Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KENNETH MACE and JANICE MACE, ) ) Appellants, ) ) v. ) Case No. 2D16-3381 ) M&T BANK, ) ) Appellee. ) ___________________________________) Opinion filed March 25, 2020. Appeal from the Circuit Court for Lee County; Michael T. McHugh, Judge. Mark P. Stopa of Stopa Law Firm, Tampa (withdrew after briefing); Latasha C. Scott of Lord Scott, PLLC, Tampa (substituted as counsel of record), for Appellants. Charles P. Gufford of McCalla Raymer Liebert Pierce, LLC, Orlando, for Appellee. SALARIO, Judge. Kenneth and Janice Mace appeal from a final judgment of foreclosure in favor of M&T Bank. We reverse because the Bank failed to introduce legally sufficient evidence that it mailed the Maces a default notice before filing suit for foreclosure as required by paragraphs fifteen and twenty-two of the mortgage. We remand for the entry of an order of involuntary dismissal. I. This is a more-or-less typical residential foreclosure case alleging that borrowers under a mortgage loan defaulted on their obligation to make monthly payments of principal and interest on a note secured by a mortgage. Paragraph twenty- two of the mortgage contains a standard provision that requires the lender (here, the Bank) to give the borrowers (here, the Maces) thirty days' written notice of the default before accelerating the balance due on the loan.1 Paragraph fifteen of the mortgage requires that any notice to the borrowers be in writing and be deemed given when mailed by first-class mail or actually delivered to the borrower. A lender's obligation to give notice of default in accord with these provisions is a condition precedent to its acceleration of the debt due on the underlying note and commencement of a foreclosure suit. See Spencer v. Ditech Fin., LLC, 242 So. 3d 1189, 1191 (Fla. 2d DCA 2018); Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 12 (Fla. 2d DCA 2015). The Bank's complaint alleged compliance with all conditions precedent. The Maces' answer denied that allegation and asserted that the Bank had failed to provide them with a pre-acceleration default notice. Thus, it became the Bank's burden to prove that it had given the Maces notice of default in accord with paragraphs fifteen and twenty-two of the mortgage. See, e.g., Spencer, 242 So. 3d at 1191; Allen v. Wilmington Tr., N.A., 216 So. 3d 685, 688 (Fla. 2d DCA 2017). 1Here, the Bank was technically the servicer on the loan, and the evidence established that it was entitled to enforce the note as a holder. See § 673.3011(1), Fla. Stat. (2015). No one has argued that this affects the applicability of the notice requirements of the mortgage. -2- The case proceeded to a nonjury trial. The Bank's sole witness was Shelly Andreas, an assistant vice president and operations manager at the Bank. Through Ms. Andreas, the Bank introduced a default letter addressed to the Maces dated February 13, 2015. The Bank also introduced a copy of a certified mail card addressed to the Maces and bearing the return address of an entity called McCalla Raymer, LLC. When asked about whether there was any evidence that a third party was used to mail the February 13, 2015 letter to the Maces, Ms. Andreas pointed to the certified mail card and said she was "considering McCalla Raymer a third party, as an agent for" the Bank. The certified mail card was admitted as a separate exhibit from the default letter. It was not dated or signed. There were no markings or other indications on the document suggesting that it was filled out for purposes of mailing the default letter or, if it was, that it had in fact been mailed to the Maces. The Bank did not seek to admit any other documents that might have borne on the questions whether and when the default letter was mailed. Ms. Andreas testified that she had personal knowledge that the default letter was sent because she was "personally involved" in sending the letter. Ms. Andreas did not, however, actually mail the letter or have any firsthand knowledge that the letter was mailed. As it turned out, the personal involvement upon which Ms. Andreas's personal knowledge was based consisted of (1) conversations she had with people at McCalla Raymer about the default letter and (2) records she had reviewed that, according to Ms. Andreas, reflected that the letter had been sent. Ms. Andreas did not describe those records, and the Bank did not have them admitted into evidence. The Maces repeatedly objected to Ms. Andreas's testimony, asserting that Ms. Andreas -3- lacked personal knowledge of the mailing of the letter and that her testimony about it was based on hearsay—namely what she heard from McCalla Raymer and what she saw in other documents. The trial court overruled the objections. Ms. Andreas testified that she was "familiar with the normal business operation and practices of [the Bank] as it pertains to servicing loans and record- keeping." She further testified that she had received "training" regarding sending out default notices, which consisted of "interactions" with the department responsible for sending out breach letters and "interactions with my counsel's office" regarding its process for sending breach letters. Beyond this, however, Ms. Andreas did not testify that the Bank had a routine or ordinary practice for sending default letters, what the practice was, or whether she had personal knowledge of it. To the extent the Bank's process is to use a third party such as a vendor, she did not testify what the third party's regular practices or policies were either. At the close of the Bank's case, the Maces moved for an involuntary dismissal. They argued, among other things, that the Bank failed to adduce legally sufficient evidence that the default notice admitted into evidence was mailed by first class mail to the Maces as required by paragraph fifteen of the mortgage.2 The trial court denied the motion. After hearing the defense case—during which Mr. Mace testified that he never received the default notice—the trial court entered a final judgment of foreclosure in favor of the Bank. This is the Maces' timely appeal. 2The Bank did not attempt to prove, and has not argued in either the trial court or here, that the evidence was sufficient to show that the default notice was actually delivered to the Maces. -4- II. On appeal, the Maces argue that the Bank's proof that it mailed them a default letter was legally insufficient because the only evidence it introduced came from a witness without personal knowledge and was inadmissible hearsay. We may review the sufficiency of the evidence in a civil, nonjury trial without the issue being preserved with a motion in the trial court. See Fla. R. Civ. P. 1.530(e). Our review is de novo. See Norman v. Padgett, 125 So. 3d 977, 978 (Fla. 4th DCA 2013). Legally sufficient evidence is generally understood to be equivalent to competent substantial evidence. See, e.g., N.J. v. Dep't of Children & Families, 143 So. 3d 1109, 1112 (Fla. 2d DCA 2014) ("Competent substantial evidence is tantamount to legally sufficient evidence." (quoting S.T. v. Dep't of Children & Family Servs., 87 So. 3d 827, 833 (Fla. 2d DCA 2012))); Tsavaris v. NCNB Nat'l Bank of Fla., 497 So. 2d 1338, 1339 (Fla. 2d DCA 1986) (equating legal sufficiency to competent substantial evidence (quoting Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981))). We have explained that evidence is competent when it is "admissibl[e] under legal rules of evidence" and is substantial when it is "material" and has a "definite probative value." Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (quoting Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially)); see also Lonergan v. Estate of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th DCA 1988) (same). Applying these standards to this case, we begin by observing that it is now settled that the mere fact that a foreclosure plaintiff drafted a paragraph twenty-two default letter is not enough to allow a trial court to infer that the letter was mailed. Spencer, 242 So. 3d at 1191; see also Edmonds v. U.S. Bank Nat'l Ass'n, 215 So. 3d 628, 630 (Fla. 2d DCA 2017) ("Although the letters were admitted into evidence, the fact -5- that they were drafted is insufficient by itself to show that they were mailed."). The reason is plain enough: One cannot conclude from the fact that someone wrote a letter that they also mailed it, at least not without engaging in speculation about what happened. See Allen, 216 So. 3d at 688. Thus, we have held that "mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt." Id.; see also Spencer, 242 So. 3d at 1191. Our statements that these types of "additional evidence" can establish that a default letter was mailed point to three broad categories of proof that, individually or in combination, may be capable of doing the job in any given case. See Allen, 216 So. 3d at 688. One is the testimony of a witness or witnesses with personal knowledge of relevant facts, perhaps someone involved with the mailing of the letter. See id. A second is evidence that the organization responsible for mailing the letter had a routine practice with respect to mailing letters of that type from which a court can infer that the routine practice was followed and the letter was mailed. See, e.g., Thorlton v. Nationstar Mortg., LLC, 257 So. 3d 596, 601-02 (Fla. 2d DCA 2018); CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016). And a third is properly admitted records—such as a return receipt or a log entry generated upon mailing—that bear on the question of mailing. See Edmonds, 215 So. 3d at 630 (explaining that plaintiff failed to "produce any return receipts, a mailing log, or any documentary evidence" bearing on mailing); cf. Knight v. GTE Fed. Credit Union, 43 Fla. L. Weekly D348 (Fla. 2d DCA Feb. 14, 2018) (describing plaintiff's attempt to prove mailing with a -6- mailing log and holding that the log was inadmissible), review stayed, SC18-790 (Fla. May 29, 2018). None of these kinds of evidence are present in this case. First, the Bank did not present any testimony by a witness with personal knowledge that the letter was mailed. Although Ms. Andreas said that she was personally involved in the mailing of the letter, it quickly became clear that (1) she had no personal knowledge whatsoever of whether the default notice was mailed and (2) any information she did have came from conversations she had with someone at McCalla Raymer and her review of Bank records that were not offered or admitted into evidence. It should go without saying (1) that testimony by a witness without personal knowledge is inadmissible, see § 90.604, Fla. Stat. (2016), and (2) that testimony based on what other people or documents say, when offered for the truth of the matter, is hearsay and, when unaccompanied by any showing that an exception to the hearsay rule applies, is inadmissible, see § 90.801(1)(c); Sas v. Fed. Nat'l Mortg. Ass'n, 112 So. 3d 778, 779 (Fla. 2d DCA 2013) (holding that a trial court erred "in allowing Greenlee to testify over objection about the contents of Fannie Mae's business records . . . without having first admitted those business records"). The Maces objected to Ms. Andreas's testimony on personal knowledge and hearsay grounds and on the grounds that her testimony was not sufficient to sustain a judgment in the Bank's favor. See, e.g., Knight, 43 Fla. L. Weekly D348 (holding that hearsay records were inadmissible and, when that evidence was excluded, that plaintiff's evidence of mailing was legally insufficient); Holt v. Calchas, LLC, 155 So. 3d 499, 507 (Fla. 4th DCA 2015) (same; involving hearsay testimony). -7- Second, the Bank did not establish its routine practice for mailing default letters. Under section 90.406, "[e]vidence of the routine practice of an organization . . . is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice." Thus, we have held that an organization's legally sufficient proof of its routine business practices for mailing default letters is legally sufficient to prove that a default letter was mailed in a specific case. See Thorlton, 257 So. 3d at 601-02; Spencer, 242 So. 3d at 1191 (quoting Allen, 216 So. 3d at 688). Generally, this requires that a witness testify based on personal knowledge as to what the organization's routine practice for mailing default letters is. See Spencer, 242 So. 3d at 1191 (stating that a witness testifying to routine practice "must have personal knowledge of the company's general mailing practice—meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company's routine practice for mailing letters." (first citing Allen, 216 So. 3d at 688; then citing Edmonds, 215 So. 3d at 630)). When an organization's routine practice is to use a third party to mail letters, we have found routine practice evidence legally sufficient "where a testifying witness establishes his or her personal knowledge of a foreclosing entity's and third-party vendor's routine business practices and policies for drafting and mailing a default letter." Thorlton, 257 So. 3d at 602 (emphasis added) (citing PNC Bank Nat'l Ass'n v. Roberts, 246 So. 3d 482, 482 (Fla. 2d DCA 2018)). As the text of section 90.406 and the foregoing authorities make clear, an organization's reliance on its routine practice to prove its conduct in a specific case requires that it actually present "evidence of the routine practice of [the] organization"— -8- i.e., evidence of what the organization's practice in fact was. See also Eig v. Ins. Co. of N. Am., 447 So. 2d 377, 379 (Fla. 3d DCA 1984) (holding that section 90.406 requires a party "to prove by competent evidence what its routine practice is"). That evidence is entirely missing here. Assuming without deciding that Ms. Andreas's testimony about her training was sufficient to establish some awareness that the Bank had a routine practice for mailing—a debatable proposition—she never testified as to what that practice was. Nor did she testify to any third party's practice for mailing default letters on behalf of the Bank, if in fact using a third party was the Bank's routine practice. The trial court was, as a result, in the dark as to what the Bank routinely does with default notices—whether it mails them itself, whether it uses a third party, whether it uses McCalla Raymer, whether it does something else, and what any third party does in terms of mailing. And without that evidence, the trial court had no legally sufficient basis to infer that the Bank mailed the Maces' default letter in this case on account of it having a routine practice for mailing them. See Soule v. U.S. Bank Nat'l Ass'n, 253 So. 3d 679, 680 (Fla. 2d DCA 2018) (holding that evidence of routine practice was insufficient because witness lacked personal knowledge and therefore "could not provide competent, substantial evidence of those practices"); Eig, 447 So. 2d at 378 (holding that organization could not rely on routine practice to establish the signing of an agreement where its trial witness could not testify to what the routine practice was); cf. Thorlton, 257 So. 3d at 601-02 (holding that plaintiff could rely on routine practice to establish mailing where a witness with firsthand knowledge testified to what the practice was). On the evidence the Bank provided, any conclusion as to whether the Bank had a routine practice or what that practice was would be sheer speculation. -9- Third, as far as records that might prove that the default notice was mailed are concerned, the only record the Bank introduced was the copy of the certified mail card. The copy of the card was a separate exhibit from the copy of the default letter the Bank admitted into evidence. The face of the card does not demonstrate any connection to the default letter, as distinguished from some other piece of correspondence; the card is, for example, undated and lacks any indication of what correspondence it was intended to convey. Furthermore, the copy of the card contains no reflection that it was ever placed in the mail and no return receipt showing its delivery to the Maces. The most the card establishes, then, is that at some unspecified time some person addressed a certified mail card to the Maces. See Torres v. Deutsche Bank Nat'l Tr. Co., 256 So. 3d 903, 906 (Fla. 4th DCA 2018) (concluding that a request for a return receipt with a barcode at the top of a letter "establishes only that the letter was created and printed," not that it was mailed). One cannot reasonably infer from that fact that the card was actually used to mail the default letter or that both were actually put together in the mail—not any more than one could reasonably infer from the fact that a default letter was drafted that it was mailed. See Strod v. Lewenstark, 958 So. 2d 1138, 1140 (Fla. 4th DCA 2007) (explaining that an attached certified mail receipt does not prove the letter was mailed where the receipt is incomplete). That too would be speculation, not reasonable inference. When Ms. Andreas's hearsay testimony that the default letter was mailed is excluded, there is no evidence left that shows that the Bank mailed a default letter to the Maces. In two decisions that are materially indistinguishable from the facts here, our court has held that a foreclosure plaintiff's evidence that a default notice was mailed - 10 - was legally insufficient. In Knight, a foreclosure plaintiff's only proof that a default notice was mailed were documents that were admitted into evidence over a well-taken hearsay objection. 43 Fla. L. Weekly D348. We held that the evidence was legally insufficient because the plaintiff "failed to introduce any admissible evidence that the default letter was actually mailed to the Borrowers" and therefore "did not meet its burden of proving it satisfied the condition precedent of giving notice." Id. (emphasis added). Likewise, in Spencer, we reversed a final judgment of foreclosure based on the insufficiency of the evidence that a default notice was mailed where the plaintiff's only evidence of mailing was the hearsay testimony of an employee of a mortgage servicer who lacked personal knowledge of the facts and to which the defendant, like the Maces here, repeatedly objected. 242 So. 3d at 1190-91. And the Fourth District reached the identical result in Holt. 155 So. 3d at 507 (holding that foreclosure plaintiff's evidence of mailing was legally insufficient where it was based on inadmissible, objected-to hearsay). In similar circumstances—although not involving the mailing issue—where without some wrongly admitted evidence, the remaining evidence is insufficient to sustain a foreclosure judgment after a nonjury trial, our court has found the evidence legally insufficient and reversed. See Mathis v. Nationstar Mortg., LLC, 227 So. 3d 189, 193 (Fla. 2d DCA 2017) (holding that evidence was insufficient to prove plaintiff's standing after determining that the trial court incorrectly allowed a witness to testify, over objection, to the contents of an allonge in violation of the best evidence rule); Evans v. HSBC Bank, USA, Nat'l Ass'n, 223 So. 3d 1059, 1062 (Fla. 2d DCA 2017) ("Accordingly, the admission of the payment history into evidence was erroneous. Consequently, HSBC Bank failed to present sufficient evidence as to its damages."); - 11 - Channel v. Deutsche Bank Nat. Trust Co., 173 So. 3d 1017, 1020 (Fla. 2d DCA 2015) ("Because those documents were admitted in error, there is insufficient evidence to support the amount due and owing under the loan."); see also Burdeshaw v. Bank of N.Y. Mellon, 148 So. 3d 819, 826 (Fla. 1st DCA 2014) (reversing due to evidentiary insufficiency where a foreclosure plaintiff's evidence of the amount due was hearsay and "no other evidence was presented to support the amount owed on the note"). This case is not different in any legally consequential respect, and our precedents require that we reverse as well. III. The parties dispute—and have helpfully provided us with supplemental briefs about—whether on remand the Bank gets a new trial or the Maces get an order of involuntary dismissal. How we make that decision has been a hotly contested matter in residential foreclosure cases, and our opinions on the subject have not always been explicit. See generally Spencer, 242 So. 3d at 1191-95 (Salario, J., concurring) (overviewing various outcomes courts have reached when remanding residential foreclosure cases). Last year, our court clarified the proper inquiry for "scope of remand" decisions in Tracey v. Wells Fargo Bank, N.A., 264 So. 3d 1152, 1157-69 (Fla. 2d DCA 2019). In Tracey, the plaintiff filed a complaint alleging payment defaults on a note and mortgage without making any reference to a modification of the loan the note and mortgage evidenced. Id. at 1154. At trial, however, the plaintiff sought to proceed on a theory that the defendant had breached the terms of certain loan modification agreements. Id. Over the defendant's objection, the trial court admitted the agreements into evidence and granted the plaintiff's motion to amend the pleadings to conform to - 12 - the evidence—namely to present a theory based on the loan modification agreements that was not alleged in the complaint. Id. We held that the trial court erred by granting the motion to amend, reasoning that the defendant had been prejudiced by the late amendment, and we reversed a final judgment the trial court rendered in the plaintiff's favor. Id. at 1155-56. Without the erroneous decision to allow amendment, the plaintiff's evidence at trial did not prove the theory it alleged in its complaint. See id. at 1154. We then addressed the proper scope of remand—whether the trial court should on remand hold a new trial or enter an order of involuntary dismissal. See id. at 1157-69. We conducted a detailed review of the applicable statutory and case law, emphasizing two key principles throughout: (1) that interests of finality and fairness have yielded a "long-standing aversion to remanding" a case for retrial when a party fails to prove its case in the first trial, id. at 1161; and (2) that appellate courts retain discretion to remand for further proceedings notwithstanding a failure of proof in cases presenting exceptional circumstances in which the interests of equity and fairness call for an "extra bite of the apple," id. at 1162 (quoting Morton's of Chicago, Inc. v. Lira, 48 So. 3d 76, 80 (Fla. 1st DCA 2010)). We concluded as follows: [W]hen fashioning remand for a civil appeal where the party with the burden of proof fails to sufficiently plead the claim it presents at trial or to establish a basis in admissible evidence for a claim at trial, an appellate panel may exercise some level of equitable discretion to consider the circumstances of a particular case. This discretion is bounded by both the substantive relief sought within the appeal and the strong preference for finality of trial proceedings. The prohibition against proverbial multiple "bites at the apple" for trials remains rooted as the leading, guiding principle to govern the scope of remand and should - 13 - serve as the default direction when these kinds of decisions are being made. We agree with how the Morton's court put it: only "exceptional legal or factual" circumstances will justify a deviation from this general prohibition. Id. at 1168 (emphasis added) (quoting Morton's, 48 So. 3d at 80). In so holding, we rejected the argument that remand for a new trial is necessarily required when a party relies in good faith on a trial court ruling we later find to be erroneous—in Tracey, the trial court's decision on a motion to amend the pleadings. Id. at 1167 n.9, 1172-73 (Sleet, J., dissenting). Applying that holding to the facts of the case, we concluded that the default assumption against a retrial applied and found no exceptional circumstances warranting a different outcome. See id. at 1165. Our analysis emphasized equities relating to the procedure in the trial court and the reasons why the plaintiff's proof was insufficient. Among other things, we focused on the facts that the plaintiff failed to explain why it waited until trial to raise the issue, that on appeal the plaintiff confessed to an "inadvertent" pleading error, and that the defendant would be prejudiced by "having to relitigate her defense in piecemeal, seriatim trials while her adversary vacillates around what the alleged basis of its claims will ultimately be." Id. Informed by our decision in Tracey, we conclude that remand for entry of an order of involuntary dismissal is the correct result in this case.3 The Bank failed to present legally sufficient evidence that the paragraph twenty-two letter was mailed, so 3In nonjury cases where a party has not moved for involuntary dismissal but nonetheless shows on appeal that the evidence is insufficient to support the judgment, see Fla. R. Civ. P. 1.530(e), the correct instruction would be to enter a judgment in favor of the appellant, see Winchel v. Pennymac Corp., 222 So. 3d 639, 646 n.5 (Fla. 2d DCA 2017). - 14 - remand for involuntary dismissal is our default direction. And our record reflects no exceptional circumstances that would warrant a do-over. Without intending to require a subsequent panel to consider any particular factors in deciding whether to exercise its discretion to determine whether exceptional circumstances warranting further proceedings exist, the following facts are salient to us. The Bank's proof was insufficient because the only evidence of mailing it offered was inadmissible because the testifying witness lacked personal knowledge and conveyed only hearsay. That is not a close call; Ms. Andreas had no relevant personal knowledge to convey, and the idea that testimony about what other people and documents say is generally regarded as inadmissible hearsay is the stuff of law school evidence classes. It appears from the record that Ms. Andreas's testimony was presented to the trial court as though it was actually based on Ms. Andreas's "personal involvement" in mailing the letter—even though it was quickly revealed that her personal involvement consisted of nothing more than conversations with others and a review of documents. Moreover, we see nothing in our record to suggest that had the trial court excluded the evidence as the law requires, the Bank would have been prepared to present other admissible evidence of mailing—Ms. Andreas was the only witness it brought to trial. Given those facts, we see no exceptional circumstances that justify a remand for a new trial. See also Spencer, 242 So. 3d at 1194 (Salario, J., specially concurring) (explaining that remanding for a new trial in similar circumstances "seems to reward either (or both) a litigant's insufficient trial preparation or a strategic decision that it might be able to convince a court to admit clearly inadmissible evidence—precisely the kinds of results the general rule against granting a new trial . . . is designed to - 15 - avoid"). Remanding for an involuntary dismissal in this case is consistent both with the scope of remand analysis we clarified in Tracey and with every published decision this court has rendered in which we have reversed a foreclosure judgment because the plaintiff's proof of mailing a default letter was insufficient. See Soule, 253 So. 3d at 681 (remanding for entry of order of involuntary dismissal); Spencer, 242 So. 3d at 1191 (same); Knight, 43 Fla. L. Weekly D348 (same); Edmonds, 215 So. 3d at 631 (same); Allen, 216 So. 3d at 688 (same). Seen in that light, there is nothing exceptional about the circumstances of this case. IV. Now we must address the dissent. The dissent concedes that Ms. Andreas's testimony about mailing inadmissible, and it all but concedes that her testimony was the Bank's sole evidence of mailing.4 The dissent boils down to an argument that our decision is in "conflict with long-standing precedent" holding (1) that we are legally required to consider inadmissible evidence—here, Ms. Andreas's testimony—in determining whether the evidence at a nonjury trial is legally sufficient and (2) that when a party's sole evidence on a point on which it bears the burden of proof is inadmissible, we are legally required to remand for a new trial. The dissent 4The dissent inaccurately characterizes the certified mail card as "indicating that the letter had been mailed to the Maces," but as explained in part II, there was no evidence that the card was used to mail the default notice or that the default notice was mailed. The dissent also implies that the fact that some of Ms. Andreas's testimony about the default letter was elicited by the Maces' counsel is important—for what reason, it does not say—but fails to note that the testimony was elicited by the Maces' counsel in support of the argument that Ms. Andreas lacked personal knowledge of the matters to which she testified. - 16 - overclaims the authorities upon which it relies and overlooks those most applicable here. The dissent's objection that an appellate court reviewing the sufficiency of the evidence to support a judgment after a nonjury trial must consider improperly admitted, objected-to testimony is puzzling because our dissenting colleague has previously authored an opinion for a unanimous court doing the precise opposite— excluding inadmissible evidence and holding the remainder legally insufficient. See Doyle v. CitiMortgage, Inc., 162 So. 3d 340, 342 (Fla. 2d DCA 2015). In Doyle, the court held that a foreclosure plaintiff's proof of the amount of the defendant's indebtedness was legally insufficient because "the testimonial evidence presented to establish the total amount of indebtedness was inadmissible hearsay and the total amount of indebtedness is not supported by competent, substantial evidence."5 As shown in part II, our colleague is far from alone in having evaluated evidentiary sufficiency in the context of a nonjury trial in this way. 5The dissent's attempt to characterize Doyle as a case of unfortunate wording is not convincing. It says that Doyle rests on the absence of proof to support certain figures in the final judgment but overlooks that those figures were simply component parts of the total amount of indebtedness, proof of which is necessary to secure a foreclosure judgment. See Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979). The final judgment in Doyle stated a total amount of indebtedness and identified it as being comprised of five items. Doyle, 162 So. 3d at 341 & n.3. The problem Doyle identified was that while there was admissible evidence supporting the principal component—a payment history—the only other evidence supporting the total amount of the indebtedness was hearsay testimony as to the total amount. Id. at 341- 42. Doyle held that "the testimonial evidence . . . was inadmissible hearsay and the total amount of indebtedness is not supported by competent substantial evidence." Id. at 342. This reads like a holding predicated on admissibility and not a case of words not expressing the court's true meaning. That is made clear by Doyle's reliance on Sas, which also held that the evidence of the total amount of evidence insufficient because the plaintiff's only evidence was inadmissible hearsay. See Sas, 112 So. 3d at 779. - 17 - Furthermore, the dissent actually concedes that our decision in Knight and the Fourth District's decision in Holt stand for the proposition that where a plaintiff's sole proof of mailing is inadmissible, the evidence is insufficient to sustain a foreclosure judgment. And although the dissent tries to cast Spencer as a case that did not involve a determination that the plaintiff's only evidence of mailing was inadmissible, it does not read that opinion fairly. In Spencer, the plaintiff's evidence of mailing was, like the Bank's here, the testimony of an employee of a servicer who lacked personal knowledge. 242 So. 2d at 1190. Like the Maces here, the defendant objected to that testimony on personal knowledge and hearsay grounds. Id. On appeal, we agreed that the witness lacked personal knowledge and held the evidence was insufficient. Id. at 1191. The requirement that a witness have personal knowledge is, of course, a requirement of the evidence code, and a determination that a witness lacks personal knowledge means that the witness's testimony is inadmissible. See § 90.604; Leonard v. State, 192 So. 3d 1258, 1260 (Fla. 2d DCA 2016) ("[T]he detective's testimony on this point was inadmissible because it was not based on personal knowledge."). Spencer was thus quite plainly a case where the plaintiff's only evidence of mailing was inadmissible, and we held the evidence insufficient. See also 242 So. 3d 1189 (Salario, J., specially concurring) ("The Spencers argue in this appeal that the evidence was insufficient to sustain the judgment. They correctly point out that Everhome's sole trial witness, Ms. Knight, lacked any personal knowledge . . . and that without her testimony the evidence was insufficient as a matter of law. . . ."). Thus, to agree with the dissent, we would have to ignore two precedents of this court and one of a sister court that involve materially identical facts. We would - 18 - also have to ignore our court's decisions in Doyle, Evans, Channel, and Mathis and at least the First District's decision in Burdeshaw, all of which involve an appellate court reviewing the sufficiency of the evidence after a nonjury foreclosure trial and expressly excluding inadmissible, objected-to evidence from its consideration of evidentiary sufficiency.6 These decisions cannot be understood as anomalies. There are ample judicial opinions in a variety of contexts outside foreclosure in which appellate courts reviewing the sufficiency of the evidence after a nonjury proceeding have excluded objected-to, inadmissible evidence from their consideration in determining whether the evidence is legally sufficient. See, e.g., Tallahassee Hous. Auth. v. Fla. Unemployment Appeals Comm'n, 483 So. 2d 413, 414 (Fla. 1986) ("[T]he summary of absences upon which the referee relied in denying Barron's unemployment compensation benefits was erroneously admitted into evidence. Consequently, no substantial competent evidence supports a finding of misconduct . . . ."); De Hoyos v. Bauerfeind, 286 So. 3d 900, 901, 904-05 (Fla. 1st DCA 2019) (reversing injunction against domestic violence where movant's sole evidence was inadmissible hearsay and concluding that movant "did not provide competent, substantial evidence to support the injunction"); D.J.S. v. State, 242 So. 3d 448, 449 (Fla. 2d DCA 2018) (holding that objected-to, inadmissible hearsay was insufficient to prove value for purposes of a grand theft delinquency adjudication); 6The dissent's effort to characterize Evans and Mathis as not involving sufficiency problems created by our determination on appeal that the plaintiff's only evidence on a point was inadmissible is, like its effort to distinguish Doyle, contradicted by what those decisions explicitly state. See Evans, 223 So. 3d at 1062 (Fla. 2d DCA 2017) ("[T]he admission of the payment history into evidence was erroneous. Consequently, HSBC Bank failed to present sufficient evidence as to its damages.") (emphasis added); Mathis, 227 So. 3d. at 192-93 (finding plaintiff's proof of standing "insufficient" where it failed to produce an original allonge and the "testimony regarding the contents of the allonge was inadmissible under the best evidence rule"). - 19 - Washburn v. Washburn, 211 So. 3d 87, 91 (Fla. 4th DCA 2017) (holding, in a child support case, that when improperly admitted hearsay was excluded "there is no competent, substantial evidence of the husband making any income other than that from his business" and remanding with directions to consider "only the evidence properly admitted"); Council v. State, 206 So. 3d 155, 156 (Fla. 1st DCA 2016) (reversing conviction after nonjury trial for grand theft where the State's evidence on value "constituted inadmissible hearsay and was legally insufficient as a matter of law to prove the stolen ring's replacement value"); A.S. v. State, 91 So. 3d 270, 271 (Fla. 4th DCA 2012) (reversing delinquency adjudication because hearsay testimony "should have been stricken" and "[w]ithout this evidence the record does not provide competent, substantial evidence demonstrating the essential element of value"); St. Augustine Marine Canvas & Upholstery, Inc. v. Lunsford, 917 So. 2d 280, 286 (Fla. 1st DCA 2005) (reversing award of medical benefits by judge of compensation claims where the expert testimony supporting the award "was not admissible . . . and without his testimony there was no competent, substantial evidence" supporting the award); Henderson v. Henderson, 537 So. 2d 125, 128 (Fla. 1st DCA 1988) (holding that evidence was insufficient to support factual finding in support of modification of child custody wh