text:
    Shawn AARON, et al., Appellant/Petitioner(s), v. WILMINGTON TRUST NATIONAL ASSN., Appellee/Respondent(s).
    CASE NO.: 2D18-2563
    District Court of Appeal of Florida, Second District.
    March 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Lawrence E. KING, Appellant/Petitioner(s), v. Krisha L. KING (Weiss), Appellee/Respondent(s).
    CASE NO.: 2D19-0376
    District Court of Appeal of Florida, Second District.
    February 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Ashlee JOHN, Appellant/Petitioner(s), v. Lorenso STIFF, Appellee/Respondent(s).
    CASE NO.: 2D18-4922
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    JACARANDA, LLC & a New Mexico, LLC, Appellant/Petitioner(s), v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, et al, Appellee/Respondent(s).
    CASE NO.: 2D18-2369
    District Court of Appeal of Florida, Second District.
    March 06, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Samuel H. SANFORD, Appellant/Petitioner(s), v. Tryinda PRIDE, Appellee/Respondent(s).
    CASE NO.: 2D18-4913
    District Court of Appeal of Florida, Second District.
    February 28, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Charles E. TATE, a/k/a Tate Charles E., Appellant/Petitioner(s), v. WELLS FARGO BANK, N.A., Appellee/Respondent(s).
    CASE NO.: 2D18-0934
    District Court of Appeal of Florida, Second District.
    February 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Melvin Eugene KENNEDY, Appellant/Petitioner(s), v. WELLS FARGO BANK, N.A., et al, Appellee/Respondent(s).
    CASE NO.: 2D18-3794
    District Court of Appeal of Florida, Second District.
    February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Kenneth CROWLEY, Appellant/Petitioner(s), v. Leta HICKS, Appellee/Respondent(s).
    CASE NO.: 2D18-4553
    District Court of Appeal of Florida, Second District.
    March 06, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Thomas F. LAMATRICE, Appellant/Petitioner(s), v. U S BANK, NATIONAL ASSOCIATION, Appellee/Respondent(s).
    CASE NO.: 2D18-2882
    District Court of Appeal of Florida, Second District.
    February 28, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.

Denied.


text:
    Jeffrey Thomas LOGIUDICE, Appellant/Petitioner(s), v. US BANK TRUST, N. A., as Trustee, Appellee/Respondent(s).
    CASE NO.: 2D18-3088
    District Court of Appeal of Florida, Second District.
    February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    BLACK POINT ASSETS, INC., as Trustee, Appellant/Petitioner(s), v. CARRINGTON MORTGAGE SERVICES, LLC, Appellee/Respondent(s).
    CASE NO.: 2D18-2748
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    BLACK POINT ASSETS, INC., as Trustee Under 7304 Belvedere Terrace Land Trust Dated March 1,2013, et al., Appellant/Petitioner(s), v. GREEN TREE SERVICING, LLC, Appellee/Respondent(s).
    CASE NO.: 2D18-3168
    District Court of Appeal of Florida, Second District.
    February 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Zachary Joseph Howard PEREZ, Appellant, v. Nathaly MARTINEZ, etc., Appellee.
    No. 3D18-1913
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    C.M., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-891
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Donald Keith ROLLING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-815
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    MANGO'S TROPICAL CAFÉ, INC., Appellant, v. Raquel SANTANA and Reemployment Assistance Appeals Commission, Appellees.
    No. 3D18-354
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Talise Cherer CHERY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-632
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    ROSE FIELD, LLC, Appellant, v. OLYMPUS INSURANCE COMPANY, Appellee.
    No. 3D18-117
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason PATTERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2656
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Pamela Bruce STUART, Individually and as Trustee of the J. Raymond Stuart Revocable Trust Dated January 2, 1990, as Amended, and the Marital Deduction Trust and the Non-Marital Deduction Trust Created Thereunder, Appellant, v. Catherine S. RYAN and Deborah A. Stuart, as Beneficiaries of the J. Raymond Stuart Revocable Trust Dated January 2, 1990, as Amended, and the Marital Deduction Trust and the Non-Marital Deduction Trust Created Thereunder, and The Tennis Townhouses Condominium Association, Inc., Appellees.
    Nos. 4D18-1904 4D18-2500
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Reagan ULYSSE, Sr., Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT and Alberlean Surnetta Louisa Pollard Ulysse, Appellees.
    No. 4D18-2043
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jurvis M. SPELLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2311
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Erick Jose ARRIETA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-763
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. Javier MATURANA and Madeline Martinez, Appellees.
    No. 4D18-1447
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    SPIH OAKLAND PARK, LLC, Appellant, v. CITY OF OAKLAND PARK, Florida, Appellee.
    No. 4D18-1555
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven M. HAMMOCK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1739
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Vladimir EUGENE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1558
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert Roy HENION, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1926
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert T. COLES, Appellant, v. Michelle Apple COLES, Appellee.
    No. 4D18-1359
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Douglas J. SMYTH III, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2506
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Huderson BONTEMPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1686
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Douglas MACIAS and Lucy Macias, Appellants, v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CSFB HEAT 2006-7, Appellee.
    No. 4D18-1858
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rubin YOUNG, Appellant, v. Dr. Brenda C. SNIPES, Broward County Supervisor of Election's Canvassing Board, and Mark Bogen, Candidate, Appellees.
    No. 4D18-2221
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tavaris Jemario HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2391
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    FLORIDA HOSPITAL MEDICINE SERVICES, LLC, Appellant, v. QUALITY MEDICAL CONSULTANT GROUP, INC., Ragnier Stein, Lazaro Cadavieco, Brian Horvath, and Molina Inpatient Services, Inc., Appellees.
    No. 4D18-2169
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joseph HICKEY, Appellant, v. Kenneth JERKINS, Appellee.
    No. 4D18-1404
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John Robert FORGETTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1940
    District Court of Appeal of Florida, Fourth District.
    [January 3, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ossie THOMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3756
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael PRENDERGAST, as Sheriff of Citrus County, Florida, Appellant, v. Randy Hubert CLESTER, Appellee.
    Case No. 5D18-1751
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 29, 2019 Rehearing Denied March 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Terry Michael Gaitor WALKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-601
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Maurice Alexander JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-950
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2018 Rehearing Denied February 28, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Angel RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3057
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tyrone MURRAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3887
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dale E. HILL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3783
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony V. BRADSHAW, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3669
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    L.B.F., Father, Appellant, v. A.F., Mother and K.F., Appellees.
    Case No. 5D18-3414
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 28, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sarah POWERS-BARNHARD, Appellant, v. AMATEUR ATHLETIC UNION OF THE UNITED STATES, INC., Appellee.
    Case No. 5D18-650
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carlton SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3241
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jonathan STARKS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3121
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Matthew J. TULENKO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1264
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William KEMPTON, Appellant, v. Lawrence MCCOMB, Gregory Davis and Marianne Carter, Appellees.
    Case No. 5D18-419
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony GRANT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2248
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019 Rehearing Denied February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Forst, J.

text:
    Mark B. SACKS and Barbara Sacks, Appellants, v. The BANK OF NEW YORK MELLON fka the Bank of New York, as Trustee for the Certificate Holders of the CWMBS, Inc., Mortgage Pass-Through Trust 2005-HYB7 Mortgage Pass-Through Certificates, Series 2005-HYB7, Appellee.
    No. 4D17-2122
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for appellants.
    Alexis Fields of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort Lauderdale, for appellee.
    ON MOTIONS FOR CLARIFICATION, REHEARING, REHEARING EN BANC AND CERTIFICATION OF CONFLICT OR QUESTION OF GREAT PUBLIC IMPORTANCE
   Forst, J.

We deny Appellants' motion for clarification and rehearing en banc and Appellee's motion for rehearing, rehearing en banc, and certification of conflict or question of great public importance. We nonetheless withdraw our previously issued opinion and substitute the following.

Appellants Mark and Barbara Sacks appeal a final summary judgment of foreclosure in favor of Appellee, The Bank of New York Mellon ("the Bank"). Appellants raise several issues on appeal. We affirm without comment with respect to all issues with one exception. The trial court erred in admitting the payment history submitted by the Bank to establish the amount owed under the note. Accordingly, we reverse the judgment and remand for an evidentiary hearing on that issue. We otherwise affirm on the remaining issues raised.

Background

Appellants defaulted on their mortgage, and the Bank filed a foreclosure complaint and subsequently moved for summary judgment. In support of its motion, the Bank filed a tabulation of Appellants' payment history under the terms of the note and mortgage and an accompanying affidavit seeking to establish the business records predicate for admission. The affiant was a document coordinator of the Bank's servicer, Bayview Loan Servicing ("BLS"). The payment history attached to the affidavit was generated by BLS and it incorporated tabulations by Bank of America ("BoA"), a prior servicer of the loan. The entirety of the affidavit's discussion of BLS's business records was as follows:

The information in this affidavit is taken from BLS's business records. I have personal knowledge of BLS's procedures for creating these records. They are: (a) made at or near the time of the occurrence of the matters recorded by persons with personal knowledge of the information in the business record, or from information transmitted by persons with personal knowledge; (b) kept in the course of BLS's regularly conducted business activities; and (c) it is the regular practice of BLS to make such records.

At the summary judgment hearing, with respect to the BLS affidavit, Appellants argued the absence of any mention of "[BoA's] records, how BLS got a hold of them, and how they ... brought those records in with a sufficient boarding process." The trial court nonetheless granted the Bank's motion for summary judgment and entered a final judgment of foreclosure against Appellants.

Analysis

"The standard of review for evidentiary rulings is abuse of discretion." Holt v. Calchas, LLC , 155 So.3d 499, 503 (Fla. 4th DCA DCA 2015). However, "whether evidence is hearsay and whether evidence fits within an exception to the hearsay rule are questions of law reviewed de novo." Washburn v. Washburn , 211 So.3d 87, 90 (Fla. 4th DCA 2017). "[G]enerally the courts hold the moving party for summary judgment or decree to a strict standard and the papers supporting [the movant's] position are closely scrutinized ...." OneWest Bank, FSB v. Jasinski , 173 So.3d 1009, 1014 (Fla. 2d DCA 2015) (quoting Gonzalez v. Chase Home Fin. LLC , 37 So.3d 955, 958 (Fla. 3d DCA 2010) ).

"All affidavits in support of a motion for summary judgment 'shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.' " Lindsey v. Cadence Bank , N.A. , 135 So.3d 1164, 1167 (Fla. 1st DCA 2014) (quoting Fla. R. Civ. P. 1.510(e) ). "The opposing party is not required to file a counter-affidavit to defeat the motion ...." Id.

Here, the Bank sought to meet the business records exception to hearsay for its records, including the payment history, via affidavit. The affidavit needed to demonstrate:

(1) that the record was made at or near the time of the event; (2) that it was made by or from information transmitted by a person with knowledge; (3) that it was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Bank of N.Y. v. Calloway , 157 So.3d 1064, 1069 (Fla. 4th DCA 2015) (citing Yisrael v. State , 993 So.2d 952, 956 (Fla. 2008) ).

Because the servicer's (BLS) records incorporated a payment history generated by a predecessor servicer (BoA), the additional requirements of demonstrating reliance and trustworthiness attached. This Court's opinion in Calloway explains:

Where a business takes custody of another business's records and integrates them within its own records, the acquired records are treated as having been "made" by the successor business, such that both records constitute the successor business's singular "business record." United States v. Adefehinti , 510 F.3d 319, 326 (D.C. Cir. 2007), as amended (Feb. 13, 2008). However, since records crafted by a separate business lack the hallmarks of reliability inherent in a business's self-generated records, proponents must demonstrate not only that "the other requirements of [the business records exception rule] are met" but also that the successor business relies upon those records and "the circumstances indicate the records are trustworthy." United States v. Childs , 5 F.3d 1328, 1333 (9th Cir. 1993).
....
This principle is codified within section 90.803(6) itself, which provides trial courts the ability to exclude documents otherwise fitting the business records exception where "the sources of information or other circumstances show lack of trustworthiness." § 90.803(6)(a), Fla. Stat. (2008).

157 So.3d at 1071 (alteration in original) (emphasis added) (footnote omitted). Trustworthiness can be established by either (1) "providing evidence of a business relationship or contractual obligation between the parties that ensures a substantial incentive for accuracy," or (2) "the successor business itself may establish trustworthiness by independently confirming the accuracy of the third-party's business records upon receipt." Id. at 1072.

In Calloway , we found the bank's witness confirmed the trustworthiness of the relied-upon third-party business records by testifying that the bank reviewed the payment history for accuracy before inputting the payment information into its own system. Id. We additionally noted that, "even had [the witness] not so testified, the circumstances of the loan transfer itself would have been sufficient to establish trustworthiness given the business relationships and common practices inherent among lending institutions acquiring and selling loans." Id.

Somewhat similarly, in Nationstar Mortg., LLC v. Berdecia , 169 So.3d 209 (Fla. 5th DCA 2015), the court found a witness's entry of records created by a prior servicer proper "so long as all the requirements of the business records exception are satisfied, the witness can testify that the successor business relies upon those records, and the circumstances indicate the records are trustworthy." Id. at 216 ; see also Le v. U.S. Bank , 165 So.3d 776, 778 (Fla. 5th DCA 2015) (holding that a witness properly laid the foundation for a prior servicer's records because the witness "testified that she was familiar with industry standards in recording and maintaining the records and that the records received from the prior servicer were tested for accuracy and compliance with industry standards via a boarding process before the information was input").

On the other hand, the Fifth District reversed a judgment of foreclosure in Hidden Ridge Condominium Homeowners Ass'n, Inc. v. Onewest Bank, N.A. , 183 So.3d 1266 (Fla. 5th DCA 2016), in part due to the failure of an affidavit filed on behalf of the bank to address whether the foreclosing bank verified a predecessor's payment history for accuracy and compliance with industry standards. Id. at 1270. The affidavit, in fact, made no mention of the predecessor. Id. at 1268 ; see also Channell v. Deutsche Bank Nat'l Tr. Co. , 173 So.3d 1017, 1020 (Fla. 2d DCA 2015) (remanding for establishment of the amount due because there was no testimony on whether a predecessor's loan documents had been verified for accuracy nor whether the witness was familiar with the predecessor's record-keeping system).

Here, the relevant portion of the Bank representative's affidavit merely recited the four elements of the business records exception, as applied to BLS's own records. Just as in Hidden Ridge Condominium , the affidavit said nothing about incorporating the predecessor servicer's payment records or, indeed, anything about the predecessor at all. Without any explanation as to how BoA's payment records were verified for accuracy or how the Bank acquired them, the trustworthiness requirement was not met. Thus, we must conclude "[t]he record fails to demonstrate that an adequate foundational predicate was established, and the loan ... records relied on to establish the outstanding debt constituted inadmissible hearsay." Channell , 173 So.3d at 1020 (citing §§ 90.802, 90.803(6), Fla. Stat. (2014) ). Without the payment history, there was insufficient evidence to support the amount owed under the loan, and summary judgment was granted in error on this point.

In their brief, Appellants also challenged the trial court's rulings that the Bank had standing, that their affirmative defenses had been refuted, and that there was sufficient evidence BLS was the servicer of the loan. As to these issues, we conclude that no error occurred. Thus, these rulings are conclusively established for the purpose of further proceedings.

Conclusion

The Bank failed to establish a foundation for entry of its business records concerning the amount due and owing. Thus, "there is insufficient evidence to support the amount due and owing under the loan," and "we must reverse and remand for further proceedings to properly establish the amount due and owing." Channell , 173 So.3d at 1020.

Affirmed in Part, Reversed and Remanded in Part .

Warner and May, JJ., concur.


author: May, J.

text:
    JANOURA PARTNERS, LLC, a Florida Limited Liability Company, Appellant, v. PALM BEACH IMPORTS, INC., a Florida corporation, Appellee.
    No. 4D17-2582
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Wayne Kaplan of Wayne Kaplan, P.A., Boca Raton and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    Brian B. Joslyn and Ronald E. Crescenzo of Ciklin Lubitz, West Palm Beach, for appellee.
   May, J.

To grant an injunction or not was the question to be decided by the trial court. The trial court granted the injunction enforcing an easement between two commercial properties, a shopping center and an auto dealership. The shopping center now appeals. It argues the trial court erred in granting a permanent injunction in favor of the auto dealership. We disagree and affirm.

This dispute involves two property owners. On one site is an auto dealership. On the other is a strip mall shopping center. The prior owners of both properties entered into an ingress/egress easement in 1989 when the auto dealership was being constructed. The easement is contained in a recorded cross access agreement ("CAA"), which allows for vehicular and pedestrian traffic between the two parcels.

The CAA provided:

1. [The auto dealership] hereby grants to [the shopping center], its successors, assigns, licensees, and invitees a non-exclusive vehicular and pedestrian ingress and egress easement over, across, and upon those portions of the auto dealership property described in Exhibit "B" attached hereto, from time to time reasonably designated for vehicular pedestrian use by [the auto dealership], their successors and assigns.
2. [The shopping center] hereby grants to [auto dealership], his successors, assigns, licensees, and invitees a non-exclusive vehicular and pedestrian easement over, across, and upon those portions of the [shopping center], described in Exhibit "A" attached hereto, from time to time reasonably designated for vehicular and pedestrian use by [the shopping center].

Attached to the 1989 CAA were detailed property descriptions of both properties. The CAA also contained several provisions that obligated the auto dealership to conduct maintenance and keep up landscaping at its expense. There were no similar conditions for the shopping center.

This was the first auto dealership approved by the Town of Jupiter, and it was subject to certain conditions. One condition prohibited the loading and unloading of automobile transports on Indiantown Road. That activity had to take place on the auto dealership or an adjacent property.

In 1993, the Town of Jupiter entered into a developer's agreement with the then owner of the auto dealership. This agreement provided that the CAA would be assignable, but also stated that "[l]oading and unloading of vehicle transport trucks, all goods, materials, etc. shall occur entirely within the confines of the vehicle dealership."

The current owner acquired the auto dealership property in 2011. At that time, the auto dealership typically had two auto transports a week, each of which lasted approximately 30 minutes. A year later, the auto dealership entered into an agreement with a successor owner of the shopping center to amend the CAA for the purpose of installing a gate to secure the dealership after-hours. Attached to that "Amendment to Cross Access Agreement" were the same descriptions of the properties from the CAA and a site plan of the shopping center.

When the auto dealership later sought to make modifications to its property, the Town of Jupiter required it to obtain a letter from the shopping center owner stating that the auto dealership was permitted to load and unload automobile transports on the shopping center property. The shopping center agreed to write the letter confirming this arrangement in exchange for $500 a month to defray costs associated with the wear-and-tear on its property. The agreement provided that the arrangement would continue on a month-to-month basis and could be modified at any time or terminated by either party with 30 days' written notice. This May 2014 letter agreement was not recorded, but the shopping center provided it to the Town of Jupiter.

In December of 2014, yet another owner acquired the shopping center property. The loading and unloading of vehicles on the shopping center property continued uncontested until April of 2015, when the shopping center's new owner terminated the May 2014 agreement by giving the auto dealership 30 days' written notice. The shopping center notified the Town of Jupiter of the change, stating it "was necessary due to ongoing access issues and property damage we have experienced since our purchase of the center." It further explained that it believed "this agreement was required by the Town of Jupiter in order to allow the dealership to operate" so it "felt it was our obligation to let you know that the agreement was being terminated."

The auto dealership's attorneys wrote the Town of Jupiter, stating that the shopping center was attempting to terminate the rights granted by the CAA and argued that the agreement could not be unilaterally cancelled. Following the letter to the auto dealership, the shopping center asked for $2,500 per month to continue the arrangement, pursuant to a new agreement. When negotiations failed, the auto dealership filed a complaint against the shopping center seeking declaratory and injunctive relief.

The auto dealership moved for a temporary injunction to prohibit the shopping center from interfering with its loading and unloading pursuant to the CAA. The shopping center moved to dismiss and filed a counterclaim and answer. It argued the auto dealership was not entitled to relief because the easement unambiguously does not allow for loading and unloading, and the shopping center had permissibly terminated the arrangement according to the May 2014 agreement. The shopping center's counterclaim sought injunctive relief to prohibit the auto dealership from loading and unloading vehicles on its property and included a count for trespass.

The trial court that entered the preliminary injunction concluded the easements were ambiguous due to the attachment of the legal description of the entire shopping center property, and looked to the circumstances surrounding the creation of the easement. The trial court granted the auto dealership's motion for temporary injunction and denied the shopping center's motion for temporary injunction. We affirmed. Janoura Partners, LLC v. Palm Beach Imports, Inc. , 212 So.3d 372 (Fla. 4th DCA 2016) (table).

The parties then tried the case. The successor judge found the attached site plan created an ambiguity. It agreed with the analysis used by the predecessor judge. In granting the auto dealership's permanent injunction, the court stated:

When construing the scope of an easement, the Court must attempt to fulfill the parties' intentions, and thus the Court may consider the circumstances surrounding the creation of the easement. Notwithstanding the testimony of several witnesses that the Town of Jupiter has for years had a policy regarding Cross Access Agreements between adjacent commercial properties along Indiantown Road, the evidence also shows that ... [the auto] dealership with no space or room to load and unload auto transports ... requested approval of a cross access driveway and entered into the CAA with the owner of [the shopping center].
The Court finds compelling the [auto dealership's] argument that (a) there was no need for a pedestrian cross access point because there was a sidewalk running in front of both properties; and (b) no real need for vehicular cross access because both properties had curb cuts and driveways more than capable of providing access between the properties; and (c) that the Court should examine all the circumstances surrounding negotiation and execution of the CAA in 1989.
....
When the Court looks to why [the auto dealership] requested the CAA and what [it] intended to acquire, and then factors in the uncontradicted testimony that, from the Dealership's earliest days, it was loading and unloading auto transports on [the shopping center property], competent, substantial evidence exists in this record to support [the auto dealership's] position that the CAA was intended to permit such activities.

The shopping center argues the permanent injunction should be reversed because the language in the CAA was unambiguous. It claims "ingress and egress" are well-defined terms that preclude the auto dealership from parking to load and unload cars, and the auto dealership doing so exceeds the scope of the granted easement. The shopping center argues the court erred in admitting extrinsic evidence to determine the scope of ingress/egress and the purpose of the CAA. It contends the latent ambiguity argument claimed by the auto dealership was not properly preserved. And, it suggests the permanent injunction creates a grave injustice by allowing the auto dealership to use the shopping center's property without compensation.

The auto dealership responds that there is a latent ambiguity, and the court correctly admitted evidence to determine the scope and purpose of the easement. It asks us to affirm the permanent injunction.

"To the extent it rests on factual matters, an order imposing a permanent injunction lies within the sound discretion of the trial court and will be affirmed absent a showing of abuse of discretion." Operation Rescue v. Women's Health Ctr., Inc. , 626 So.2d 664, 670 (Fla. 1993). However, to the extent that the injunction rests on legal grounds, the order is subject to de novo review. Id.

We have de novo review of whether a contract is ambiguous. Hastie v. Ekholm , 199 So.3d 461, 464 (Fla. 4th DCA 2016). If ambiguous, "we review the trial court's interpretation of the [contract] for competent substantial evidence." Id.

The shopping center and auto dealership agree the dispute centers upon the interpretation of the CAA's easement. The issue is whether the court was permitted to look to the intent behind the contract formation; if the terms are unambiguous, the court must give effect to the terms as stated, but if the terms are ambiguous, the court may consider extrinsic evidence to determine the intent of the parties. See Sandlake Residences, LLC v. Ogilvie , 951 So.2d 117, 120 (Fla. 5th DCA 2007).

Within the realm of ambiguity, there are rules. "Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways." Prime Homes, Inc. v. Pine Lake, LLC , 84 So.3d 1147, 1151-52 (Fla. 4th DCA 2012). Put differently:

It is [latent], where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings. But a patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure, or insensible language used.

Ace Elec. Supply Co. v. Terra Nova Elec., Inc. , 288 So.2d 544, 547 (Fla. 1st DCA 1973).

Here, ingress/egress are clear and intelligible terms, but the addition of the legal description of the properties suggests a latent ambiguity making it necessary to consider why the agreement was made in the first place. This is precisely what the trial court found. There is competent substantial evidence to support the trial court's finding.

As the auto dealership argues, the attachment of the legal description of the entirety of the shopping center property to the CAA created a latent ambiguity because the metes and bounds description detailed the entire property, and was not limited to the particular area of ingress and egress between the two properties suggested in the CAA. See Branscombe v. Jupiter Harbour, LLC , 76 So.3d 942, 947 (Fla. 4th DCA 2011) (holding "the agreement with its attached parking lot plan created an ambiguity allowing the trial court to consider parol evidence.").

Once the latent ambiguity was found to exist, the trial court properly considered extrinsic evidence to give meaning to the CAA and the parties' rights under it. Considering that evidence, the trial court concluded the CAA was a valid easement. It further concluded that the intention of the CAA was the loading and unloading of auto transports on the shopping center property. And, there was no evidence that the use of the property "interfered in any way with anyone or any aspect of" the shopping center, as the trial court correctly noted.

We therefore affirm.

Affirmed.

Levine and Klingensmith, JJ., concur.

      The auto dealership and shopping center are used to describe the two parties even though the properties went through multiple ownerships over the course of the history of the CAA. The parties are the current owners of the properties.

      We express no opinion on whether the shopping center is entitled to compensation for the imposition of the permanent injunction and a permanent easement on the shopping center's property.


author: Warner, J.

text:
    Eddie Isaac BEAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2419
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges his sentence imposed after his plea to multiple charges. He raises three issues. First, he contends that the trial court erred in sentencing him based upon an incorrect scoresheet that included points for "slight victim injury" where there was insufficient evidence of such injury. Based upon the evidence and entire circumstances of the case, we conclude that the inclusion of these points was not error. Second, he argues that a jury should have made the determination of whether "slight victim injury" occurred, based upon Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which requires a jury to make any factual finding increasing the mandatory minimum sentence for a defendant. In this case, however, no mandatory minimum is involved. Therefore, Alleyne does not apply. Third, he challenges the costs imposed, and the State concedes that the costs judgment is not supported by the record. We therefore affirm as to the sentence but reverse as to the costs and remand for a new hearing.

In 2015, appellant was charged by information with various crimes related to a bank robbery in Palm Beach County. Appellant forced six bank tellers into the bank's vault room at gunpoint, hit each of the tellers over the head with a gun, made them strip their clothes, and sexually assaulted one of the tellers. When appellant attempted to flee the scene, he shot at a law enforcement officer. Appellant was injured and was found with over $60,000 in cash next to him. The State charged him with fourteen counts, including: attempted first degree murder with a firearm of a LEO; sexual battery; five counts of kidnapping with a firearm; six counts of aggravated battery with a firearm; and aggravated assault with a firearm. The six counts of aggravated battery with a firearm relate to the six victims that appellant intentionally struck during the bank robbery.

Appellant pled guilty to all of the charges. Following the plea hearing, appellant moved for a downward departure sentence, arguing that his offense was committed in an unsophisticated manner and was an isolated incident for which he had shown remorse. He admitted that he hit "several" employees with a firearm. Appellant claimed that he pled guilty to the charges "to take responsibility for his actions and not place more emotional trauma on the tellers by forcing them to testify before a jury."

At the sentencing hearing, the prosecutor explained that the various victims would not be giving input as to a sentence because they had been terrified by the appellant. Defense counsel offered witnesses in support of the motion for downward departure, but the State objected to any departure. It noted the sadistic nature of the robbery, arguing that appellant was not entitled to a downward departure because he denied the acts related to the sexual battery. The State stressed how appellant shot at a LEO, pistol-whipped "many" of the bank employees, and forced the women to strip. It asked for the court to impose the maximum sentences for the crimes. The court declined to downwardly depart, finding that the crimes were aggravated and involved physical and sexual violence. Appellant's scoresheet showed 1,132.80 total sentencing points, with a lowest permissible sentence of 828.60 months. His maximum possible sentence was life in prison.

The court sentenced appellant to concurrent sentences of 827.25 months for the counts of attempted murder, sexual battery, and kidnapping. It imposed concurrent fifteen-year sentences for the six charges of aggravated battery with a firearm, as well as a five-year sentence for the charge of aggravated assault with a firearm. The attempted murder conviction carried a minimum mandatory sentence of twenty years, and the kidnapping and aggravated battery charges all included a ten-year mandatory minimum sentence for use of the firearm. The court also entered an order on costs to be imposed on all cases, as appellant was also sentenced for a related case involving grand theft. These included $3,080 and $4,146 for criminal domestic violence and rape crisis costs.

Appellant timely appealed his sentences in the underlying case. Prior to filing his initial brief, appellant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error. Appellant raised two issues regarding scoresheet errors and the costs imposed by the court. First, appellant noted that his sentencing scoresheet shows 1,132.80 total points, including twenty-four points for slight victim injury, presumably for the six counts of aggravated battery with a firearm ("4 x 6 = 24"). Appellant contended that inclusion of sixteen of those points was error because the record showed evidence of physical injury for only two of the victims. Because the victim injury points raised his minimum sentence, he was entitled to resentencing. Second, appellant asserted that in the order assessing charges, costs, and fines, various line items were lump sums, and the court never indicated upon what statutory authority it relied to impose the costs.

The court did not rule on appellant's rule 3.800(b)(2) motion, and thus, it was deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B).

Appellant then filed a second rule 3.800(b)(2) motion, arguing that the court erred by increasing his sentence based on the victim injury points. He contended that when a court relies on a fact that increases a defendant's sentence, the fact must either be submitted to a jury or admitted by the defendant under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The court denied appellant's motion, agreeing with the State that appellant consented to judicial factfinding when he pled to all of the charges. It concluded that there was ample factual support for the twenty-four victim injury points, including testimony at the sentencing hearing. After the denial, appellant filed his brief.

Florida Rule of Criminal Procedure 3.704(d)(9) states that a court scores for "victim injury" when there is "physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing." Points for victim injury "must be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims" for all offenses for which the defendant has been convicted. Id. ; see Fla. R. Crim. P. 3.703(d)(9). Sections 921.0021(7) and 921.0024, Florida Statutes, provide for different amounts of injury points depending on whether the victim's injury is severe, moderate, or slight. See § 921.0021(7)(a), Fla. Stat. (" 'Victim Injury' means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense."); see § 921.0024, Fla. Stat. (allowing for the addition of victim injury points to a defendant's scoresheet under the CPC).

A trial court's assessment of victim injury points is reviewed for an abuse of discretion. Poole v. State , 753 So.2d 698, 698 (Fla. 4th DCA 2000). If there is competent substantial evidence to support the findings, the court's assessment of victim injury points will be upheld. See Hall v. State , 598 So.2d 230, 231 (Fla. 2d DCA 1992).

In this case, the parties never addressed the specific issue of the scoring of the injury points at the sentencing hearing. However, in the plea agreement, appellant acknowledged his minimum sentence based upon his score, which included the slight injury points. Furthermore, without objection, the prosecutor informed the court that the six tellers were "pistol-whipped" or beaten with a gun. This was confirmed by all of the victims' statements and admitted by the appellant in his motion for downward departure. Also, the record shows that three of the victims were transported to the hospital for attention to their injuries. This is not like cases in which a victim was kicked but denied injury. See, e.g. , Mincey v. State , 468 So.2d 473 (Fla. 4th DCA 1985) (finding defendant was entitled to recomputation of scoresheet regarding points for slight victim injury where defendant kicked police officers, but they testified that they were not injured). Here, there was no denial of injury. Further, the appellant specifically stated that part of his reason for pleading guilty was to spare the victims from testifying and to not further traumatize them. He can hardly complain that there is insufficient evidence of slight injury to the victims when he affirmatively expressed his intent not to require them to testify. Given the fact that all of the victims were beaten with a gun, the trial court was within its discretion in concluding that at least slight injury occurred.

Alternatively, appellant contends that the court violated his Sixth Amendment rights by assessing points for victim injury without submitting that fact to the jury for determination, relying on Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In Alleyne , the Supreme Court held that any fact which increases a defendant's mandatory minimum sentence must be submitted to a jury and found beyond a reasonable doubt. Id. at 2158. Alleyne does not apply to this case because it does not involve a fact which increased a mandatory minimum sentence. The scoring of victim injury points establishes the lowest permissible sentence pursuant to the Criminal Punishment Code, but it is not a fact which increases a mandatory minimum sentence. See Williams v. State , 143 So.3d 423 (Fla. 1st DCA 2014). As appellant pled guilty and accepted the lowest permissible sentence in his plea agreement, calculated using the victim injury points, he accepted the judicial factfinding involved in his sentence. See Blakely v. Washington , 542 U.S. 296, 310, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ("When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.").

Finally, the State concedes that the costs imposed of $3,080.00 (for "Criminal Domestic Violence/Rape Crisis Costs CT/MM/CF") and $4,146.00 (for "Criminal Domestic/Rape/Child Adv Costs/FDLE CF") must be reversed and remanded to determine on what statutory authority the costs were based. See Keel v. State , 134 So.3d 1005, 1007 (Fla. 1st DCA 2012) ("A trial court errs when it fails to delineate its statutory authority for each discretionary fine or cost imposition, as it denies the defendant the right to be heard."). We thus remand for further proceedings for the trial court to correct the cost judgment by providing a breakdown of the costs and their statutory authority.

Affirmed in part; reversed in part and remanded for proceedings consistent with this opinion.

Damoorgian and Kuntz, JJ., concur.

      The scoresheet in the record shows an LPS of 828.60, but at sentencing both the court and counsel referred to the LPS as 827.25 months. That is the sentence which was imposed. There appears no explanation in the record for the difference.


author: Levine, J.

text:
    John HAGGIN, Appellant, v. ALLSTATE INVESTMENTS, INC., a Florida Corporation, and Ann Z. King, Appellees.
    No. 4D18-568
    District Court of Appeal of Florida, Fourth District.
    [January 16, 2019]
    Chris Alan Draper of Greenspoon Marder, LLP, West Palm Beach, for appellant.
    Steven M. Selz of Selz & Muvdi Selz, P.A., Jupiter, for appellee Allstate Investments, Inc.
   Levine, J.

In 1998, appellant signed a lease guaranty for a 1,400 square foot space in a shopping center for monthly rent of $1,174. Over time, the space for the lease between the landlord and tenant increased to 2,720 square feet with monthly rent of $5,428. In 2012, the landlord sued the tenant and appellant, as guarantor. The landlord claims that the lease signed by appellant in 1998 included a "continuing guaranty." Furthermore, the landlord relies on appellant's own deposition testimony to support the claim that the guaranty was valid. Appellant claims that the guaranty applied only to the term of the lease and a single option to renew for three years.

We find that the plain language of the lease governs. The guaranty refers to the lease, which has a term of three years with "an option to renew this Lease for one (1) additional three (3) year term." The guaranty was limited to the term of the lease and its solitary three-year option to renew. Thus, the guaranty was not a continuing guaranty. We therefore reverse the trial court's granting of summary judgment for the landlord and find for appellant.

In 1998, the tenant entered into an agreement with the landlord for a three-year term. An addendum executed the same day as the lease stated:

Landlord grants to Tenant an option to renew this Lease for one (1) additional three (3) year term subject to the following:
....
(e) All other terms and conditions of this Lease shall remain unchanged with the exception of monthly Base Rent which shall be increased during the renewal term of each anniversary of the Commencement Date ....

Appellant then signed a lease guaranty to the tenant's lease with the landlord. Appellant signed the guaranty and "agree[d] that this guarantee shall remain for the renewal, modification, extension or waiver of this Lease." Through the years, there were several modifications and amendments to the original lease. In 1999, a modification increased the space rented and increased the rent. In 2001, an amendment extended the option to renew for five years ending in 2006 and increased the amount of rent. In 2006, another amendment extended the option to renew for another three years ending in 2009 and increased the rent. Finally, an amendment in 2008 extended the option to renew until 2014. The 2008 amendment also increased the rent again, topping $5,428 per month in the first year. Appellant did not sign any of these modifications.

In 2012, the landlord sued the tenant and appellant, as guarantor, due to the tenant's failure to pay rent. Appellant and the landlord both filed motions for summary judgment. The landlord argued that the language of the guaranty contemplated modifications, renewals, and extensions of the lease. Further, the landlord relied on appellant's deposition testimony. At one point in his deposition, appellant testified that he thought he signed the guaranty for a "three year lease." Later, when asked if the 2006 modification was covered by the guaranty, appellant said, "It looks like it is covered by the guaranty, sir." The landlord filed an affidavit stating in part that he would not have gone forward with the lease without a continuing guaranty. Appellant also filed an affidavit stating that he was not informed of the lease's modifications.

The trial court granted summary judgment in favor of the landlord. The trial court found that the "language of the guarantee is reasonably susceptible to differing interpretations and is therefore ambiguous." The trial court relied on appellant's deposition transcript as well as the affidavits from appellant and the landlord to conclude that the guaranty was a continuing guaranty. As a result, the trial court entered a judgment in favor of the landlord for $291,802. This appeal follows.

This court reviews an order granting summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). Further, we also review whether a contract is ambiguous as being a question of law. Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., Inc. , 981 So.2d 654, 655 (Fla. 4th DCA 2008).

We start our review by looking at the plain language of the contract. "An agreement is ambiguous if as a whole or by its terms and conditions it can reasonably be interpreted in more than one way." Nationstar Mortg. Co. v. Levine , 216 So.3d 711, 715 (Fla. 4th DCA 2017). As a general rule, only if the contract is ambiguous will the parties' intent become "a question of fact for the fact-finder, precluding summary judgment." Life Care Ponte Vedra, Inc. v. H.K. Wu , 162 So.3d 188, 191-92 (Fla. 5th DCA 2015). However, if the agreement is unambiguous, then the plain language of the contract governs and there is no need for parol evidence of the parties' intent. See Vocelle & Berg, L.L.P. v. IMG Citrus, Inc. , 125 So.3d 843, 844-45 (Fla. 4th DCA 2013).

"Under Florida law, a guaranty for a lease can be continuing, but it must expressly state that it is intended to cover future transactions for the guarantor to be liable for extensions and renewals." Sheth v. C.C. Altamonte Joint Venture , 976 So.2d 85, 87 (Fla. 5th DCA 2008). A guaranty is continuing

if it contemplates a future course of dealing during an indefinite period, or if it is intended to cover a series of transactions or succession of credits, or if its purpose is to give to the principal-debtor a standing credit to be used by it from time to time. Thus, a continuing guaranty covers all transactions, including those arising in the future, which are within the description of contemplation of the agreement.

Fid. Nat'l Bank of S. Miami v. Melo , 366 So.2d 1218, 1221 (Fla. 3d DCA 1979).

Does the plain language of the agreement include a continuing guaranty, or does the agreement demonstrate a guaranty applied only to a term-of-years lease with a single, three-year renewal? We conclude that the lease, and the guaranty signed by appellant, was limited to the original three-year term with "an option to renew this lease for one (1) additional three (3) year term." Thus, appellant's liability as guarantor was restricted to the clear limits on the option to renew as laid out in the agreement and its addenda. Since the language of limitation on options to renew is clear and unambiguous, then the guaranty could not be construed as being a continuing guaranty.

The "renewal, modification, extension or waiver" language in the guaranty does not change this result. Reading the guaranty in pari materia with the lease does not alter the fact that the lease applied to a three-year term with a single, three-year renewal. Any "renewal, modification, extension or waiver" would be limited by the parameters of the term of the lease and its option to renew. Because the guaranty referenced this particular lease, the guaranty was limited by the terms of the original lease.

Further, the guaranty did not meet the definition of a continuing guaranty because it did not "expressly state that it is intended to cover future transactions." See Sheth , 976 So.2d at 87. Nor did the guaranty "contemplate[ ] a future course of dealing during an indefinite period, or ... cover a series of transactions"; rather, the guaranty operated for the finite period of time delineated in the original lease. See Melo , 366 So.2d at 1221.

Given the clear and unambiguous language of the lease and addenda, there was no need to consider parol evidence as to the parties' intent. Therefore, the trial court erred in considering appellant's deposition and the parties' affidavits to the extent they added anything to the analysis.

Even if the lease were ambiguous-which it is not-we still would rest on the fact that the original lease and addenda, including the option to renew and guaranty, were drafted by the landlord. "[A]n agreement of guaranty is construed against the party who prepared or presented same." Miami Nat'l Bank v. Fink , 174 So.2d 38, 40 (Fla. 3d DCA 1965). Because the landlord drafted the documents, they must be construed against the landlord. This means that instead of construing the guaranty as a continuing guaranty, we construe it as an agreement limited to the original term in the lease and the solitary three-year term of renewal.

For all of these reasons, we reverse the summary judgment entered in favor of the landlord and remand with instructions to enter judgment in favor of appellant.

Reversed and remanded with instructions .

Gross and Ciklin, JJ., concur.


author: Per Curiam. Forst, J., concurring in part and dissenting in part.

text:
    Jose Luis GARCIA SOLAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1714
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Jose Luis Garcia Solar, Okeechobee, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed .

Gerber, C.J., and Taylor, J., concur.

Forst, J., concurs in part and dissents in part with an opinion.

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

I respectfully dissent in part. Appellant was not afforded an evidentiary hearing on any of the claims raised in his Florida Rule of Criminal Procedure 3.850 motion alleging ineffective assistance of trial counsel. I agree with the majority in finding no error in the trial court summarily denying six of the seven claims. However, I would remand for an evidentiary hearing with respect to Appellant's contention that counsel's failure to move to exclude incriminating evidence of items found in the vehicle in which Appellant was stopped constituted reversible ineffective assistance of counsel. Appellant "stated a legally sufficient claim for relief, and the record before this court does not conclusively refute the claim." Harris v. State , 74 So.3d 567, 568 (Fla. 4th DCA 2010).


author: Per Curiam.

text:
    Jarrod Wayne KLINGENSMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1736
    District Court of Appeal of Florida, Fourth District.
    [January 30, 2019]
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See P.J.A. v. State , 152 So.3d 805 (Fla. 4th DCA 2014).

Gross, May and Damoorgian, JJ., concur.


author: Ciklin, J.

text:
    David RINCON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3830
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

After a probation revocation hearing, the trial court found that the appellant violated his probation by using cocaine and by committing three new offenses: theft, dealing in stolen property, and providing false verification of ownership to a secondhand dealer. The appellant raises multiple issues on appeal. We agree with the appellant that the trial court erred in finding that he provided false verification of ownership to a secondhand dealer, and we reverse for resentencing. We find no merit in the appellant's other arguments.

The appellant was placed on probation for various offenses. Subsequently, it was alleged that he violated his probation by using cocaine and committing the new offenses. With respect to the false verification of ownership offense, the state presented evidence establishing that the appellant pawned items which his mother-in-law had loaned him. In the first transaction, the appellant pawned an electric pipe snake. In the second transaction, he pawned an electric leaf blower and an A-frame ladder. The pawn receipts contain the appellant's signature and fingerprint but no statement verifying his ownership of the property.

In July 2017, the appellant's mother-in-law learned the items had been pawned, and she reported the items as stolen, but acknowledged that she had loaned the items to the appellant. A detective interviewed the appellant, who admitted that he pawned the items.

At the close of evidence, defense counsel argued that the state did not prove that the appellant provided a false verification of ownership. The trial court rejected the argument, revoked the appellant's probation on multiple grounds, including a finding that he provided false verification of ownership, and sentenced him to 25 years' imprisonment.

On appeal, the appellant argues that there was insufficient evidence that he provided false verification of ownership. We agree. "[T]he appropriate standard of review for judgments finding probation violations is whether the trial court abused its discretion in finding the violation." Webb v. State , 154 So.3d 1186, 1188 (Fla. 4th DCA 2015). The state must prove the alleged violation by a preponderance of the evidence. Id.

The appellant's probation was revoked based in part on the commission of a violation of section 538.04(4)(a), Florida Statutes (2017), which provides that "[a]ny person who knowingly gives false verification of ownership ... and who receives money from a secondhand dealer for goods sold, consigned, or traded" is guilty of a third-degree felony if the "value of the money received is less than $ 300." The statute also provides that the secondhand dealer must complete a transaction form containing specified information, including the identifying information of the person "from whom the goods were acquired," that person's thumbprint, and a signed "statement verifying that the seller is the rightful owner of the goods or is entitled to sell, consign, or trade the goods." § 538.04(1)(d), and (3), Fla. Stat.

Here, there was no testimony that the appellant claimed to be the owner of the property. The pawnbroker did not testify. The detective recounted his conversation with the pawnbroker, but nothing in that conversation established that the appellant verified his ownership of the property. The pawn receipts entered into evidence do not contain an ownership verification provision. The form does not identify the appellant as the owner but only as the "pledgor/seller." The transaction forms do contain a verification that the pledgor/seller "agree[s] to all terms and conditions of the front and back" and that "[u]nder penalty of perjury [has] read the foregoing document, and the facts stated in it are true." But, importantly, the back pages of the transaction forms do not appear in the record and were apparently not introduced into evidence at trial.

The state argues that there was evidence that the appellant was not the owner of the property. While that may be true, that was not sufficient to prove that he gave a false verification of ownership. The statute he was found to have violated criminalizes not the act of pawning items which the person does not own but rather the provision of a false verification of ownership.

Based on the foregoing, we affirm the revocation to the extent it was based on the appellant's cocaine use and commission of theft and dealing in stolen property, but we reverse to the extent the revocation was based on the false verification offense. We remand "to allow the trial court to [re]-consider the sentence imposed based upon the ... supported violations" and to "correct the order revoking probation to remove the ... unsupported violations." Whitehead v. State , 22 So.3d 846, 849 (Fla. 4th DCA 2009).

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

Warner and Levine, JJ., concur.

      The appellant does not argue on appeal that the statute did not apply to this pawn transaction.


text:
    Alex U. SIRMONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-668
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Carey Haughwout, Public Defender, and Claire V. Madill, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

Alex U. Sirmons appeals his judgment and sentence of twenty years for robbery with a deadly weapon and related convictions. He raises four issues on appeal. With respect to the first three issues, we affirm without further discussion. However, we agree with Sirmons's fourth argument: his sentence should be amended to correct a scrivener's error with respect to credit for time served.

The trial court orally granted Sirmons 685 days credit for time served. However, the sentencing order for Count III reflected only 643 days of credit for time served. Sirmons moved to correct the error and his motion was granted on that point.

However, the "corrected" sentence was apparently transposed but in any event erroneously provided 658 days credit for time served rather than 685 days. Sirmons filed a second motion to correct the sentence on June 13, 2018, while his appeal was pending. It does not appear that the court directly ruled on the motion, but a corrected sentence was entered on August 14, 2018, sixty-one days after the motion was filed.

Pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)(B), if a trial court does not rule on a motion to correct a sentencing error filed while an appeal is pending within sixty days, the motion shall be deemed denied. Once the sixty days has passed, an order purporting to resentence a defendant is entered without jurisdiction and is a nullity. See, e.g. , Maestas v. State , 76 So.3d 991, 993 n.1 (Fla. 4th DCA 2011) ; Campbell v. State , 789 So.2d 1213, 1214 (Fla. 1st DCA 2001).

Here, once sixty days passed after Sirmons's motion was filed, it was deemed denied. Because the trial court entered the amended sentencing order more than sixty days after the motion was filed, the order was entered without jurisdiction and is a nullity.

Accordingly, we quash the corrected sentence and we remand for correction in accordance with the court's oral pronouncement as to the amount of credit to be given to Sirmons for previous time served. The defendant need not be present when the court corrects the error. See Sessions v. State , 907 So.2d 572, 573 (Fla. 1st DCA 2005).

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

Warner and Levine, JJ., concur.


text:
    N.J.G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1665
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   Per Curiam.

In this Anders appeal we affirm the finding of guilt, the adjudication of delinquency, and the sentencing, but remand for the trial court to correct the delinquency disposition orders to include the maximum penalty defined by statute and to specify the amount of time appellant served in secure detention before disposition. See Fla. R. Juv. P. 8.115(d).

Affirmed and remanded.

May, Levine and Klingensmith, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Kenneth STEFFEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3636
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Kenneth Steffen, Doral, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed . See Patterson v. State , 141 So.3d 707, 708 (Fla. 2d DCA 2014) (recognizing that "claims of entitlement to out-of-state jail credit must be raised in a timely motion under rule 3.850").

Ciklin, Levine and Conner, JJ., concur.


text:
    Daniel PANSKY, Appellant, v. BARRY S. FRANKLIN & ASSOCIATES, P.A., Appellee.
    No. 4D16-1353
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Scott Edwards of Scott J. Edwards, P.A., Boca Raton, for appellant.
    Barry S. Franklin of Barry S. Franklin & Associates, P.A., Aventura, for appellee.
   Per Curiam.

Daniel Pansky appeals from a trial court's nonfinal order authorizing a charging order and transfer of his interest in Daniel Pansky, LLC in favor of his judgment creditor, the law firm of Barry S. Franklin & Associates, P.A. ("law firm"). Because we find the trial court exceeded its statutory authority pursuant to section 605.0503, Florida Statutes (2016), when it transferred Pansky's "right, title, and interest" in the limited liability company, we reverse.

The underlying facts show that the law firm had previously represented Pansky in a divorce proceeding. The law firm withdrew as counsel, claiming it was owed attorney's fees that Pansky had not paid. The law firm obtained monetary judgments for the claimed fees and attempted to collect on the judgments by filing a motion for charging order against Daniel Pansky, LLC, in which Pansky has an ownership interest. The law firm also sought transfer of Pansky's ownership interest in the LLC to the law firm.

Pansky conceded that the law firm was entitled to entry of a charging order, but objected to any transfer of his ownership interest in the LLC.

The trial court held a hearing on the law firm's motion and orally ruled that based on Pansky's concession, an agreed order granting a charging order would be entered. The court stated that it would reserve ruling on any additional relief beyond a charging order that the law firm requested.

The trial court entered a written order granting the charging order, but also transferring Pansky's "right, title, and interest" in the LLC. It is from this order that Pansky appeals.

Section 605.0503(3), Florida Statutes, provides that "a charging order is the sole and exclusive remedy by which a judgment creditor of a member or member's transferee may satisfy a judgment from the judgment debtor's interest in a limited liability company or rights to distributions from the limited liability company." Id. (emphasis added).

"[A] charging order constitutes a lien upon a debtor's transferable interest and requires the [LLC] to pay over to the judgment creditor a distribution that would otherwise be paid to the judgment debtor." § 605.0503(1), Fla. Stat. (alterations added).

For single-member LLCs, a charging order is "not the sole and exclusive remedy by which the judgment creditor may satisfy the judgment. ..." § 605.0503(4), Fla. Stat. (emphasis added). In the case of a single-member LLC:

[I]f a judgment creditor of a member or member's transferee establishes to the satisfaction of a court of competent jurisdiction that distributions under a charging order will not satisfy the judgment within a reasonable time ... upon such showing, the court may order the sale of that interest in the limited liability company pursuant to a foreclosure sale.

Id.

Here, a factual dispute exists as to whether Daniel Pansky is the sole member of the LLC. Pansky maintains that it is a two-member LLC, such that only a charging order is authorized, and the law firm contends that Pansky is the sole member.

At the hearing on the law firm's motion, the court stated "I don't have enough in front of me to show it's a one-member LLC that I can give you-all [sic] that other relief. But since there's no opposition to the entry of the charging order, that's granted."

As such, the court stated it would "reserve jurisdiction on the other prayers for relief, such as [a freeze order] and transferring Mr. Pansky's ownership interest " until the factual disputes were determined at a later proceeding. (emphasis added).

In Abukasis v. MTM Finest, Ltd. , the Third District reversed a trial court's order which transferred the appellant's "membership interest" in an LLC toward the satisfaction of a debt. Abukasis v. MTM Finest, Ltd., 199 So.3d 421, 422 (Fla. 3d DCA 2016). The Third District explained that it found "no authority for an order directly transferring an interest in property to a judgment creditor in partial or full satisfaction of a money judgment." Id.

The Third District further stated that the trial court "failed to conform with even the most rudimentary requirements of section 605.0503 [.]" Id. at 423 ; see also McClandon v. Dakem & Assocs., LLC , 219 So.3d 269, 271 (Fla. 5th DCA 2017) (explaining that a charging order should only divest a debtor of his or her "economic opportunity to obtain profits and distributions from the LLC," and it should charge only the debtor's membership interest and not managerial rights); Capstone Bank v. Perry-Clifton Enter., LLC , 230 So.3d 970, 971 (Fla. 1st DCA 2017) (explaining that a charging order instructs the entity to give the creditor any distributions that would otherwise be paid to the member of the entity).

On appeal, the law firm contends that the trial court's order does not make a transfer or conveyance of property or assets. The firm asserts that the order merely adjudicates the law firm's entitlement to a charging order. We find this argument unconvincing.

The trial court's order plainly contains language transferring Pansky's "right, title, and interest" in the LLC to the law firm. Because we find that the order goes beyond granting a charging order-as was agreed to by the parties and authorized by statute-we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded .

Gerber, C.J., Conner and Klingensmith, JJ., concur.


text:
    Walter A. BETANCOURT, Appellant, v. Patricia EDWARDS, Appellee.
    No. 4D18-1518
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Walter A. Betancourt, Deerfield Beach, pro se.
    Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum, Fort Lauderdale, for appellee.
   Per Curiam.

Affirmed . See Fla. R. App. P. 9.315(a) .

Levine, Conner and Klingensmith, JJ., concur.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST, Mortgage Loan Pass-Through Certificates, Series 2006-7, Appellant, v. Silvia VITERI, Jpmorgan Chase Bank, Greg Williams and Sophia Parides, Appellees.
    Nos. 4D17-3689 4D18-388
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables, for appellant.
    Adriana C. Clamens and Jeffrey Harrington of Harrington Legal Alliance, West Palm Beach, for appellee, Silvia Viteri.
   Per Curiam.

Following a nonjury trial, the lower court dismissed the plaintiff's foreclosure case for lack of standing. Because we find the plaintiff established its standing by possession of the original note indorsed in blank, we reverse.

Deutsche Bank brought this foreclosure action "as trustee" for the Harborview Mortgage Loan Trust. Attached to the complaint was a note bearing a blank indorsement which was executed by the original lender.

At trial, the original note bearing the same blank indorsement was placed into evidence. The bank's witness testified that the original note and the note attached to the complaint were identical and that the bank had physical possession of the original note before the complaint was filed.

The borrower retained an expert in securitization of promissory notes. The expert testified that the paperwork required to place the borrower's loan into the Harborview Mortgage Loan Trust pool was not executed before the pool closing date. The expert concluded and opined that the borrower's loan was never placed in the trust pool.

In her motion for involuntary dismissal, the borrower argued that the bank was required to show that the note and mortgage were part of the pool of loans belonging to the trust when the trust was created. The court granted the borrower's motion, finding that the bank failed to establish its standing to initiate the foreclosure action because it failed to prove that the note went into the trust.

When a party is not the original lender, there are various ways it can establish standing to foreclose. Jelic v. LaSalle Bank, Nat'l Ass'n , 160 So.3d 127, 129 (Fla. 4th DCA 2015). One way is to submit a note with a blank indorsement. Id.

If a note is indorsed in blank, it is payable to the bearer and is "negotiated by transfer of possession alone. " § 673.2051(2), Fla. Stat. (2014) (emphasis added). Where the plaintiff's status as holder relies on a blank indorsement, the plaintiff must establish that it had possession of the original note, indorsed in blank, when the complaint was filed.

Calvo v. U.S. Bank Nat'l Ass'n, 181 So.3d 562, 564 (Fla. 4th DCA 2015).

Here, the bank established its standing as holder by its possession of the original note indorsed in blank when the complaint was filed. Once the bank established its standing as holder, the trust's role was not relevant to the foreclosure proceeding. See HSBC Bank USA, Nat'l Ass'n v. Buset , 241 So.3d 882, 889 (Fla. 3d DCA 2018) ("[O]wnership is not relevant to standing so much as the question of who is the ultimate beneficial owner of the proceeds of the foreclosure, an issue not normally or necessarily part of a foreclosure case.").

The trial court erred in granting the borrower's motion for involuntary dismissal. We reverse and remand for further proceedings.

Reversed and remanded .

Gross, May and Damoorgian, JJ., concur.

      The borrower also appeals a post-judgment order denying her motion for attorneys' fees as the prevailing party. We affirm without reaching the merits of the borrower's motion based on our reversal of the final judgment.


text:
    Viola GIGER, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D18-685
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Viola Giger, Hollywood, pro se.
    Alan M. Pierce of Liebler, Gonzalez & Portuondo, Miami, for appellee.
   Per Curiam.

Affirmed . See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1979).

Warner, Damoorgian and Levine, JJ., concur.


text:
    State of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Todd Edward DAVIS, Respondent.
    No. 4D18-2772
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Christie S. Utt, General Counsel, and Mark L. Mason, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for petitioner.
    Louis C. Arslanian of Gold & Associates, P.A., Hollywood, for respondent.
   Per Curiam.

The Florida Department of Highway Safety and Motor Vehicles (the Department) petitions for second-tier certiorari review of the circuit court's order granting Respondent Todd Davis's petition for certiorari and quashing the hearing officer's order affirming Respondent's license suspension. As set forth below, we grant the Department's petition.

Background

In May 2017, police officers responded to a complaint that an SUV had crashed into plant pots lining the front yard of a residential property. An officer approached the vehicle and found Respondent slumped over the steering wheel, unresponsive and smelling strongly of alcohol. Fearing for Respondent's safety, the officer requested emergency transport to the hospital.

Respondent regained consciousness at the hospital, and the officer read him Miranda warnings and questioned him. Respondent admitted to having five drinks and attempting to drive home. While still at the hospital, the officer asked Respondent if he would consent to a blood draw to determine his blood alcohol content (BAC). Respondent consented to the blood draw . Testing indicated that he was unlawfully driving under the influence of alcohol with a 0.412 BAC.

The Department suspended Respondent's license for six months. Respondent challenged the Department's action, and a hearing officer affirmed the suspension, finding the police officer had probable cause to believe that Respondent had an unlawful BAC and was in actual control of the vehicle.

Respondent petitioned the circuit court for certiorari review, insisting that the gravamen of the case was whether the officer informed him that he could refuse a blood draw pursuant to section 316.1932(1)(c), Florida Statutes (2016) (the "implied consent law"). The two-judge majority of the circuit court appellate panel granted the petition and quashed Respondent's license suspension. The circuit court acknowledged our opinion in State v. Dubiel , 958 So.2d 486 (Fla. 4th DCA 2007), wherein we held that a law enforcement officer is not required to advise a suspect of the consequences of failure to consent to a blood draw when the blood draw is legislatively authorized. However, the circuit court relied on our earlier opinion, Chu v. State , 521 So.2d 330 (Fla. 4th DCA 1988), for the proposition that the blood draw at issue was not legislatively authorized under Florida's implied consent law because nothing in the record suggested that a breath or urine test was impossible or impractical. Judge Artau dissented on the basis that Dubiel , and not Chu , controls here.

The Department now petitions this court for second-tier certiorari review, arguing that the circuit court erred by substituting its own findings of fact for those of the hearing officer and because it failed to apply the correct precedent.

Analysis

Our review of a circuit court's decision in its appellate capacity is limited to whether the circuit court afforded the parties procedural due process and whether it applied the correct law. Gordon v. Fla. Dep't of Highway Safety & Motor Vehicles , 166 So.3d 902, 904 (Fla. 4th DCA 2015).

Florida's implied consent law states, in pertinent part:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the alcoholic content of the blood ... as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages ... and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible.

§ 316.1932(1)(c), Fla. Stat. (2016).

In Dubiel , we held that a blood draw is legislatively authorized when a suspect is in a hospital and voluntarily consents. 958 So.2d at 488. In that setting, an officer is not required to advise a suspect of the consequences of refusal. Id. We distinguished Dubiel from our opinion in Chu by explaining "the two cases are factually different, as Dubiel was in the hospital when the blood [draw] was requested. The blood test in Chu [which involved a blood draw and test administered outside of a hospital or other medical facility] was not legislatively authorized, whereas the blood test [in Dubiel ] was." Id. Here, like the defendant in Dubiel , Respondent was in the hospital when the officer requested a blood draw and Respondent voluntarily consented. Because Dubiel is controlling precedent, the circuit court failed to properly construe the implied consent law in reaching the decision to quash the hearing officer's order.

We recently reiterated that the implied consent law does not apply when a suspect voluntarily consents to a blood draw while in a hospital. State v. Meyers , 261 So.3d 573, 2018 WL 6204113 (Fla. 4th DCA Nov. 28, 2018). In such a case, the impracticality of a breath or urine test is not a necessary precondition for obtaining a blood draw.

Id. ("The Florida Supreme Court has explained ... that if a defendant expressly consents to a blood test, 'then the blood test falls wholly outside the scope of the implied consent law.' ") (quoting Robertson v. State , 604 So.2d 783, 790 (Fla. 1992) ).

Conclusion

Accordingly, we grant the Department's petition for writ of certiorari and quash the circuit court's order. This case is remanded to the circuit court for action consistent with this opinion.

Petition granted .

Gerber, C.J., Damoorgian and Forst, JJ., concur.


text:
    Samuel RANDALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2012
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges his conviction as a principal for manslaughter with a deadly weapon. He contends that the trial court erred in denying his motion for judgment of acquittal when the State failed to prove that he intended the crime to be committed or that he did any act to assist in the crime. We agree and reverse the conviction and sentence.

At trial, the State presented evidence that in the early morning hours on May 17, 2015, a witness found the victim bleeding profusely behind a building close to the bus station in Fort Lauderdale. The victim died of his wound. No physical evidence implicating any person was recovered from the scene.

Officers handed out flyers with the victim's picture asking for information. A woman, Michelle, informed the police of her interaction with the victim.

Michelle was at the bus station on the evening before the crime, ingesting drugs and looking for more drugs. "Taz," a drug dealer she knew, was there. He told her that there was a guy looking for a girl, and the guy would pay. Taz then introduced her to the victim. Michelle and the victim agreed that the victim would buy her drugs and something to eat in exchange for sex. The victim purchased the drugs from Taz and took Michelle to get something to eat. Then the two went down an alleyway, and she found a cardboard box to lie on. She began rolling a cigarette, and the victim began grabbing her and demanding that she hurry up. She started to walk towards the bus terminal to look for a condom, and the victim yelled at her and demanded the drugs back if she would not have sex with him. This disturbed Michelle.

At the terminal, Taz asked her why she was shaken up, and she told him that the victim grabbed her and she didn't feel safe. Taz asked the defendant, Samuel Randall, who was an acquaintance of both Taz and Michelle, to walk with him to the alley to talk to the victim and to tell him not to be so rough with Michelle. She was going to do what she had agreed to do, but he should not be so rough with her. Michelle denied that there was any discussion of robbing the victim.

Taz and Randall went back down the alley to confront the victim. Michelle smoked some more drugs and left the area after a while when no one returned. She did not go back and have sex with the victim.

The police conducted two interviews of Randall, which the jury heard. In his first statement, Randall said that he was at the bus terminal when Taz called to him and told him to come with him. Michelle had said that the victim had put his hands on her and taken her money. They walked to the area where she had been. The victim approached Randall and Taz. Taz hit the victim, and then the victim swung at Randall, who hit the victim back. Then Taz cut the victim with a knife. Randall told police, "all of a sudden, I seen blood, and a lot of it and the dude fell back" and hit the fire hydrant. He described the knife that Taz had. He denied that he stabbed the victim.

Police took a second statement from Randall. This time Randall said that he went with Taz to confront the victim about putting his hands on Michelle and taking her money. Taz asked the victim where the money was that he took from Michelle. The victim said she was lying. Taz "got up on him," meaning that Taz hit the victim. Randall said that they "went to tussling" and throwing hands. The victim swung at Randall, and Randall hit the victim back. Then the victim swung at Taz, and Taz hit him back. At that point, Randall saw Taz pull a knife and cut the victim. Randall said that he panicked and ran back to the terminal. Randall saw his cousin and went to his cousin's house.

The State proceeded on the theory that Randall was a principal to manslaughter. The defense moved for a judgment of acquittal on the grounds that the State had offered no evidence either that Randall had intended the crime be committed or that he had done any act to assist Taz in its commission. The trial court denied the motion, and the jury convicted Randall of manslaughter. This appeal follows.

A motion for judgment of acquittal is reviewed de novo. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002) ; Hobart v. State , 175 So.3d 191, 199 (Fla. 2015). On motion for judgment of acquittal, the court must determine whether there is competent substantial evidence to support a conviction. The State has the burden of proving by competent substantial evidence the elements of the offense. Butler v. State , 715 So.2d 339, 340-41 (Fla. 4th DCA 1998). In moving for a judgment of acquittal, the defendant admits all facts adduced and every conclusion favorable to the State that a jury may reasonably infer from the evidence, but if the State fails to prove each element of the offense beyond a reasonable doubt, then it has not presented a prima facie case. Fitzpatrick v. State , 900 So.2d 495, 507 (Fla. 2005) ; see Beasley v. State , 774 So.2d 649, 657, 659 (Fla. 2000).

In its case against appellant, the State charged him with manslaughter as a principal. In order to convict him as a principal to the manslaughter, the State had to prove two elements: 1) that the defendant had the conscious intent that the crime be committed; and 2) that the defendant did "some act to assist the other person in actually committing the crime." Staten v. State , 519 So.2d 622, 624 (Fla. 1988). Randall argues that merely having knowledge that Taz was committing the crime and mere presence at the scene are insufficient to establish participation. See Messer v. State , 757 So.2d 526, 529 (Fla. 4th DCA 2000) (noting that mere knowledge that an offense is being committed is not the same as participation with criminal intent, and mere presence at the scene is not sufficient to establish participation).

The State failed to prove either element to convict Randall as a principal to the crime. There was no evidence that Randall and Taz had the intent to commit any crime when they confronted the victim in the alley. The only evidence showed that they were simply trying to protect Michelle. Although the State argued that Taz and Randall were going to commit a robbery, there was no proof to support that theory. Neither Michelle nor Randall testified that any robbery was discussed. Both Michelle's testimony and Randall's statements concurred that Taz and Randall were only going to confront the victim about grabbing Michelle and taking her money.

While the State did present proof that the victim had money on him earlier in the evening, and his wallet and money were missing when he was found the next morning, there is no evidence that either Randall or Taz took the wallet. The State improperly relies on multiple stacked inferences to make its case. See Rocker v. State , 122 So.3d 898, 904-05, 908 (Fla. 2d DCA 2013) (holding that to reach the conclusion that the evidence was sufficient to support the defendant's conviction as a principal, the jury would have to impermissibly stack inferences); Kennedy v. State , 781 So.2d 421, 423 (Fla. 4th DCA 2001) (quoting another source) ("An impermissible pyramiding of inferences occurs where at least two inferences in regard to the existence of a criminal act must be drawn from the evidence and then stacked to prove the crime charged; in that scenario, it is said that the evidence lacks the conclusive nature to support a conviction"). The State inferred that the victim was robbed because he was found with no money late at night, and he previously had money earlier in the evening. The State then stacked a second inference that Taz and Randall intended to rob the victim when they confronted him. But other inferences can be drawn from the facts. There was evidence that the victim was drinking and had purchased drugs, so he may have spent his money before he went into the alley. Another equally likely inference is that someone other than Taz took the money, as the victim was not found until hours after the incident. There was no evidence to support the State's inferences. The only direct evidence was Michelle's testimony that they had no discussion of robbing the victim. Based upon these multiple inferences, the State's evidence was insufficient to show that Randall had any intent to commit a crime.

The State's evidence that Randall committed any act to assist in the crime is also lacking. The State had to prove that Randall intended that an act constituting culpable negligence be committed and that he did some act to assist in that crime, not that Randall intended that the victim be stabbed. "Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury." Fla. Std. Jury Inst. (Crim.) 7.7. The only evidence was that Randall accompanied Taz to tell the victim not to rough up Michelle. There is nothing to show that Randall should reasonably have known that this was likely to cause death or great bodily harm. And although the State asserts that "[t]here is ample evidence to show that [Randall] took actions to aid Taz when he went with him to confront the victim and punched the victim," the evidence did not show that he was aiding Taz in the manslaughter or in robbing the victim. The only evidence of what occurred came from Randall's statements. Randall recited that Taz and the victim began to tussle, and the victim swung at Randall. He told the police that he hit the victim only after the victim swung at him. The victim also swung at Taz, which is when Taz pulled his knife and cut the victim.

This case is similar to Hedgeman v. State , 661 So.2d 87 (Fla. 2d DCA 1995). There, the victim owed Hedgeman ten dollars. Id. at 88. There had been two altercations between the victim and Hedgeman involving this debt in which Hedgeman, Daniel White, and another person were involved. Id. On the night of the murder, the victim had gone to a neighbor's apartment. Id. Hedgeman, White, and two other males also had gone there. Id. White shot the victim. Id. There was conflicting testimony as to whether Hedgeman had been in the apartment during the shooting, but after the shooting, Hedgeman had kicked the dying victim. Id. Hedgeman was convicted of second degree murder. Id. On appeal, the Second District reversed, ruling that there was insufficient evidence to establish that he was a principal to the crime. Id. In order to convict him as a principal, the State had to prove that he "intended the crime be committed and did some act to assist the other person in actually committing the crime." Id. There was no evidence that Hedgeman fired the gun or that he knew that White intended to kill the victim. Id. There was no evidence that White planned to kill the victim and that Hedgemen knew of his plans. Id. Furthermore, there was conflicting evidence on whether Hedgeman was in the room when the shots were fired. Id. There also "was no evidence that Hedgeman took any action prior to or during the shooting to aid, encourage, or participate in White's act of shooting the victim." Id. Moreover, the act of kicking the victim did not contribute to the cause of death. Id.

Similarly, in this case, there is no evidence that Randall intended or knew that Taz intended to commit any crime or to involve himself in an altercation of any kind. There is no evidence that Taz was intending to cut the victim with his knife before the victim attempted to hit him. In short, there is no evidence that Randall stabbed the victim, that he knew Taz was going to stab the victim, or that he intended Taz to stab the victim.

Because the State failed to prove that Randall was a principal to the crime of manslaughter, the trial court erred in denying the motion for judgment of acquittal. We thus reverse, direct that the conviction and sentence be vacated, and that a judgment of acquittal be entered and defendant be discharged.

Reversed and conviction and sentence vacated.

Damoorgian and Kuntz, JJ., concur.