d 179 (Fla. 2d DCA 1992).

It also means that the original judge's sentence was not binding in any way on the successor judge's determination of an appropriate sentence at the de novo resentencing. The transcript of the resentencing in the instant case reflects that the successor judge mistakenly believed that, upon determining that Edward qualified as a habitual violent felony offender, she should re-impose the same sentence imposed by the original judge, according the original sentence a presumption of correctness which had to be overcome by the defense at the resentencing. This was erroneous, and the successor judge was instead required to treat this as a clean slate sentencing, consider the evidence and the arguments anew, and independently determine the appropriate sentence.

We therefore vacate the sentence, and reverse and remand for a de novo resentencing. And because we are remanding (and to minimize the likelihood that it will return to us on this same issue), we point out (as discussed supra at note 1) that the trial court improperly found Edward's prior felony conviction in F92-39428A to be a qualifying offense under the habitual violent felony offender statute. Edward was released from his prison sentence for that offense more than five years prior to the commission of the instant offense. Although the trial court also (and properly) found Edward's prior offense and prison sentence in F91-36012 qualified him as a habitual violent felony offender, it is unclear from the transcript of the proceedings whether the trial court relied upon both offenses in imposing sentence. Upon remand and at the de novo resentencing, the trial court shall not rely upon F92-39428A as a qualifying offense under the habitual violent felony offender statute.

Reversed and remanded with directions to conduct a de novo resentencing, at which Edward shall be present and represented by counsel.

      We reject Edward's additional claim that his forty-year sentence (with a fifteen-year mandatory minimum) as a habitual violent felony offender was illegal. Edward's prior conviction and prison sentence in F91-36012 alone qualified him to be sentenced in the instant case as a habitual violent felony offender under section 775.084(2), Florida Statutes (2001). However, Edward is correct that the trial court erred in relying upon F92-39428A; it was not a "qualified offense" under the habitual violent felony offender statute, because the instant offense was not "committed within 5 years of the defendant's release from a prison sentence ... that is imposed as a result of a prior conviction for an enumerated felony," as required under section 775.084(1)(b) 2.b.


text:
    The STATE of Florida, Appellant, v. Isiah GRIFFIN, Appellee.
    No. 3D14-2460
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellant.
    Rasco Klock Perez & Nieto, and Joseph P. Klock, Jr. and Hilton Napoleon, II, Coral Gables, for appellee.
    Before SALTER , LOGUE and SCALES, JJ.

      Did not participate in oral argument.

      Did not participate in oral argument.

   PER CURIAM.

Affirmed. See Born-Suniaga v. State, 256 So.3d 783, 786 (Fla. 2018) (holding that the State is not entitled to Florida Rule of Criminal Procedure 3.191(p)'s recapture period when the State terminates prosecution and files new charges based on the same conduct before speedy trial period expires, but fails to notify the defendant of new charges until after expiration of speedy trial period).


author: SCALES, J.

text:
    The STATE of Florida, Petitioner, v. Phillip MACKEY, Respondent.
    No. 3D18-757
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    Ashley Moody, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for petitioner.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for respondent.
    Before EMAS, C.J., and LOGUE and SCALES, JJ.
   SCALES, J.

In a petition filed on April 18, 2018, the State of Florida seeks certiorari review of the lower court's March 19, 2018 "Order Granting Defendant's Motion to Enforce Jury Verdict." Because the order on review effectively dismissed the information under section 924.07(1)(a) of the Florida Statutes (2018) and Florida Rule of Appellate Procedure 9.140(c)(1)(A), it was an appealable order that could be reviewed only if review were sought within fifteen days of rendition. See Fla. R. App. P. 9.140(c)(3) (providing that the State shall file its notice of appeal "with the clerk of the lower tribunal within 15 days of rendition of the order to be reviewed"). We lack jurisdiction to review the order, and, therefore, dismiss the petition, because it was not filed within fifteen days of the rendition of the challenged order.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

1. The trial

The State charged Phillip Mackey by information with one count of attempted first degree premeditated murder for shooting the victim with a firearm on or about February 21, 2016. The case was tried before a jury in October 2017. At trial, Mackey acknowledged that he was the shooter, but argued that he had acted in self-defense.

At the conclusion of the trial, the lower court instructed the jury on the charged offense of attempted first degree premeditated murder and the lesser included offenses of attempted second degree murder and attempted manslaughter by act. In accordance with the jury instructions, the verdict form submitted to the jury asked the jury to decide whether Mackey was guilty of the charged offense, one of the lesser included offenses, or was not guilty.

During the jury's deliberation, the jury sent a note to the judge asking the court to "explain reasonable doubt once more." The court instructed the jury to rely on Florida Standard Jury Instruction (Criminal) 3.7, which defines reasonable doubt. Sometime later, the jury sent a second note to the judge stating the jury could not reach a verdict. In response, the court read Florida Standard Jury Instruction (Criminal) 4.1 to the jury over defense counsel's objection.

After deliberating further, the jury sent a third note to the judge stating, "We cannot agree on a verdict." Without objection, the court sent a court-prepared form to the jury room asking the jurors for a split of their vote. The completed document returned to the court read, in substance, as follows:

JURY POLL
Ladies and gentlemen of the jury, you have indicated that you cannot reach a verdict. Before you are excused, please indicate the following by filling in numbers only next to the options below:
Jurors in favor of Guilty [of] Attempted First Degree Premeditated Murder: 0
Jurors in favor of Guilty of Attempted Second Degree Murder: 0
Jurors in favor of Guilty of Attempted Manslaughter by Act: 1
Jurors in favor of Not Guilty: 5
So say we all:
_________________________
Foreperson - Sign
_________________________
Foreperson - Print Name

The jury foreperson signed the form and printed her name on the spaces provided at the bottom of the document.

The trial transcript reflects that, when the jury returned to the courtroom, the court immediately thanked the jurors for their service and discharged them. Neither party objected to the jury's discharge, nor sought to make any inquiry of the jury prior to their discharge. Upon the jury's exit from the courtroom, the following discussion ensued:

THE COURT: All right at this time the jury having been unable to reach a verdict, I'm declaring a mistrial. When do you all want me to reset this for?
[DEFENSE COUNSEL]: For trial, Judge?
THE COURT: For anything, what do you all want me to do next?
[STATE ATTORNEY]: State's asking for a sounding. Maybe we need time to check our witness availability.
THE COURT: That means I should set it for a status.
[STATE ATTORNEY]: For a status.
THE COURT: Mr. McNeil?
[DEFENSE COUNSEL]: I'm okay with a status. I would like the earliest possible trial date.
THE COURT: So let me set if [sic] for status on Monday ...

Defense counsel asked the trial court to set a bond. The trial court agreed and set bail at $ 5000. The proceeding then concluded.

That same day, October 25, 2017, the "Jury Poll" was filed with the lower court clerk. The parties are in agreement that neither party thereafter filed any timely post-trial motion and that the case then returned to a pre-trial posture.

2. Mackey's "Motion to Enter the Jury's Verdict"

On December 22, 2017, Mackey, through counsel, filed his "Motion to Enter the Jury's Verdict" ("Mackey's Motion"). Therein, Mackey argued that he could not be retried for attempted first degree premeditated murder or attempted second degree murder because either: (i) the "Jury Poll" constituted a unanimous not guilty verdict on those offenses; or (ii) the "Jury Poll" constituted an acquittal on both offenses under the parameters discussed in the United States Supreme Court's decision in Blueford v. Arkansas, 566 U.S. 599, 132 S.Ct. 2044, 182 L.Ed.2d 937 (2012), such that jeopardy had attached to the offenses. Mackey's Motion did not specify any rule of criminal procedure authorizing the motion.

On March 11, 2018, the State filed its response to Mackey's Motion. Therein, the State responded that Mackey's Motion should be denied on both grounds, claiming that: (i) the "Jury Poll" did not constitute a verdict for its failure to comply with Florida Rule of Criminal Procedure 3.440 governing rendition, reception, and recordation of a jury verdict in a criminal case; and (ii) on the facts of this case, the Blueford decision provided no basis for finding that the "Jury Poll" constituted an acquittal.

On March 19, 2018, a successor judge entered the order on review: "Order Granting Defendant's Motion to Enforce Jury Verdict" (the "subject order"). Therein, the trial court agreed with the State that the "Jury Poll" did not constitute a verdict "as envisioned" by rule 3.440 because it "was not read aloud in the presence of the jury, and the parties did not have an opportunity to poll the jury on the greater offenses of attempted first and second-degree murder in open court." Nevertheless, the lower court agreed with Mackey's alternate argument, finding that "under Blueford ... the jury poll here, while it did not constitute a verdict under the form of Rule 3.440, was an acquittal under Florida and federal jurisprudence, was final, and therefore bars retrial on the greater offenses of attempted first-degree murder and attempted second-degree murder." Finding that "retrial was prohibited" on those offenses, the lower court directed the State to file an amended information within ten days. Like Mackey's Motion, the subject order did not cite to any rule of criminal procedure authorizing consideration of Mackey's Motion.

3. The instant petition for writ of certiorari

On April 18, 2018, thirty days after the subject order was rendered below, the State filed in this Court the instant petition for writ of certiorari, seeking to quash the subject order. Therein, the State argues that it must seek review via certiorari, claiming that the subject order is not one of the enumerated appealable orders set forth in section 924.07(1) and rule 9.140(c).

Mackey moved to dismiss the State's petition for untimeliness, arguing that the subject order is akin to an order "dismissing ... an information" under section 924.07(1)(a) and rule 9.140(c)(1)(A), which must be appealed within fifteen days of the order's rendition. See Fla. R. App. P. 9.140(c)(3). This is because, Mackey claims, the subject order should be viewed as an order granting a Florida Rule of Criminal Procedure 3.190(c)(2) pre-trial motion to dismiss the charged offense from the information on double jeopardy grounds.

The State responded to Mackey's motion to dismiss, arguing that the subject order is akin to an order granting a Florida Rule of Criminal Procedure 3.680 post-trial motion for judgment on an informal jury verdict. Treating the order in this manner, the State argues, it may seek review only through a petition for writ of certiorari.

On April 23, 2018, in an unelaborated clerk's order, this Court denied Mackey's motion to dismiss the instant petition. Mackey then filed a petition for writ of prohibition in the Florida Supreme Court, arguing that this Court was acting in excess of its jurisdiction by failing to dismiss the State's certiorari petition. See Mackey v. State, SC18-915. The Florida Supreme Court stayed the instant petition pending resolution of the prohibition petition before it.

On September 28, 2018, via clerk's order, the Florida Supreme Court denied Mackey's petition for writ of prohibition, and lifted the stay of the proceeding in this Court. The matter was then fully briefed before this Court and oral argument held.

II. ANALYSIS

While the State urges us to reach the merits raised in its petition, we reach the merits only if we have certiorari jurisdiction to review the subject order. See Bode v. State, 909 So.2d 537, 537 (Fla. 2d DCA 2005). Hence, we must first decide the threshold question of whether the subject order is an appealable order under section 924.07(1) and rule 9.140(c)(1) for which appellate review must be sought within fifteen days of rendition, as required by rule 9.140(c)(3). If so, we must dismiss the State's petition because we cannot, under Florida Rule of Appellate Procedure 9.040(c), treat the State's petition as an appeal where the petition was not timely filed. See Pacha v. Salfi, 381 So.2d 373, 374 (Fla. 5th DCA 1980) ("The petition for writ of prohibition was not filed until [it was] too late for us to consider [the petition] as a proper appeal sought by an improper remedy pursuant to Fla. R. App. P. 9.040(c). If we entertain this petition for prohibition, we are extending to the petitioner the privilege of an untimely appeal."); see also State v. Bjorkland, 924 So.2d 971, 975 (Fla. 2d DCA 2006) ("Certiorari is an original proceeding designed to provide extraordinary relief. It is not intended to provide review when an error can be repaired on appeal."). For the following reasons, we conclude that the subject order was an appealable order which we can review only if appealed within fifteen days of rendition; therefore, we must dismiss the State's petition because we lack jurisdiction to adjudicate its merits.

1. Mackey's Motion is a pre-trial motion

Both parties agree - and the record supports the notion - that, after the trial court, on October 25, 2017, discharged the jury and declared a mistrial, the case returned to a pre-trial posture. Immediately after the trial court declared a mistrial, the court set the case for "status," telling the parties to figure out a future trial date. Defense counsel asked the trial court to set a bond. The trial court agreed, set bail at $ 5000 and then adjourned the proceeding.

The trial court docket reflects that the following events then occurred: (i) in early November 2017, Mackey posted bond; (ii) in late November 2017, a witness list was filed; (iii) in early December 2017, an amended discovery exhibit was filed; (iv) a trial hearing was scheduled for late February 2018; and (v) on December 22, 2017, nearly two months after the trial court had declared the mistrial, defense counsel filed Mackey's Motion. All of these events denote pre-trial proceedings, which compel us to view Mackey's Motion as a pre-trial motion.

2. This Court treats Mackey's Motion as a rule 3.190(c)(2) pre-trial motion

Having determined that Mackey's Motion is a pre-trial motion, we next must decide what rule of criminal procedure authorized Mackey's Motion.

Rule 3.190(c)(2) expressly authorizes a defendant to file a pre-trial motion to dismiss criminal charges from an information on the ground that the information charges the defendant "with an offense for which the defendant previously has been placed in jeopardy." Indeed, it appears this rule provides the exclusive procedural mechanism for a defendant to assert a double jeopardy challenge before trial.

While the State is correct that: (i) the title of Mackey's Motion, as well as the first issue raised therein, asked the trial court to treat the court-crafted "Jury Poll" as an actual jury verdict; (ii) Mackey's Motion failed to cite to rule 3.190(c)(2) ; and (iii) Mackey's Motion did not expressly ask that the information filed below be "dismissed," such frailties do not frustrate the substance of Mackey's Motion: challenging, on double jeopardy grounds, the State's ability to retry Mackey for attempted first degree premediated murder and attempted second degree murder. Because Mackey's Motion plainly asserts that retrying him on the offenses of attempted first degree premeditated murder and attempted second degree murder would violate double jeopardy, we have little difficulty treating Mackey's Motion as a rule 3.190(c)(2) motion, effectively seeking to dismiss the information on double jeopardy grounds. See State ex rel. Sebers v. McNulty, 326 So.2d 17, 18 n.1 (Fla. 1975) ("[C]haracterization [of a motion] when made is not as important as the legal effect at the time of ruling."); Castro v. State, 201 So.3d 77, 77 (Fla. 3d DCA 2015) ("Florida courts emphasize substance over form. In essence, if the pleading is incorrectly labeled, this Court will focus on the substance of the pleading and not its title.") (citation omitted); State v. Hankerson, 482 So.2d 1386, 1387 (Fla. 3d DCA 1986) (treating a "motion to reduce" as a motion to dismiss an information under rule 3.190(c)(4) ); State v. Smulowitz, 482 So.2d 1388, 1388-89 (Fla. 3d DCA 1986) (citing Hankerson, and treating a sworn motion to reduce a charge as a rule 3.190(c)(4) motion).

3. Under Hankerson and Smulowitz, the "legal effect" of the subject order on Mackey's Motion determines the subject order's appealability

Having determined that rule 3.190(c)(2) authorized Mackey's Motion, we next must decide whether this Court may treat the subject order as an order granting a rule 3.190(c)(2) motion, such that the notice of seeking appellate review of the subject order granting same must commence within fifteen days of its rendition. This Court's jurisprudence compels us to treat the subject order as such an order.

i. Hankerson

In Hankerson, this Court considered how, for appellate purposes, to treat an order granting the defendant's pre-trial "motion to reduce" the charge of robbery to theft. The trial court granted the motion because, "in the trial court's view, the facts ... did not support a robbery prosecution." Hankerson, 482 So.2d at 1387. The State appealed, arguing that this Court should treat the order under review as an order granting relief under rule 3.190(c)(4), which is appealable by the State under section 924.07(1)(a) and rule 9.140(c)(1)(A). Id.

Because rule 3.190 does not, on its face, authorize a pre-trial "motion to reduce," the defendant argued that this Court should dismiss the State's appeal, claiming that an order granting a pre-trial "motion to reduce" was not one of the enumerated orders the State is entitled to appeal. Id. This Court disagreed, finding that, "[a]nalytically, an order reducing a charge set forth in the information or indictment to some lesser-included charge is, despite its label, an order dismissing the charge in the information." Id. This Court explained further that, "as is well established, the label a party gives to a motion does not control its legal effect or the appealability of an order disposing of the motion." Id. (citing McNulty, 326 So.2d at 18, n.1 ).

ii. Smulowitz

Similarly, in Smulowitz, which was released on the same day as Hankerson, this Court held that a pre-trial order dismissing the crime charged in an information and reducing the charge to a lesser included offense should be treated as "the functional equivalent of a dismissal of an information or any count thereof" under rule 3.190(c)(4), and is "accordingly appealable by the state under Section 924.07(1)." Smulowitz, 482 So.2d at 1388-89 ; see also State v. K.L., 626 So.2d 1027, 1027 (Fla. 3d DCA 1993) (citing Hankerson, concluding that "the trial court's order, despite its label, was an order dismissing the charge in the petition for delinquency").

iii. The subject order

In the subject order granting Mackey's Motion, the trial court clearly stated that, while "no 'verdict ' occurred as envisioned by Florida Rule[ ] of Criminal Procedure 3.440," the "Jury Poll" was "an acquittal " under Blueford v. Arkansas that "bars retrial on the greater offenses of attempted first-degree murder and attempted second-degree murder." (Emphasis added). Moreover, though the trial court did not specifically state in the subject order that it was "dismissing" the State's information, the trial court ordered the State to file an amended information not containing the attempted murder offenses of which, according to the trial court, the jury had previously "acquitted" Mackey. Hence, the subject order was the functional equivalent of a dismissal of the information on double jeopardy grounds. Indeed, on finding that "retrial was prohibited" on the two attempted murder offenses, the trial court directed the State to "file an amended information within 10 days of this order" with "[t]rial [to] be promptly scheduled after a new charging document is filed and the defendant arraigned." There would be no need for the State to file a new information containing just the offense of attempted manslaughter by act unless the trial court had effectively dismissed the information on double jeopardy grounds.

For these reasons, notwithstanding its label as an "Order Granting Defendant's Motion to Enforce Jury Verdict," we conclude that the subject order had the legal effect of granting a rule 3.190(c)(2) motion to dismiss the information on double jeopardy grounds. As such, the subject order was appealable by the State under section 924.07(1)(a) and rule 9.140(c)(1)(A) as an order "dismissing ... an information or any count thereof."

III. CONCLUSION

We conclude that Mackey's Motion was, in relevant part, a rule 3.190(c)(2) pre-trial motion to dismiss the information on double jeopardy grounds. As such, the subject order expressly barring re-trial of Mackey on the offenses of attempted first degree premediated murder and attempted second degree murder on double jeopardy grounds was an appealable order under section 924.07(1)(a) and rule 9.140(c)(1)(A). The State, therefore, was required to seek appellate review of the order within fifteen days of its rendition. See Fla. R. App. P. 9.140(c)(3). Because the subject order was an appealable order, and, because the State did not file its petition within fifteen days after the subject order was rendered, we cannot treat the State's petition as an appeal. See Fla. R. App. P. 9.140(c)(3) ; Fla. R. App. P. 9.040(c). We therefore do not reach the merits of the State's petition, and express no opinion on its merits, because we are compelled to dismiss the petition for lack of jurisdiction.

Petition for writ of certiorari dismissed.

      The jury instruction amounts to giving an Allen charge. See Allen v. U.S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      Rule 3.440 provides:
      When the jurors have agreed upon a verdict they shall be conducted into the courtroom by the officer having them in charge. The court shall ask the foreperson if an agreement has been reached on a verdict. If the foreperson answers in the affirmative, the judge shall call on the foreperson to deliver the verdict in writing to the clerk. The court may then examine the verdict and correct it as to matters of form with the unanimous consent of the jurors. The clerk shall then read the verdict to the jurors and, unless disagreement is expressed by one or more of them or the jury is polled, the verdict shall be entered of record, and the jurors discharged from the cause. No verdict may be rendered unless all of the trial jurors concur in it.

      The statute and rule read, in all material respects, the same.

      Rule 3.190, titled "Pretrial Motions," provides, in material respects:
      (b) Motion to Dismiss; Grounds. All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.
      (c) Time for Moving to Dismiss. ... [T]he court may at any time entertain a motion to dismiss on any of the following grounds:
      ....
      (2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.
      Fla. R. Crim. P. 3.190(b), (c)(2).

      Rule 3.680 provides, in relevant part, that "[i]f a verdict is rendered from which it can be clearly understood that the jurors intended to acquit the defendant, a judgment of not guilty shall be rendered thereon even though the verdict is defective."

      We reject the State's argument that the Florida Supreme Court's disposition of Mackey's petition for writ of prohibition in that tribunal is somehow "law of the case." The clerk's order dismissing the prohibition provides that Mackey "has failed to demonstrate that a lower court is attempting to act in excess of its jurisdiction." The order cites to Mandico v. Taos Construction, Inc., 605 So.2d 850 (Fla. 1992) and English v. McCrary, 348 So.2d 293 (Fla. 1977), which, as relevant here, merely stand for the general proposition that "prohibition may not be used to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction." Mandico, 605 So.2d at 854. Nor does this Court's prior, unelaborated order denying Mackey's motion to dismiss the instant certiorari petition preclude this Court from reconsidering the issue now. "Under this court's long-standing practice, an order which denies a motion to dismiss the appeal without opinion is an interlocutory ruling which may be revisited by the merits panel." State v. Bryant, 901 So.2d 381, 382 (Fla. 3d DCA 2005). It was, therefore, permissible, in his response to the State's certiorari petition, for Mackey to renew his argument that the instant proceeding is untimely. Id.

      That is, whether the "Jury Poll" filed below prohibits retrial of Mackey on the charges of attempted first degree premeditated murder and attempted second degree murder.

      Rule 9.040(c) provides that "[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy."

      Rule 3.190(c)(4) permits the defendant to seek dismissal of charges within an information or indictment where "[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant."

      The State is correct that the Florida Supreme Court rejected this Court's application of Hankerson's "legal effect" methodology in Exposito v. State, 891 So.2d 525 (Fla. 2004). But, in doing so, the Florida Supreme Court was careful to distinguish Hankerson, rather than to overrule it.
      Exposito dealt with an order on a post-trial motion to reduce a criminal charge under Florida Rule of Criminal Procedure 3.620 ; while, as noted by the Florida Supreme Court, "Hankerson concerned a pretrial motion to reduce the charge under Florida Rule of Criminal Procedure 3.190(c)(4)." Id. at 529. Importantly, the Court determined that "because of the different procedural posture in Hankerson, ... the Third District's reliance on that case [in Exposito ] was misplaced." Id. The Court then went on to reject the State's arguments that the underlying order had the "legal effect" of granting a judgment of acquittal, and that the order was, therefore, appealable under section 924.07(1)(j). Id. at 531.
      Although in light of Exposito, the Hankerson /Smulowitz "legal effect" methodology has since been called into doubt by the First District in the context of pre-trial orders purporting to dismiss an information, see State v. Odom, 24 So.3d 1266 (Fla. 1st DCA 2009) (distinguishing Hankerson and Smulowitz on their facts), neither Hankerson nor Smulowitz have been overruled. The "legal effect" methodology, therefore, remains the established precedent in this district with respect to the appealability an order granting a criminal defendant's rule 3.190 pre-trial motion.

      At oral argument, the State conceded that the subject order was neither a judgment nor a verdict.


text:
    Oscar SYGER, Appellant, v. Moises KRIGER, Appellee.
    No. 3D18-0450
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    Arthur J. Morburger, Miami, for appellant.
    Kluger, Kaplan, Silverman, Katzen & Levine, P.L., Jason R. Marks, Miami and Ashley P. Frankel, for appellee.
    Before SALTER, and MILLER, JJ., and LEBAN, Senior Judge.
   PER CURIAM.

Affirmed. See Valdes v. GAB Robins N. Am., Inc., 924 So.2d 862, 866 (Fla. 3d DCA 2006) ("It is axiomatic that a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended with a 'bona fide termination' in that party's favor.") (quoting Doss v. Bank of Am., N.A., 857 So.2d 991, 994 (Fla. 5th DCA 2003) ); see also Union Oil of Cal., Amsco Div. v. Watson, 468 So.2d 349, 353 (Fla. 3d DCA 1985) ("Where dismissal is on technical grounds, for procedural reasons, or any other reason not inconsistent with the guilt of the accused, it does not constitute a favorable termination.").


text:
    A.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-0514
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and SALTER and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Merchan v. State, 495 So.2d 855, 856 (Fla. 4th DCA 1986).


text:
    M.H., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-312
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019.
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before SALTER, SCALES, and MILLER, JJ.
   PER CURIAM.

Affirmed. See Joseph v. State, 868 So.2d 5, 8 (Fla. 4th DCA 2004) ("[The defendant] was not asked for his opinion of the detective's credibility. [He] was not required to choose between conceding the point or branding the detective as a liar. Asking whether another witness is 'wrong,' 'not accurate,' or 'mistaken' is very different from asking whether the witness is a liar.") (internal citations omitted); U.S. v. Gaines, 170 F.3d 72, 82 (1st Cir. 1999) ("The witness was not required to choose between conceding the point or branding another witness as a liar."); U.S. v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994) ("Asking a witness whether a previous witness who gave conflicting testimony is 'mistaken' highlights the objective conflict without requiring the witness to condemn the prior witness a purveyor of deliberate falsehood, i.e., a 'liar.' ").


text:
    David RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-193
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before SALTER, LINDSEY, and HENDON, JJ.

      Judge Hendon did not participate in oral argument.

   SALTER, J.

The defendant, David Ruiz, appeals his judgment of conviction and sentences for battery on a law enforcement officer, resisting an officer with violence, and simple battery. We reverse the convictions under Mosely v. State, 842 So.2d 279, 280-81 (Fla. 3d DCA 2003). We hold that the trial court abused its discretion in curtailing defense counsel's questions of the jury venire about the sole defense theory.

The theory of defense at trial was that the officers used excessive force during Ruiz's arrest. During voir dire, the defense attempted three times to ask the prospective jurors their views about police use of excessive force. Each question was met with an objection by the state. After a side bar on the state's objection to the third question, the trial court ordered defense counsel not to discuss excessive force. This line of questioning ceased.

The trial court's ruling denied the defendant his right to a fair trial and to an impartial jury by restricting questioning of the prospective jurors about the sole defense in the case. Mosely, 842 So.2d at 280-81. Mosely concluded that "where a juror's attitude about a particular legal doctrine ... is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of the voir dire properly includes questions about and references to that legal doctrine ...." Id. at 281 (quoting Lavado v. State, 469 So.2d 917, 919-20 (Fla. 3d DCA 1985) (Pearson, J., dissenting) (dissent adopted in Lavado v. State, 492 So.2d 1322, 1323 (Fla. 1986) ).

It is improper to curtail questioning on the theory of defense, even where counsel is permitted to inquire generally. Counsel must be permitted to question the prospective jurors about their willingness and ability to accept the defense's theory. Harrison v. State, 172 So.3d 1018, 1022 (Fla. 1st DCA 2015). If defense counsel knew nothing else about the prospective jurors, "the single thing that defense counsel needed to know was whether the prospective jurors could fairly and impartially consider the defense of [excessive use of force]." Lavado v. State, 492 So.2d 1322, 1323 (Fla. 1986).

Reversed and remanded.

      Additionally, we note the state's concession that the trial court erred in concluding that it lacked discretion to withhold adjudication. The trial court had such discretion, State v. Hewitt, 702 So.2d 633, 636 (Fla. 1st DCA 1997), and we reverse and remand the sentences for that reason.


text:
    Frankie DERIZZO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-188
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, for appellee.
    Before SALTER, SCALES, and MILLER, JJ.
   PER CURIAM.

Affirmed. See Franklin v. State, 258 So.3d 1239 (Fla. 2018) ; State v. Michel, 257 So.3d 3 (Fla. 2018).


text:
    S. Patrick DRAY, etc., Appellant, v. Tamar Duffner SHENDELL, etc., et al., Appellees.
    No. 3D18-0723
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    Friedman & Frost, P.L. and Paul D. Friedman and Alexander A. Salinas, Miami, for appellant.
    Shendell & Associates, and Lawrence A. Shendell (Deerfield Beach); The Haralson Law Firm, P.A., and Paul Haralson, Miami, for appellees.
    Before FERNANDEZ, LINDSEY, and MILLER, JJ.
   MILLER, J.

As the undisputed record evidence presented below firmly established that the now-deceased settlor, who sought rescission of an irrevocable trust, was not subject to coercion, fraud, misrepresentation, overreaching, or undue influence in his execution of the trust documents, and the essential elements of unilateral mistake failed, the trial court properly granted summary judgment in favor of appellees. See Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So.2d 311, 312 (Fla. 5th DCA 1985) ("[A] party who voluntarily executes a document ... is bound by its terms in the absence of coercion, duress, fraud in the inducement or some other independent ground justifying rescission."); see also Duncan Props., Inc. v. Key Largo Ocean View, Inc., 360 So.2d 471, 472 (Fla. 3d DCA 1978) ("Generally, in order to sustain an action for rescission, one must allege grounds amounting to fraud, misrepresentation, overreaching or undue influence.") (citing Richard Bertram & Co. v. Barrett, 155 So.2d 409 (Fla. 1st DCA 1963) ); DePrince v. Starboard Cruise Servs., Inc., 271 So.3d 11, 2018 WL 3636849 (Fla. 3d DCA Aug. 1, 2018) (en banc) ("A contract may be set aside on the basis of unilateral mistake of material fact if: (1) the mistake was not the result of an inexcusable lack of due care; (2) denial of release from the contract would be inequitable; and (3) the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable."). Affirmed.


text:
    Suyapa E. LAGOS, Appellant, v. US BANK NATIONAL ASSOCIATION, etc., Appellee.
    No. 3D18-1676
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    Suyapa E. Lagos, in proper person.
    McGuireWoods LLP, and Sara F. Holladay-Tobias, Emily Y. Rottmann, and C.H. Houston, III (Jacksonville), for appellee.
    Before EMAS, C.J., and LINDSEY, and MILLER, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal."); Cudeiro v. Dep't of Revenue ex rel. Fritz, 99 So.3d 520 (Fla. 3d DCA 2011) (citing Starks v. Starks, 423 So.2d 452, 453-54 (Fla. 1st DCA 1982) ("finding that without a transcript of the hearing, the appellate court is unable to ascertain whether the lower court erred; noting that '[t]he appellant retains the burden of overcoming the presumption of correctness attributed to a trial court's final judgment. Appellant's burden includes a demonstration of error from the record , which he must supply' ") ).


text:
    Timothy Nelson BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-189
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019
    Timothy Nelson Butler, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   PER CURIAM.

Affirmed. See Mendenhall v. State, 48 So.3d 740, 742 (Fla. 2010) (holding that under section 775.087, Florida Statutes, "the trial court has discretion ... to impose a mandatory minimum ... even if that mandatory minimum exceeds the statutory maximum.").


text:
    William BERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-246
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   PER CURIAM.

Mr. Berry was convicted of first-degree murder and other non-homicide offenses. He was sentenced to life in prison with the possibly of parole after twenty-five years. When he committed the crimes, he was less than eighteen years of age. Under the authority of State v. Michel, 257 So.3d 3 (Fla. 2018), and Franklin v. State, 258 So.3d 1239 (Fla. 2018), we uphold the trial judge's summary denial of the Appellant's motion for post-conviction relief challenging the constitutionality of his sentence.

Affirmed.


text:
    Alexander L. GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2239
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019
    Alexander L. Green, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Connolly v. State, 172 So.3d 893, 903-04 (Fla. 3d DCA 2015) (holding that "technical defects in a charging document are treated differently than the failure to allege an essential element of the crime. An indictment that wholly omits an essential element of a crime is a fundamental defect that may be raised at any time because the indictment fails to charge a crime when an essential element is omitted. Use or possession of a firearm, however, is not an essential element of second degree murder, but rather, it may serve to allow for a reclassification of the second degree murder from a first degree felony to a life felony or as an enhancement of the sentence imposed") (internal footnote and citation omitted). See also Galindez v. State, 955 So.2d 517 (Fla. 2007) (holding that an Apprendi/ Blakely error is subject to a harmless error analysis); Robinson v. State, 215 So.3d 1262, 1274 (Fla. 1st DCA 2017).

      See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ; Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


text:
    BANK OF AMERICA, N.A., Petitioner, v. Ryan ATKIN, Respondent.
    No. 3D18-1840
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019.
    Liebler, Gonzalez & Portuondo, and Elizabeth A. Henriques, for petitioner.
    Jacobs Legal, PLLC, and Bruce Jacobs, Amida U. Frey, and Anna C. Morales, for respondent.
    Wasson & Associates, Chartered, and Roy D. Wasson ; Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T. Davis, for Bruce Jacobs, Esquire and Jacobs Legal, PLLC.
    Before LOGUE and LINDSEY, JJ., and SUAREZ, Senior Judge.
    ORDER OF REFERRAL
   PER CURIAM.

This court issued an order directing Bruce Jacobs, Esquire, and Jacobs Legal, PLLC, to show cause within ten days why this court should not impose sanctions for violations of the Florida Rules of Appellate Procedure and Rules Regulating the Florida Bar. Bank of Am., N.A. v. Atkin, No. 3D18-1840, --- So.3d ----, ----, 2018 WL 6658364, at *1 (Fla. 3d DCA Dec. 14, 2018). Upon review of the verified response, we refer this matter to the Florida Bar.

Rule 4-8.2(a) of the Rules Regulating the Florida Bar provides in pertinent part:

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge ....

In our prior order to show cause, we found a reasonable basis existed to conclude that Mr. Jacobs and Jacobs Legal, PLLC, violated Rule 4-8.2(a) on September 17, 2018, when they filed Respondent's Response to Petition for Writ of Prohibition in this case containing the following statements recklessly impugning and disparaging the judges of this court and two judges of the circuit court:

• "In Simpson [sic], this Court ... falsified the facts in contradiction to the record."
• "The impartiality of this Court is objectively questioned and it cannot issue a ruling with integrity in this case."
• A named circuit court judge acted with "blatant disregard for the rule of law and the client's constitutional rights" in an unrelated case and was upheld by this court.
• The same circuit court judge has "recently escalated her illegal conduct."
• A different, unnamed circuit court judge changed a favorable ruling because opposing counsel "threw a fundraiser for the new judge who rotated into the division."

Response at 4, 8, 9, 10, 12.

This court also found a reasonable basis exists to conclude that Mr. Jacobs and Jacobs Legal, PLLC, violated this Rule on August 10, 2018, when they filed with this court as Appendix 1 to their Response a copy of a jurisdictional brief in an unrelated case that they had filed in the United States Supreme Court wherein they made the following statements impugning and disparaging the judges of this court and the Florida Supreme Court:

• "The opinion [of this Court] mispresented facts, ignored Florida Supreme Court law, and disregarded evidence showing fraud. The Florida Supreme Court declined jurisdiction to address this factually and intellectually dishonest result."
• "The Third District Misrepresented the Amended Rule 1.540(b) Motion to reach a pre-determined result - foreclosure."
• "[T]he Dishonesty of the Third DCA's opinion."
• "The Florida Supreme Court has repeatedly declined to protect the constitutional rights of foreclosure defendants."
• "[I]n virtually every appeal where the trial judge ruled in favor of undersigned counsel's client, including Simpson, the Third DCA reversed with intellectually and factually dishonest opinions."
• This court "attempt[ed] to cover up, protect, and ignore well-documented fraud on the court in foreclosures. All to ensure a pre-determined result - foreclosure."
• "The Third DCA's Opinion is pretextual and arbitrary."
• "This Court is called on to act because the Florida Supreme Court has taken no action to prevent the Third DCA from improperly ignoring fraudulent conduct in foreclosures."
• "It is objectively reasonable to fear the Third DCA acted to reach a predetermined outcome that favors banks over homeowners - foreclosure. If the Florida Supreme Court will not act, this Court must."

Appendix 1 to Response, at 5, 10, 13, 17, 21, 32, 33, & 43, Simpson v. Bank of New York Mellon, No. 18-187 (Aug. 10, 2018), cert. denied (Oct. 29, 2018).

In his verified response filed on behalf of both respondents, Mr. Jacobs "acknowledges that his commentary referenced in the Order to Show Cause was unprofessional and unwarranted." He admits these statements reflected "inappropriate comments impugning the integrity of the judiciary." He "accepts full responsibility for his inappropriate action." He explains various steps he has taken in his personal and professional life "to prevent any reoccurrence." Frankly, if this were an isolated event, we would be inclined to end this matter.

However, we have previously sanctioned Mr. Jacobs for similar unprofessional statements. Aquasol Condo. Ass'n, Inc. v. HSBC Bank USA, Nat'l Ass'n, No. 3D17-352, --- So.3d ----, ----, 2018 WL 6344710, at *1 (Fla. 3d DCA Dec. 5, 2018) ("[T]his court finds that Mr. Jacobs violated Rule 4-8.2(a), Rules Regulating the Florida Bar, by impugning the qualifications or integrity of the judges of this court and of the trial court."). Previously, while admitting his conduct was unprofessional, "Mr. Jacobs assert[ed] that his conduct in this case was an isolated incident, caused by the merits opinion issued by this panel, and borne of a temporary state of fear and time pressures." Id. at ----, n.4, 2018 WL 6344710, at *1, n.4. Now, while admitting his subsequent conduct was unprofessional, he asserts all such unprofessional conduct stopped once he received the prior order to show cause, which acted as a wake- up call to take steps to address the personal issues causing this conduct.

We acknowledge that the latest incidents occurred before the issuance of the prior order to show cause. But because we are not in a position to ascertain the veracity of this latest explanation and this latest explanation is inconsistent with the previous one, we formally refer this matter to the Florida Bar for investigation.

It is so ordered.