author: THOMPSON, J.

text:
    EXTENDICARE, INC., Appellant, v. The ESTATE OF James J. McGILLEN, etc., et al., Appellees.
    No. 5D06-969.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.

      Connolly C. McArthur and Donna J. Fudge of Buckley & Fudge, P.A., St. Pe-tersburg, for Appellant.
    Susan B. Morrison, of Law Office of Susan B. Morrison, P.A, and Linda G. Moreno of Wilkes & McHugh, P.A., Tampa, for Appellee.
   THOMPSON, J.

Extendicare, Inc. (“Extendicare”) appeals from an order denying its motion to quash service of process and to dismiss. It is one of more than a dozen corporations and individuals sued by the Estate of James J. McGillen (“McGillen”). James J. McGillen lived in University Center East (“Nursing Home”) in Volusia County from July 2001 until his discharge in January 2004. McGillen’s second amended complaint raised various claims for negligence, breach of fiduciary duty, wrongful death, civil conspiracy, and common law concert of action. We reverse and remand for dismissal of the complaint against Extendi-care.

Extendicare is a Canadian corporation and non-resident of Florida. It is the parent corporation of Extendicare Health Services, Inc. [“EHSI”], which is an upstream corporation of Extendicare Health Network, Inc. [“EHNI”], which is a member of Partners Health Group, LLC [“PHG”], which is a member of Partners Health Group-Florida, LLC [“PHGFL”]. McGillen alleged that Extendicare, its subsidiaries, three other defendant corporations, and five individual defendants all operated the Nursing Home. Its second amended complaint included the following jurisdictional allegations relating to Exten-dicare:

15. [Extendicare] is a Canadian corporation, which is doing business in Florida.
16. [Extendicare] ... operated the nursing home during JAMES J. McGIL-LEN’ S residency....
35. [Extendicare] is involved in the ownership, operation, and management of nursing homes throughout the nation, ... either directly or through wholly owned subsidiaries, ... which subsidiary corporations act as agents of [Extendi-care].
36. [Extendicare] controls the operation, planning and management of nursing home facilities [through] ... control of ... marketing, ... human resources management, ... the preparation and filing of documents for ... reimbursement, ... the preparation and filing of state licensure and certification, the provision of legal services ..., financial and accounting control through fiscal policies ..., creation and implementation of clinical policies and procedures, and control over ... payor mix, admissions and discharges, cash collection, net revenue, information technology, and staffing.
37. [Extendicare], in conjunction with its subsidiaries and agents, ... operated and managed the facility through a joint venture with [other defendants] in that:
a. [Extendicare] [and other defendants] ... agreed to set up a scheme whereby [Extendicare] and EHSI would compensate the other Defendants for permitting [them] to improperly utilize the corporate forms of the other Defendants to continue to receive revenue from the unlicensed operation of nursing homes in ... Florida ...;
d. The Defendants’ joint enterprise was ... facilitated through the use of overlapping, interlocking management employees and boards of directors; through transfers of employees within the joint enterprise to various corporate entities without regard to corporate form; and through mixed accounting processes ... without regard to corporate form.
40. [Extendicare] and EHSI, ... conspired with [other defendants] ... to unlawfully profit from nursing home operations in Florida through a ... scheme ... to limit liabilityt ][and] maximize revenues ... from unlicensed operation and management of Florida nursing homes, including [the Nursing Home].
41. [T]he Defendants ... form[ed] a conspiracy ... to [operate] nursing homes in Florida without adequate capital or insurance....
42. In furtherance of this conspiracy, [Extendicare] and EHSI fraudulently represented ... that the Extendicare companies no longer did business in ... Florida as of December 31, 2000. [But they] simply restructured their organization and engaged in joint ventures to continue to reap the profits of unlicensed nursing home operations....
47. ... [Extendicare] and EHSI did not cease their nursing home operations ..., but rather[ ] continued to engage in the unlicensed operation and management of ... nursing facilities ... and to receive revenues ... via the joint enterprises, ... contracts, and other agreements ....
63. Beginning in late 2000, [Extendi-care] [and other defendants] conspired together to create [another corporation] as a separate business entity for the following purposes: a) management of nursing homes ..., and b) entering into contracts with [Extendicare] ... and other subsidiaries ... for the purchase of various goods and services from the ... subsidiaries....
66. [Extendicare] and EHSI could have contracted directly with [another defendant] ... but chose not to do so ... to shield EHSI and [Extendicare] from liability by placing a series of newly formed shell corporations between themselves and the ... owner of the facilities, thereby improperly using the corporate form to shield themselves from ... liability.
67. Through ... joint enterprises, agency relationships, and various agreements and contracts, [Extendicare] and EHSI controlled the operation, planning and management of [the Nursing Home]. ■ The authority ... includes [all allegations in paragraph 36],
70. [Extendicare]' and EHSI engaged in substantial, continuous and direct communication and management of each of its nursing home facilities throughout Florida....
71. [Extendicare] and EHSI by undertaking the direct responsibility for establishing and controlling the operation and management of nursing homes in ... Florida, engaged in substantial, ongoing activity within this state.
72. The actions and business activities in ... Florida of [Extendicare] were ... substantial, continuous and constitute sufficient contacts to subject [them] to personal jurisdiction ... [under] § 48.198 Fla. Stat.... Further, each of the Defendants, by virtue of their numerous and ongoing contacts with Florida and tortious acts in Florida, should reasonably expect to be haled into a Florida court.

Extendieare filed a motion to quash service of process and to dismiss, which was accompanied by the affidavit of Richard Bertrand, Extendicare’s CFO. Bertrand was Extendicare’s CFO since September 2004 and was employed by Extendieare or its subsidiaries for 28 years. Extendieare alleged that it was a foreign corporation, distinct from the other corporate defendants. During James McGillen’s residency, Extendieare did not in Florida: conduct business; own or lease property; maintain an office; own, operate, or control nursing homes; exercise the control described in paragraphs 36 and 67 of the complaint; provide care to or injure James McGillen; commit tortious acts; conspire or act in concert with the other defendants to injure James McGillen; act in any joint enterprise or agency relationship to own, operate, manage, or control nursing homes; or engage in substantial and continuous communication with and management of nursing homes. Extendicare’s motion to quash summarized Extendicare’s corporate relationship with its subsidiaries and affiliates, but argued that its relationship did not provide a basis for personal jurisdiction.

Bertrand stated in his affidavit and deposition that, excluding its downstream subsidiaries’ activities, Extendieare had not conducted business or entered into contracts or agreements for services in Florida. Since January 2001, Extendi-care’s downstream subsidiaries had not operated nursing homes in Florida. McGillen argued below and on appeal that Bertrand’s affidavit did not sufficiently challenge jurisdiction because Bertrand was not an Extendieare employee at all times relevant to the action and, accordingly, lacked personal knowledge to support his affidavit.

Furthermore, McGillen filed a barrage of documents, deposition testimony from other cases involving some of the same defendants, agreements between other defendants, and orders from other cases where Extendieare unsuccessfully challenged jurisdiction. The filings included deposition testimony from other cases in which codefendants and other individuals testified about their interaction with employees of EHSI or unidentified Extendi-care entities based in the U.S., orders from other cases denying Extendicare’s motions to compel arbitration or motions to dismiss, Extendicare’s 2001 annual report and a 2002 press release, and Bertrand’s deposition, which noted he had served as an officer in two of the subsidiaries.

In November 2005, the court heard Ex-tendicare’s motion to quash service and to dismiss. It denied the motion, concluding that Bertrand lacked personal knowledge to support his affidavit because he was not employed at Extendieare at all relevant times. Notwithstanding the affidavit,

[McGillen’s filings] established] ... that over a period of years, [Extendieare] operated nursing ... facilities in Florida; that the Florida operations accounted for significant claims reserves and liability costs incurred by [Extendieare]; and, that [Extendieare] had and maintains budgetary approval for, and continues to derive revenue from, business operations in Florida. [Extendicare’s] activities in Florida and its connections to the state are such that it should have reasonably anticipated being haled into Florida courts.

Extendieare timely appealed.

We review de novo an order finding that personal jurisdiction exists. Enic, PLC v. F.F.S. & Co., 870 So.2d 888, 889 (Fla. 5th DCA 2004); Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1140 (Fla. 2d DCA 2006). In determining the propriety of the exercise of long-arm jurisdiction over a foreign defendant, the court conducts a two-step inquiry. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989); Hilltopper Holding Corp. v. Estate of Cheryl Cutchin, 955 So.2d 598 (Fla. 2d DCA 2007). In the first step, the court considers whether the plaintiff has alleged sufficient jurisdictional facts to subject the defendant to jurisdiction under section 48.193, Florida Statutes. Venetian Salami 554 So.2d at 502; Enic, PLC, 870 So.2d at 889-90; Hilltopper, 955 So.2d at 601. If it has, the court must inquire whether the defendant possesses sufficient minimum contacts with Florida to meet constitutional due process requirements. Venetian Salami 554 So.2d at 500; Enic, PLC, 870 So.2d at 890; Hilltopper, 955 So.2d at 601. This inquiry asks whether the defendant availed itself of the privilege of doing business in Florida or committed acts with an effect in Florida such that it would anticipate being haled into Florida’s courts. Enic, PLC, 870 So.2d at 890; Hilltopper, 955 So.2d at 601.

The parties agree that McGillen’s second amended complaint alleged jurisdictional facts to support long-arm jurisdiction under section 48.193, Florida Statutes (2004). Therefore, McGillen met the first prong of the Venetian Salami inquiry. Once the plaintiff alleges jurisdictional facts to support long-arm jurisdiction, the burden shifts to the defendant to file a legally sufficient affidavit or other sworn proof that contests the essential jurisdictional facts in the complaint. Venetian Salami 554 So.2d at 502; Hilltopper, 955 So.2d at 601. “To be legally sufficient, the defendant’s affidavit must contain factual allegations which, if taken as true, show that the defendant’s conduct does not subject him to jurisdiction.” Hilltopper, 955 So.2d at 601 (emphasis in original). If. the affidavit fully disputes the plaintiffs jurisdictional allegations, the burden shifts back to the plaintiff to prove by affidavit or other sworn proof that a basis for long-arm jurisdiction exists. Venetian Salami, 554 So.2d at 502; Hilltopper, 955 So.2d at 602. If the plaintiffs sworn proof fails to refute the allegations in the defendant’s affidavit and fails to prove jurisdiction, the court must grant the motion to dismiss. Venetian Salami 554 So.2d at 502; Hilltopper, 955 So.2d at 602.

McGillen claimed that Bertrand was not an Extendieare officer throughout McGillen’s residency in the Nursing Home; therefore, his affidavit was not based on personal knowledge. The trial court agreed with McGillen and held that Bertrand’s affidavit was legally insufficient to shift the burden back to McGillen to prove jurisdiction. This was error. McGillen did not refute Bertrand’s allegations, but merely attacked the basis of Bertrand’s knowledge. The Second District rejected this approach in a similar case:

The Estate argues ... it offered evidence in the form of [the corporate representative’s] deposition transcript and that certain statements in the deposition called into question the basis of [the representative’s] knowledge of the allegations in her affidavits. However, the Estate misunderstood its burden. Once [the parent corporations] filed [their representative’s] sworn facially sufficient affidavits that refuted the Estate’s jurisdictional allegations, the question for the trial court was whether, taking the allegations in the affidavits as true, there was a basis for jurisdiction over [the parent corporations]. Because the allegations of [the representative’s] affidavits were to be taken as true, the Estate’s efforts to discredit the affidavits by contesting the credibility of the affi-ant were misplaced.

Hilltopper, 955 So.2d at 603 (emphasis in original).

Bertrand’s affidavit sufficiently refuted the jurisdictional allegations in McGillen’s complaint. McGillen alleged that jurisdiction existed based on Extendicare’s operation and control of the nursing home, its substantial business activity in Florida, its agency relationship with its subsidiaries, and its involvement in a joint venture or conspiracy. Bertrand fully disputed these allegations. See Hilltopper, 955 So.2d at 601; Res. Healthcare, 940 So.2d at 1142. This sufficed to shift the burden back to McGillen to come forward with sworn proof to establish a basis for jurisdiction. See Hilltopper, 955 So.2d at 602; Res. Healthcare, 940 So.2d at 1142.

In its answer brief, McGillen repeats that Bertrand’s affidavit was not sufficient to shift the burden back to McGil-len, but provides little discussion regarding Venetian Salami’s second prong and Ex-tendicare’s contacts with Florida. Allegedly, “the deposition and trial testimony of Extendicare’s own officers [showed] that [it was] very active in the operations of its Florida nursing homes and that it actively lobbie[d] the Florida legislature for tort reform.” Furthermore, Bertrand did not address “Extendicare’s role in operating budget review and approval for the Nursing Home.” McGillen does not elaborate, and neither point is persuasive. McGil-len’s filings did not contradict the jurisdictional allegations in Bertrand’s affidavit.

McGillen submitted deposition transcripts from other cases where it is unclear whether they concerned Extendicare or various Extendicare subsidiaries and affiliates operating in the U.S. The individuals testifying clarified that they either did not know which particular Extendicare entity they were working with, or that they had worked with EHSI when it was conducting operations in the U.S. McGillen offered no evidence to prove that Extendicare operated the Nursing Home in question. See Hilltopper, 955 So.2d at 603.

Throughout its complaint, McGillen emphasized that, inter alia, Extendicare acted through its subsidiaries or agents and that it established corporations as buffers between it and the Nursing Home. However, McGillen offered no evidence to show that Extendicare controlled its subsidiaries to the extent that an agency relationship existed that would justify long-arm jurisdiction. See Hilltopper, 955 So.2d at 603. Without more, McGillen’s allegations concerning Extendicare’s budgetary role or the fact that Bertrand served as an officer in some of Extendicare’s subsidiaries did not show the “high and very significant” degree of control over internal day-to-day operations that is required to support a finding that personal jurisdiction is appropriate under an agency theory. See Enic, PLC, 870 So.2d 888, 891-92 (Fla. 5th DCA 2004). More important, though the complaint invoked agency allegations, McGillen explicitly waived this issue on appeal.

McGillen presented no evidence of Extendicare’s “direct” actions, except that it conducted budget reviews and eventually collected revenue from subsidiary corporations. The material submitted by McGil-len established merely that Extendicare was a parent corporation, but ownership of a subsidiary corporation by an out-of-state parent corporation, without more, does not support a finding that long-arm jurisdiction exists. See Res. Healthcare, 940 So.2d at 1143; Walt Disney Co. v. Nelson, 677 So.2d 400, 403 (Fla. 5th DCA 1996). This is so even where the parent was disclosed on state licensure filings or where the parent also performed accounting and payroll functions for the subsidiary. See Greystone Tribeca Acquisition, L.L.C. v. Ronstrom, 863 So.2d 473, 476 (Fla. 2d DCA 2004); Qualley v. Int’l Air Serv. Co., 595 So.2d 194, 196 (Fla. 3d DCA 1992). The court erred by finding that long-arm jurisdiction existed.

Finally, we reject McGillen’s primary argument — that Extendieare is barred by res judicata or collateral estop-pel from challenging personal jurisdiction because other courts, in cases involving different plaintiffs and injuries, denied Ex-tendicare’s motions to dismiss. The other cases involved different parties and different causes of action. See Topps v. State, 865 So.2d 1253, 1255 (Fla.2004) (“The doctrine of res judicata applies when four identities are present: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.”). Nor does judicial estop-pel apply; Extendicare’s claim of lack of jurisdiction was not inconsistent with a claim successfully maintained in another judicial proceeding. See, e.g., Grau v. Provident Life & Accident Ins. Co., 899 So.2d 396, 400 (Fla. 4th DCA 2005).

Bertrand’s affidavit contained allegations that, if taken as true, contradicted McGillen’s jurisdictional allegations. McGillen failed to offer proof that proved jurisdiction or refuted Bertrand’s allegations, and the court erred by denying the motion to dismiss.

Accordingly, we REVERSE and REMAND for the trial court to dismiss the complaint as to Extendieare.

PALMER and MONACO, JJ., concur.


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    Carl Thomas NICKS, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL, ETC., Appellee.
    No. 5D06-1927.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.

      Diane S. Perera and James C. Kellner, of Diane S. Perera, P.A., Miami, for Appellant.
    Jennifer A. Tschetter, Tallahassee, for Appellee.
   LAWSON, J.

Carl Thomas Nicks appeals from a final administrative order of the Construction Industry Licensing Board. The order granted the Department of Business and Professional Regulation’s motion to find that Nicks had waived his right to dispute the material facts alleged in the Department’s complaint against him by failing to request a formal hearing within twenty-one days after receiving the complaint. Relying on its finding of waiver, the Board also found that Nicks had violated various provisions of section 489.129, Florida Statutes, and revoked Nicks’ license as a certified general contractor. We agree with Nicks that the doctrine of equitable tolling may apply in this case to preclude a finding of waiver. Therefore, we reverse the final order and remand this case to the Board for further proceedings consistent with this opinion.

The facts underlying the Department’s complaint relate to a roofing job that Nicks contracted to perform on a commercial building in West Melbourne, Florida, on October 6, 2004. The Department alleges that Nicks completed about fifty percent of the roof in an incompetent and negligent manner, laying roofing material over wet substrate and rotting boards. When city inspectors ordered that the roof be stripped, and all roofing materials re-installed on dry substrate, it is alleged that Nicks refused to refund the $15,000 he had already been paid, refused to continue work unless he was paid for the additional work required to correct his own substandard performance, and then abandoned the job when the owner would not agree to pay him more money to fix his own mistakes. Thereafter, according to the complaint, Nicks ignored the owner’s numerous efforts to reach him. If true, these facts would support the disciplinary action ordered by the Board, particularly in light of Nicks’ disciplinary history. Nicks, however, disputes the facts alleged by the Department.

On February 11, 2005, the Department notified Nicks that it had received a complaint regarding the roofing job, and that he had a right to provide information in response. The notice also explained that the investigation would remain confidential unless probable cause was found to pursue an administrative action against Nicks’ license. In response, on February 18, 2005, Nicks sent the Department documents indicating his view that the matter was nothing more than a dispute over the scope of work required by his contract. According to Nicks, his contract only required that he replace a limited number of insulation boards. When the inspector ordered that all insulation boards be replaced, he told the owner that this would increase the scope of work, which would require additional consideration. According to Nicks, he remained ready and willing at all times to strip and replace the roofing, and finish the job, if the owner would agree to compensate him for the additional insulation replacement that was not part of his original contract price.

On August 25, 2005, the Department served Nicks with its administrative complaint, along with a form cover letter and election of rights form. The cover letter explained that Nicks had three options: (1) chose not to dispute the facts alleged in the complaint, and request a hearing to present evidence only related to “conclusions of law and the penalty for violation;” (2) dispute the alleged facts “and request a hearing before an administrative law judge;” or (3) waive the right to either type of hearing “and put yourself completely at the Board’s discretion.” The letter then explained that:

You must respond by selecting one of the options on the enclosed Election of Rights form, and forwarding the executed Election of Rights form to this office within 21 days of your receipt of this letter. Failure to respond within the 21 day period may be deemed a waiver of the rights outlined above, and the Department may proceed against you by default, (emphasis in original)

It is undisputed that Nicks did not return the election of rights form. However, Nicks claims to have called the Department on September 7, 2005, within the twenty-one day period, to inquire as to whether his prior written submission to the investigator would serve as a sufficient response to contest the facts of the complaint. According to Nicks, a Department employee told him that the documents submitted during the investigation would suffice, and that he therefore did not need to return the election of rights form in order to contest the facts alleged in the complaint. Claiming reliance on this advice from the Department, Nicks did not return the form.

Prior to his Board hearing, Nicks filed a response to the Department’s motion to find waiver, alleging these facts and that they were sufficient to establish equitable tolling. “Generally, the tolling doctrine has been applied when the plaintiff has been mislead or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” Machules v. Dep’t of Admin., 523 So.2d 1132, 1134 (Fla.1988). Nicks claims that he was lulled into inaction through a combination of language in the Department’s form letter and the Department employee’s advice. Given that Nicks had responded to the initial complaint with a written submission that contests the facts alleged against him, and the less-than-conclusive language of the Department’s form letter (simply stating that failure to respond “may” be deemed a waiver of rights), we find that equitable tolling would be available to extend the 21-day deadline if Nicks can establish reasonable reliance upon a clear and affirmative representation to him that his previous submission preserved his right to contest factual allegations in the Department’s complaint.

In its brief, the Department asserts a number of reasons why it believes that the factual allegations in support of Nicks’ equitable tolling claim lack credibility. However, it is not our place to make credibility determinations or factual findings regarding these issues. Below, the Board granted the motion to find waiver without offering an evidentiary hearing, and even before allowing argument from Nicks’ attorney. After voting to find a waiver, Nicks’ counsel made some arguments in support of Nicks’ position. However the Board’s chairman repeatedly reminded counsel that the Board had already voted on the issue, before allowing her to speak. Because the resolution of Nicks’ equitable tolling claim requires credibility and factual determinations, we must remand this matter to the Board for an evidentiary hearing. See § 120.68(7)(a), Fla. Stat.; Brown v. State, Dep’t. of Financial Services, 899 So.2d 1246 (Fla. 4th DCA 2005). If the Board (or Department) elects not to afford Nicks a hearing on his equitable tolling claim, it may simply accept his factual allegations as true, and afford him a hearing to contest the factual allegations of the administrative complaint.

REVERSED AND REMANDED.

TORPY and EVANDER, JJ., concur.

      . More specifically, these facts would support the Board's findings that Nicks violated section 489.129(l)(m) by committing incompetency or misconduct in the practice of contracting; violated section 489.129(l)(n), Florida Statutes, by committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property; and, violated section 489.129(1)0, Florida Statutes, by abandoning a construetion project by terminating the project without just cause. Nicks argues that even if he waived his right to contest the factual allegations of the administrative complaint, the Department was still required to prove those facts with competent, substantial evidence before it could take action against his license. In making this argument, Nicks cites to Scott v. Dep't of Professional Regulation, 603 So.2d 519 (Fla. 1st DCA 1992). We reject Nicks’ argument. When a party waives the right to challenge the factual allegations of an administrative complaint, either by requesting an informal hearing pursuant to section 120.57(2), Florida Statutes, or by failing to respond to the complaint at all, the facts of the complaint are deemed to be admitted. See Fla. Admin. Code R. 28-106.111(2) & (4); § 120.569(2)(c); Autoworld of America Corp. v. Dep’t of Highway Safety, 754 So.2d 76, 77 (Fla. 3d DCA 2000) (recognizing that when the facts alleged in the administrative complaint are not disputed "[t]his leaves only conclusions of law to be drawn as to whether the admitted facts constitute a violation of the statutes as charged and penalties to be imposed”); see also Hime v. Fla. Real Estate Comm’n, 61 So.2d 182, 183 (Fla.1952) (recognizing that "the rule appears to be general that where the information specifies the charge and no defense is offered and a default is taken, the order of suspension may not require a finding of fact to support it”). The only issues remaining after a waiver are the conclusions of law to be drawn (i.e., whether the admitted facts constitute a violation of the statutes as charged), and the penalties to be imposed.

      . Section 489.129(1), Florida Statutes, provides that the Board may take disciplinary action, including revocation of the contractor's license, if the licensee is guilty of any subsection, including l(m), (n), and (j).


author: PER CURIAM.

text:
    Michael D. WALTON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-5699.
    District Court of Appeal of Florida, First District.
    May 8, 2007.
    Michael D. Walton, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of certiorari, Michael D. Walton, an inmate in the custody of the Florida Department of Corrections (DOC), challenges an order (1) denying his petition for a writ mandamus by'which he sought relief from disciplinary action taken against him by DOC, and (2) denying his petition to remove a lien on his prison trust account. We deny the petition as to the denial of mandamus relief for the disciplinary action without further comment, but grant the petition as to the lien.

Petitioner argues that the circuit court erred when it denied petitioner’s petition to remove a lien placed on his prison trust account for the purpose of satisfying court costs. While the circuit court acknowledged that a lien could not be placed on a petitioner’s account on the authority of section 57.081, Florida Statutes, because petitioner’s circuit court proceeding challenged DOC action which caused a loss of gain-time and hence affected petitioner’s sentence, see Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), the circuit court held that a lien could be imposed on the authority of general indigency statutes, sections 57.081 and 27.52, Florida Statutes (2004). However, this court has rejected the argument that a lien may be placed on a prisoner’s trust account by operation of the general indigency statute. Wagner v. McDonough, 927 So.2d 216, 217 (Fla. 1st DCA 2006). We note that the clerk of the circuit court certified that appellant was indigent pursuant to sections 57.081 and 27.52. See Schmidt v. McDonough, 951 So.2d 797 (Fla.2006).

Accordingly, the petition for certiorari is granted in part and denied in part, the cause is remanded, and the order establishing a lien on petitioner’s inmate trust account is quashed with the direction that any monies collected pursuant to that lien be restored to petitioner.

BROWNING, C.J., WOLF, and VAN NORTWICK, JJ„ concur.


text:
    PROFILE INVESTMENTS, INC., Appellant, v. DELTA PROPERTY MANAGEMENT, INC., a Florida corporation, and CIT Lending Services, a Delaware corporation authorized to do business in Florida, f/k/a AT & T Commercial Finance Corp., Appellees.
    No. 1D07-0187.
    District Court of Appeal of Florida, First District.
    May 8, 2007.
    William S. Graessle, Jacksonville, for Appellant.
    John R. Hargrove of Gordon Hargrove & James, P.A., Ft. Lauderdale; Robert M. Quinn of Carlton Fields, P.A., Tampa; and Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 5, 2007, the Court has determined that the order entered by the lower tribunal on December 14, 2006, is not appealable as a nonfinal order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). See Cooksey v. Linton, 924 So.2d 919 (Fla. 1st DCA 2006); Marina Bay Hotel and Club, Inc. v. McCollum, 733 So.2d 1133 (Fla. 4th DCA 1999). Although the nonfinal order on appeal determined that the appellant’s tax deed is invalid and of no legal effect, this order does not directly determine the immediate right to possession of property. Therefore, this Court lacks appellate jurisdiction to review the order on appeal at this time.

DISMISSED.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Randy Bryan SCHLEGER, Appellant, v. Alexandra Marie STEBELSKY, Appellee.
    No. 4D06-2666.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Rehearing Denied June 20, 2007.
    Meah Rothman Tell of Meah Rothman Tell, P.A., Coral Springs, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Appellant, Randy Bryan Schleger, appeals the trial court’s order denying his Rule 1.540(b) motion to vacate the order denying his motion for rehearing. We agree with Schleger that the trial court abused its discretion in failing to hold an evidentiary hearing on his motion to vacate, and we therefore reverse and remand for an evidentiary hearing to provide Schleger the opportunity to present evidence as to whether the appellee, Alexandra Marie Stebelsky, committed fraud upon the court.

Schleger conceived a child with Stebel-sky out of wedlock, and the child was born on August 16, 2004 in New York. Stebel-sky filed a paternity petition in New York in 2004, requesting that the court establish paternity, and upon entry of the order of filiation, enter an order of support for the child. The paternity petition did not address custody. Stebelsky also filed a separate support petition in New York requesting support from Schleger but made no request for any custody determination. Schleger admitted the allegations of the paternity petition, and an order of filiation was entered in New York in December 2004. In April 2005, the New York court entered an order of support, ordering that Schleger is the “non-custodial party” and requiring him to pay a specified amount per month in child support.

Thereafter, on December 12, 2005, Schleger, who is a resident of Florida, filed a petition to determine paternity and for related relief, including child custody, parental responsibility, and visitation (petition for visitation) in Florida. This petition alleged that both parents resided in Boca Raton, Florida, and requested that the court award shared parental responsibility and that Stebelsky be the primary residential parent with Schleger having visitation every other weekend plus two days during the week. The petition acknowledged that paternity had already been established as a matter of law. Ste-belsky was served by substitute service at her mother’s residence in Boca Raton, Florida. However, Stebelsky filed a motion to dismiss and quash service of process of the petition for visitation, alleging that New York, not Florida, is the home state of the minor child and Stebelsky, and therefore, the Florida trial court lacked jurisdiction.

At the hearing on the motion to dismiss and quash service of process, Stebelsky testified that she had continuously resided in New York for the past twenty-eight years and introduced copies of the lease agreements for her rental properties in New York. Schleger, however, introduced evidence showing that Stebelsky opened a bank account in May 2005 and her address as well as her son’s address listed on the account was Boca Raton, Florida. In addition to bank statements, evidence was introduced showing that Stebelsky used the Boca Raton address when enrolling her son in Gymboree classes in Boca Raton from May 2005 to December 2005. Evidence also showed that Stebelsky joined a gym in Boca Raton in December 2004, and that she used the gym from January 2005 until September 2005. Finally, a psychiatrist in Boca Raton testified that he saw Stebelsky frequently in Boca Raton from April 2005 to January 2006, and that it appeared to him that she lived with her son in Boca Raton at her parent’s property-

The trial court concluded that Stebelsky lived in Boca Raton at her mother’s residence at the time she was served with Schleger’s petition for visitation in December 2005 and denied her motion to quash service of process. The trial court also found Stebelsky’s testimony not credible about where she lived at the time of service and determined that the lease for the New York property was fabricated because there was a revision date after the date the leases were purportedly signed. However, the trial court granted her motion to dismiss for lack of jurisdiction, finding that a paternity action was filed in New York in 2004 and was still pending, and therefore, the Florida trial court lacked jurisdiction over the petition for visitation filed in December 2005. It was not until after the Florida trial court dismissed for lack of jurisdiction that Stebel-sky filed a custody petition in New York in April 2006.

Schleger moved for rehearing and asked the Florida court to communicate with the New York family court, or alternatively, that the New York court relinquish jurisdiction to the Florida court. Following a hearing, the Florida trial court denied the motion for rehearing and the motion to communicate with the family court in New York.

Schleger then filed a motion to vacate the order denying his motion for rehearing, arguing that Stebelsky, at the hearing on the motion for rehearing, failed to provide the Florida trial court with a copy of the paternity and child support petitions filed in New York in 2004, that she failed to provide the Florida trial court with any pleading filed in New York prior to December 12, 2005 which raised the issue of child custody or visitation, and that she failed to advise the Florida trial court that there was no custody determination in New York prior to December 12, 2005. Schleger also argued that the mother failed to advise and provide the Florida trial court with a copy of the April 2006 petition for custody which Stebelsky filed for the first time in New York after Schleger’s petition for visitation was filed in Florida on December 12, 2005. Schleger further argued that Stebelsky resided in Florida for more than six months before he filed his petition for visitation, and therefore, the Florida court had jurisdiction over the child and parents. The trial court denied the father’s motion to vacate without holding an evidentiary hearing.

Schleger appealed the order denying his motion to vacate, arguing that the trial court abused its discretion in failing to grant him an evidentiary hearing on his motion to vacate. This Court permitted the appeal to proceed pursuant to Florida Rule of Appellate Procedure 9.130(a)(5) as an appeal of an order entered on a motion filed under Rule 1.540.

We agree with Schleger that the trial court abused its discretion in failing to hold an evidentiary hearing on his motion to vacate. “A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief.” Smith v. Smith, 903 So.2d 1044, 1045 (Fla. 5th DCA 2005).

In his motion to vacate, Schleger alleged that Stebelsky made numerous misrepresentations to the trial court in terms of the law and the facts of the case. We conclude that the trial court should have granted an evidentiary hearing on Schleger’s claims, and its failure to do so was an abuse of discretion. Thus, the trial court’s order denying Schleger’s motion to vacate is reversed and remanded for an evidentia-ry hearing on Schleger’s motion to vacate.

Reversed and Remanded.

GUNTHER, STONE and FARMER, JJ., concur.


text:
    Christopher TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4495.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.

      Christopher Taylor, South Bay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Christopher Taylor appeals the denial of his rule 3.850 motion. We conclude that one of the claims is legally sufficient and not refuted by the attached records. In Claim Four, Taylor alleged that counsel provided ineffective assistance by failing to object to several errors on Taylor’s sentencing scoresheet. He alleged that he was prejudiced because he would have received a significantly lower sentence under the correct scoresheet. He also alleged that he would not have entered a plea to his charges, but would have elected to go to trial.

The scoresheet was not included in the record on appeal, and the attached records do not refute his claim. Contrary to the state’s argument on appeal, the alleged scoresheet errors could not be raised in a rule 3.800(a) motion, because the sentence Taylor received could have been imposed notwithstanding the alleged errors. See Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006), rev. granted, 948 So.2d 758 (Fla.2007).

When Taylor entered an open plea in this case, the trial judge stated that he did not intend to sentence him above the lowest permissible sentence on the scoresheet. The record does not show that the judge would have imposed the same sentence absent the alleged errors. State v. Anderson, 905 So.2d 111 (Fla.2005).

We reverse and remand for an eviden-tiary hearing on Claim Four or attachment of portions of the record that conclusively refute Taylor’s claim.

POLEN, GROSS and TAYLOR, JJ., concur.


author: FARMER, J.

text:
    Leonidas PAHIAKOS, Appellant, v. Douglas F. MARTIN, Appellee.
    No. 4D06-1543.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.

      Carl F. Schoeppl of Schoeppl & Burke, P.A., Boca Raton, for appellant.
    David K. Friedman of Weiss Handler Angelos & Cornwell, P.A., Boca Raton, for appellee.
    Peggy A. McGovern and Randy R. Dow of Page Mrachek Fitzgerald & Rose, P.A., West Palm Beach, for Amicus Curiae Micro Surgery, Inc.
   FARMER, J.

A judgment creditor made a loan to appellee and his related corporations, evidenced by a promissory note. When debtors defaulted, the creditor sued them on the instrument in the Circuit Court in Broward County and, after entry of a default, obtained a default final judgment. The judgment creditor then levied execution against certain household goods, furnishings and other personal property of debtor Martin. Before the Sheriff could sell the seized property at a Sheriffs sale, all defendants filed a motion to quash service of process and for relief from the default.

While these motions were pending, defendant Martin filed for relief under chapter 11 of the Bankruptcy Code. See 11 U.S.C. § 301 (2005). The filing effected an automatic stay of any sale of the goods seized by the levy and all state court proceedings. 11 U.S.C. § 362(a)(1), (2) (2005) (petition under § 301 operates as a stay against the enforcement, against the debt- or or against property of the estate, of a judgment obtained before the commencement of the case under title 11, U.S.C.). The seized property was then stored by the Sheriff. The judgment creditor filed a proof of claim for $835,882 in the bankruptcy case based on the state court judgment. Several months after filing, the chapter 11 case was converted to a case under chapter 7 (liquidation), and a trustee was appointed. The trustee was then substituted for defendant Martin in the state court proceedings as the real party in interest.

Ultimately the bankruptcy trustee and the creditor reached a settlement agreement as to the claim and the property seized under the levy in the state court proceedings. Their agreement expressly provides that the defenses of defendant Martin to the state court action on the promissory note are “property of the bankruptcy estate by virtue of 11 U.S.C. § 541(a)(1).” Their agreement stipulates that upon approval by the Bankruptcy Court, the trustee would withdraw the motions for relief from the default and to quash service of process “with prejudice”; the seized property would then be sold at a Sheriff’s sale; and the net proceeds (after payment of the Sheriffs costs) would be divided equally between the trustee and the judgment creditor. The amount received by the creditor would be applied toward satisfying and, in turn reducing his bankruptcy claim. The trustee stipulated that as reduced by any sale proceeds the claim would be allowed as an unsecured claim for the net amount. This agreement was formally approved by the Bankruptcy Court. The trustee then filed a notice in the state court withdrawing the motions with prejudice.

Later, the judgment apparently not being fully satisfied, Martin filed a motion in the state court for relief from the judgment, arguing that process was not properly served on him and that the resulting judgment was therefore void. The state court judge held a trial on the motion, taking testimony from several witnesses, including the process server. The court held that service was invalid and granted relief from the judgment. We reverse.

It is clear from the above recitation of the background facts that the defense of invalid service was competently waived in the bankruptcy stipulation, which was approved by that court. When Martin submitted himself to the jurisdiction of the Bankruptcy Court, the defenses he had available to the final judgment became part of his bankruptcy estate. See 11 U.S.C. § 541(a)(1) (2005). With the Bankruptcy Judge’s approval, his Trustee had the authority to waive the defense of service of process in the agreement. See 11 U.S.C. § 554(a) (2005) (after notice and hearing, the trustee may abandon any property of the estate that is of inconsequential value and benefit to the estate). When the trustee filed the notice of the waiver of the defenses in the state court, the objection to service of process was waived and forever eliminated. The words “with prejudice” in the agreement mean that the waiver did not allow defendant Martin to resurrect the defense of insufficiency of service of process.

Reversed with instructions to reinstate final judgment.

STONE and MAY, JJ., concur.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Aaron Tyrone LEE, Appellee.
    No. 5D06-2993.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellee.
   GRIFFIN, J.

The State of Florida appeals the trial court’s order suppressing evidence relating to the arrest of Aaron Tyrone Lee [“Defendant”]. We reverse.

On February 7, 2005, at about 10:00 p.m., Deputy Sheriff Gould was patrolling a roadway in the Melbourne area. When he was about forty to fifty feet away from Defendant’s car, Deputy Gould noticed that the tag light on the 1998 Plymouth Neon, driven by Defendant, was not working. Deputy Gould turned his headlights off briefly, and confirmed that the tag light was out. Deputy Gould then initiated a traffic stop, and Defendant pulled his car over. Takesha Perry, Defendant’s girlfriend, was in the car with Defendant at the time.

As Deputy Gould approached Defendant’s car, he immediately detected the odor of cannabis. When he brought the odor to Defendant’s attention, Defendant explained that he had just finished smoking cannabis and had smoked it inside the vehicle.' A second Sheriffs deputy, Deputy Richter, arrived at the scene. Based on the smell of the cannabis, Deputy Richter searched Defendant’s car. Inside, Deputy Richter found both a container and a clear plastic bag with crack cocaine in them. Defendant said that the cocaine belonged to him.

Deputy Gould arrested Defendant, and the State charged Defendant with possession of cocaine with intent to sell or deliver, a second-degree felony, and use or possession of drug paraphernalia, a first-degree misdemeanor. Defendant subsequently filed a motion to suppress all evidence of Deputy Gould’s observations and investigation. The trial court heard testimony and arguments with respect to Defendant’s motion to suppress and granted the motion.

At the hearing, Deputy Gould testified that the reason he stopped Defendant was that he observed, from forty to fifty feet away, that Defendant’s tag light was not functioning. He explained:

[Defense Counsel]: After you made the stop, did you ask Mr. Lee about the tag lights?
[Deputy Gould]: I believe I did.
[Defense Counsel]: Did you check the tag light after the stop?
[Deputy Gould]: I checked it before I stopped. I turned the headlights off to indicate that it was still dark, and it was.
[Defense Counsel]: After the stop, I mean, did you go back and check the tail light again?
[Deputy Gould]: No, it wasn’t working then. I didn’t feel I needed to check it again.
[Defense Counsel]: You issued him a citation for the tail light?
[Deputy Gould]: Yes, sir. I did.

Takesha Perry also testified at the hearing. She said that she inspected the tag light later on the evening of the stop and found that the tag light functioned. She took pictures of the tag light as evidence. These pictures were admitted, but were of limited value because of their poor quality.

In support of his motion, Defendant argued that Deputy Gould should have, but did not, check to see whether Defendant’s tag light functioned from a distance closer than forty to fifty feet. Since he failed do this, Deputy Gould’s testimony that the tail light did not work was unreliable, and the trial court should favor the testimony from Perry indicating that the tail light functioned.

While maintaining that the light did not work, the State also argued that the validity of the stop did not depend on whether the light worked. The stop was valid if the Deputy had a reasonable suspicion that a traffic infraction had occurred. The odor of burnt or burning cannabis detected as Deputy Gould approached the driver provided the Deputy probable cause to search the vehicle.

In its order granting Defendant’s motion to suppress, the trial court found:

6. There was no evidence or testimony presented that the tag was not “clearly legible” at 50 feet, and the evidence is conflicting as to whether the tag light was in fact operating. Deputy Gould testified that he could not see it when he was driving “40 to 50 feet” behind the vehicle, but Ms. Perry testified it was operative. An inability to see the light at 40 to 50 feet does not mean it is inoperative. It may justify an “inspection stop” under sec. 816.610, but such an inspection was not performed, as Deputy Gould did not check the operation of the tag light once the Defendant had pulled over. If it was operable, he still could have paced out 50 feet to see if the tag was “clearly legible.” Without determining that there was, in fact, a violation of law justifying the stop, further detention was not permissible. Even assuming arguendo that the tag would not have been “clearly legible” at 50 feet at 10:15 p.m. if the tag light was not visible at 50 feet, whether operating or not, there was no testimony or evidence presented as to how Deputy Gould estimated the distance between his vehicle and the Defendant’s vehicle, or as to Deputy Gould’s proficiency in determining distances, and there were no in-court demonstration or any proffer of his ability in that regard. While the Court does not doubt Deputy Gould’s truthfulness, his failure to perform the simple steps of verifying the operation of the tag light and measuring out the distance of visibility if operable, does call into question the accuracy and credibility of his estimations. Violations of laws cannot be based on estimations and suppositions, particularly when simple investigatory efforts that take little time and effort are not performed.
6. The Court finds based on the foregoing that there is insufficient competent evidence to justify the stop and detention of the Defendant.

(citations omitted) (emphasis added).

Although the trial court concluded that the failure to verify the light’s function after stopping the vehicle impaired the “accuracy and credibility” of Deputy Gould’s estimations, we conclude it does not matter and, accordingly, we reverse.

As a general matter, the decision to stop an automobile is reasonable for purposes of the Fourth Amendment where the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); see also Holland v. State, 696 So.2d 757, 759 (Fla.1997); Jordan v. State, 831 So.2d 1241, 1242-3 (Fla. 5th DCA 2002); State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001). Probable cause exists “where the facts and circumstances within an officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.” Stone v. State, 856 So.2d 1109, 1111 (Fla. 4th DCA 2003) (quoting State v. Byham, 394 So.2d 1142, 1143 (Fla. 4th DCA 1981)). Deputy Gould’s observation that the light was not working, from forty to fifty feet away, was sufficient to warrant a man of reasonable caution to believe that the taillight was, in fact, inoperable and to stop the vehicle.

A circumstance similar to the facts of this case appears in Zeigler v. State, 922 So.2d 384 (Fla. 1st DCA 2006). In that case, an officer stopped the defendants’ vehicle “because he was unable to see the vehicle’s license tag, in violation of section 320.13(4), Florida Statutes (2003).” Id. at 385. However, as the officer “was approaching the stopped vehicle, he saw that a temporary tag was properly displayed.” Id. The officer then approached the defendants’ vehicle and asked to see the defendants’ identification. One of the defendants rolled down his window and the officer, almost immediately, smelled burnt marijuana. The officer then detained the defendants. A search of the vehicle revealed drugs, drug paraphernalia and cash. The defendants argued that the evidence from the search should have been suppressed because it was improper for the officer to ask for their identification after he had ascertained that the license tag was properly displayed. The court held:

[The officer] had the legal authority to make personal contact with [Defendants] and to be in a position to smell the marijuana. An officer may use his sense of smell from a place where he may lawfully be to develop probable cause for a detention. Once Officer Brownfield smelled the marijuana, he was entitled to detain [Defendants]. Although Officer Brownfield impermissi-bly asked for [Defendants’] identification, the trial court correctly determined that the contraband was not required to be suppressed. Under the inevitable discovery rule, when evidence is obtained through the result of unconstitutional police procedures, the evidence will still be admissible if it would have been discovered through legal means. Here, the trial court determined that Officer Brownfield smelled marijuana when he went to [Defendants’] stopped vehicle. Had Officer Brownfield immediately explained the reason for the stop when he made personal contact with [Defendants], rather than first asking [Defendants] for their identification, he would have still smelled marijuana and thus developed probable cause to detain [Defendants].

Id.; see also State v. Diaz, 850 So.2d 435, 440 (Fla.2003) (“Having verified the total validity of Mr. Diaz’s temporary tag, the sheriffs deputy could lawfully make personal contact with Mr. Diaz only to explain to him the reason for the initial stop.”); State v. Reed, 712 So.2d 458, 460 (Fla. 5th DCA 1998).

Deputy Gould’s observation that Defendant’s taillamp was not operating justified the traffic stop under section 316.221(2), and whether or not the deputy further inspected the vehicle after stopping Defendant, it was lawful for him to approach Defendant.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.

      . Section 316.221, Florida Statutes (2005) provides:
      (2) Either a taillamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear....
      (3) A violation of this section is a noncriminal traffic infraction, punishable as a non-moving violation as provided in chapter 318.

      . In relevant part, section 316.610, Florida Statutes (2005), provides:
      It is a violation of this chapter for any person to drive or move ... on any highway any vehicle ... which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter, or which is equipped in any manner in violation of this chapter ....
      (1) Any police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of the vehicle to stop and submit the vehicle to an inspection and such test with reference thereto as may be appropriate.

      . The Supreme Court noted that, in principle, “every Fourth Amendment case, since it turns upon a reasonableness’ determination, involves a balancing of relevant factors.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, the court said:
      Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing” analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests — such as, for example, seizure by means of deadly force, unannounced entry into a home, entry into a home without a warrant, or physical penetration of the body.

        Id. at 818, 116 S.Ct. 1769 (citations omitted).


author: MONACO, J.

text:
    James SAULLO, as Personal Representative, etc., Appellant, v. Jessie J. DOUGLAS and Dart Transit Company, Appellees.
    No. 5D06-817.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.

      Ross Bennett Gampel of Klemick and Gampel, P.A., Miami, and Steven M. Goldsmith, of Steven M. Goldsmith, P.A., Boca Raton, for Appellant.
    David R. Evelev, Griffith J. Winthrop, and Julianne J. Flynn, of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Appellee, Dart Transit Company.
    No Appearance for Appellee, Jessie J. Douglas.
   MONACO, J.

James Saullo, as personal representative of the Estate of James J. Saullo, seeks review of the final order of summary judgment granted in favor of the appellee, Dart Transit Company, one of the of two defendants below. Because there are factual issues concerning the liability of Dart that are still outstanding, we reverse.

The essentially uncontested facts reflect that shortly before the incident that gave rise to this suit occurred the other defendant below, Jessie Douglas, a professional truck driver, was driving a tractor-trailer rig through central Florida. The tractor was owned by Mr. Douglas, but leased to Dart, and the trailer was fully owned by Dart. Pursuant to the operating agreement between Dart and Mr. Douglas, which defined the driver’s status as that of an independent contractor, Mr. Douglas agreed to lease the tractor permanently to Dart. Because Dart was an interstate carrier subject to federal regulation, the operating agreement was drafted in accordance with the requirements of federal regulations. Under the standard contract Mr. Douglas agreed to drive the tractor exclusively to haul freight in trailers owned by Dart.

While asleep at a rest area on one such trip in which Mr. Douglas was transporting freight for Dart, Mr. Douglas received a call from his brother, who related that his car was stuck in the mud not far from where Mr. Douglas was resting. He asked Mr. Douglas to help him remove it, and Mr. Douglas agreed to do so. When Mr. Douglas arrived at a point near to his brother’s location, he parked and detached the trailer in the far right-hand lane of a four-lane roadway, and directed his brother’s girlfriend to park her car behind the trailer and to activate the automobile’s emergency flashers. He did so because the trailer did not have operational lights when detached from the tractor. Mr. Douglas did not take the precaution of setting emergency flares or safety triangles around the trailer. After detaching the trailer, Mr. Douglas drove the tractor down the road to help with his brother’s vehicle.

James J. Saullo was killed in the early morning hours purportedly when he swerved his automobile to avoid the trailer and the automobile parked on the roadway. Mr. Saullo had been drinking and playing pool at a bar, and was on his way to a friend’s apartment at the time of the incident. When he came upon the vehicles, he apparently swerved sharply to avoid a collision, lost control of his car, and slammed into a tree. He was legally intoxicated and not wearing a seatbelt at the time of the collision.

The personal representative of Mr. Saul-lo’s estate filed a wrongful death action against Mr. Douglas and Dart. Dart moved for summary judgment. The Estate opposed the motion, arguing, first, that the federal regulations that govern interstate trucking imposed liability on Dart for the actions of Mr. Douglas, and alternatively, that Dart was liable by virtue of the application of respondeat superi- or to the dangerous instrumentality doctrine. The trial court, however, granted summary judgment in favor of Dart, holding that Dart was not liable for the actions of Mr. Douglas under either theory. The Estate appealed.

A resolution of this case requires us first to examine the federal regulations governing interstate tractor-trailer trucks. We begin with the enabling legislation.

In 1956, Congress expanded the authority of the Interstate Commerce Commission (“ICC”), to permit the agency to regulate more closely the lease of motor vehicles used in interstate commerce. R. Clay Porter & Elenore Cotter Klinger, The Mythology of Logo Liability: An Analysis of Competing Paradigms of Lease Liability for Motor Carriers, 33 TRAnsp. L.J. 1, 5 (2005) [hereinafter Logo Liability ]. Although the wording of the enabling statute has changed slightly since 1956, the substance of the statute remains the same today. Of particular relevance to the present controversy, the current version of the statute, 49 U.S.C. 14102 (2007), authorizes the Secretary of Transportation to require an interstate motor carrier that uses motor vehicles it does not own to transport property under an agreement with another party to “have control of and be responsible for operating those motor vehicles in compliance with requirements prescribed by the Secretary on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carrier.” 49 U.S.C. 14102(a)(4). The enabling legislation, however, does not specifically address the liability of a carrier that chooses to use nonowned tractors.

One of the primary reasons Congress expanded the province of the Secretary, and thus, the ICC, was “to protect the public from the tortious conduct of judgment-proof operators of interstate motor carrier vehicles,” by requiring motor carriers “to assume full direction and control of leased vehicles.” See Price v. Westmoreland, 727 F.2d 494, 496 (5th Cir.1984). A fair reading of the leasing regulations yields the notion that they were specifically intended to prevent motor carriers from avoiding responsibility for the negligence of their drivers through the use of an owner-operator relationship. Logo Liability, 33 TRAnsp. L.J. at 6. The ICC effectuated this purpose by promulgating leasing regulations requiring, among other things, that leases be in writing and “provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement .... ” (emphasis added). See 49 C.F.R. 1507.4 (1974). Moreover, the regulations require motor carriers that use leased equipment to provide the lessor with a placard that contains information identifying the motor carrier for whom the equipment is being operated. Logo Liability, 33 Transp. L.J. at 6 (citing 49 C.F.R. 390.21 (2005)). The placard is usually affixed to the door of the tractor. Before the regulations were amended in 1986, it was the motor carrier’s responsibility to retrieve the placards when the lease terminated. Id. at 6 (citing 49 C.F.R. 1507.4(d)(1) (1974)).

The leasing regulations gave birth to a judicially-created doctrine called “logo liability.” Id. Under this rule, the mere presence of a motor carrier’s placard in a tractor leased by the carrier created an irrebuttable presumption that the lease continued at all times in effect. Ross v. Wall St. Sys., 400 F.3d 478, 479-80 (6th Cir.2005). Courts that applied the doctrine of logo liability consistently held that the federal leasing regulations preempted state law in tort actions where a member of the public was injured by the negligence of a motor carrier’s employee while operating the motor carrier’s vehicle. See Price, 727 F.2d at 496.

Thus, considerations steeped in respon-deat superior and master-servant relationships were essentially disregarded. See Simmons v. King, 478 F.2d 857 (5th Cir. 1973). Rather, under the leasing regulations, the lessor-truck driver was deemed to be a “statutory employee” of the lessee-motor carrier, and the motor carrier was, accordingly, liable as a matter of law for the negligence of the driver. The practical effect of the doctrine of logo liability was, therefore, to impose strict liability on a motor carrier for the negligence of its driver, regardless of whether the driver was an independent contractor and regardless of whether the lease was actually in effect at the time the injury occurred, so long as the motor carrier’s placard was affixed to the tractor. See Ross, 400 F.3d at 479-80 (6th Cir.2005).

In 1986, however, the ICC amended the leasing regulations to clarify that it never intended “to assign liability based on the existence of placards or to interfere with otherwise applicable State law.” Lease & Interchange of Vehicles (Identification Devices), 3 I.C.C.2d 92, 93-94 (1986). Under the amended regulations, the motor carrier was no longer required to obtain a receipt from the driver when the driver returned the placard upon termination of the lease. See Graham v. Malone Freight Lines, Inc., 948 F.Supp. 1124, 1133 n. 14 (D.Mass.1996); 49 C.F.R. 1057.4(d) (1985). At the time of the 1986 amendments, the ICC explained:

As noted by the comments, certain courts have relied on Commission regulations in holding carriers liable for the acts of equipment owners who continue to display the carrier’s identification on equipment after termination of the lease contract. We prefer that courts decide suits of this nature by applying the ordinary principles of State tort, contract, and agency law. The Commission did not intend that its leasing regulations would supersede otherwise applicable principles of State tort, contract, and agency law and create carrier liability where none would otherwise exist. Our regulations should have no bearing on this subject. Application of State law will produce appropriate results.

Lease & Interchange of Vehicles (Identification Devices), 3 I.C.C.2d 92, 93-94 (1986)(emphasis added).

In the wake of the 1986 amendments and accompanying ICC comments, many federal courts disavowed the logo liability doctrine. The majority of courts, however, apparently not taking the ICC at its word, still interpreted the amended regulations to impose liability whenever a lease was actually in effect, regardless of whether the driver was acting within the scope of his agency or employment at the time. See, e.g., Johnson v. S.O.S. Transp., 926 F.2d 516, 521-22 (6th Cir.1991). That is to say, although the ICC specifically announced that the regulations would not “supersede otherwise applicable principles of State tort, contract and agency law,” a number of courts applied the regulations to accomplish that very result. One particularly important practical effect of the “lease liability” theory was to nullify lease provisions identifying the lessor-truck driver as an independent contractor of the lessee motor carrier, at least when the leases were long-term, or “permanent,” leases. See Logo Liability, 33 Teansp. L. J. at 14-15.

The ICC yet again amended the leasing regulations in 1992, this time specifically to address the independent contractor issue. The amended leasing provision, currently codified at 49 C.F.R. 376.12, added subsection (c)(4), that provides:

Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies with 49 U.S.C. 14102 and attendant administrative requirements.

49 C.F.R. 376.12(c)(4) (2007). Paragraph (c)(1) requires the lease to “provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.” 49 C.F.R. 376.12(c)(1) (2007). When the 1992 amendments were adopted, the ICC commented:

The Commission’s regulations are silent on the agency status of lessors, and our decisions are clear that the Commission has taken no position on the issue of independence of lessors.... While most courts have correctly interpreted the appropriate scope of the control regulation and have held that the type of control required by the regulation does not affect “employment” status, it has been shown here that some courts and State workers’ compensation and employment agencies have relied on our current control • regulation and have held the language to be prima facie evidence of an employer-employee relationship. These State agencies often find that the current regulation evidences the type of control that is indicative of an employer-employee relationship. We conclude that adopting the proposed amendment will reinforce our view of the neutral effect of the control regulation and place our stated view squarely before any court or agency asked to interpret the regulation’s impact.

Petition to Amend Lease & Interchange of Vehicle Regulations, 8 I.C.C.2d 669, 670-72 (1992)(emphasis supplied). This comment, especially when considered in conjunction with the ICC’s 1986 comments, suggests that the view imposing strict vicarious liability was not the result intended by the leasing regulations.

Despite these comments from the ICC, the language of the regulation itself has caused confusion. More specifically, 49 C.F.R. 376.12(c)(4) compels a motor carrier’s lease creating an independent contractor relationship with a driver to comply with 49 U.S.C. 14102. That statute requires a motor carrier to be responsible for and to control the leased equipment “as if the motor vehicles were owned by the motor carrier.” This language has caused some courts to conclude that the leasing regulations may indeed have been intended to impose strict vicarious liability when a lease agreement is in effect, even when the driver is an “independent contractor.” See, e.g., Morris v. JTM Materials, Inc., 78 S.W.3d 28, 40-42 (Tex.App.2002). Certainly, one could interpret the regulation to mean that a scope of employment analysis is still irrelevant.

Thus, we are faced with two competing views of the regulations and their effect on state tort law in negligence actions. One view focuses on the specific language of the lease regulations and applies a “strict agency” or “lease liability” paradigm. The other focuses on the enabling statute and the administrative directives and compels a state law responde-at superior and “scope of employment” analysis. Compare Morris with Parker v. Erixon, 123 N.C.App. 383, 473 S.E.2d 421 (1996). If the former is adopted, the motor carrier is liable as a matter of law for the negligence of its hired driver regardless of whether the driver was under the control of the motor carrier at the time the tort was committed. If the latter is adopted, then liability attaches to the carrier only if the driver was acting within the scope of his employment at the time of the accident. It appears that this issue is one of first impression in Florida.

We think the better view is the one that begins with the enabling statute, as amplified by the ICC directives, adopted and applied by the Parker court. It is clear from the repeated comments of the administrative body itself that the ICC regulations were never intended to impose greater liability on carriers using either leased equipment or an independent contractor than that imposed when a carrier uses its own equipment or employees. See Parker.

The trial court in the present case did indeed apply state law master-servant concepts in granting summary judgment, for Dart. It found, first, that the actions of Mr. Douglas in leaving the trailer on the roadway and driving the tractor to extricate his brother’s car “was clearly not within the course and scope of his employment or relationship with Dart.” Under our jurisprudence the determination of whether an employee or independent contractor was acting within the scope of his or her agency is a question of law when the facts are not in dispute. See Whetzel v. Metropolitan Life Ins. Co., 266 So.2d 89, 90 (Fla. 4th DCA 1972). The court then noted that as a general proposition, an employer is not liable for the actions of its employee under the circumstances presented by this case. Finally, it examined the dangerous instrumentality doctrine and concluded that as a matter of law, a trailer is not a dangerous instrumentality, “and thus the employer was not subject to vicarious liability.” It drew support for this conclusion from Cheung v. Ryder Truck Rental, Inc., 595 So.2d 82 (Fla. 5th DCA 1992); Pullman, Inc. v. Johnson, 543 So.2d 231 (Fla. 4th DCA 1987), review dismissed, 549 So.2d 1014 (Fla.1989); and Foster v. Lee, 226 So.2d 282 (Fla. 2d DCA 1969).

The trial court was correct in applying state law concepts to the facts of this case, and in concluding that Mr. Douglas was not acting within the scope of his employment at the time of the accident. The dangerous instrumentality issue, however, presents yet another gnarly question.

Florida’s dangerous instrumentality doctrine is based on common law principles governing master and servant relationships. See Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920); Edwards v. ABC Transp. Co., 616 So.2d 142, 143-44 (Fla. 5th DCA 1993). At common law the master was liable for his or her servant’s negligence when the servant was entrusted with and had custody and control of a dangerous instrumentality at the time of the injury. Anderson. We generally see the dangerous instrumentality doctrine applied to impose strict vicarious liability on the owner of a motor vehicle who voluntarily entrusts it to a person whose negligent operation causes injury to another. See Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000). The doctrine is not based on respondeat superior or agency, but on “the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should injustice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.” Meister v. Fisher, 462 So.2d 1071, 1072 (Fla.1984); see also Southern Cotton Oil Co.; Jordan v. Kelson, 299 So.2d 109 (Fla. 4th DCA 1974), cert. denied, 308 So.2d 537 (Fla.1975).

In order for the dangerous instrumentality doctrine to apply the person held vicariously liable must have an identifiable property interest in the instrumentality, such as ownership, rental, bailment or a leasehold interest in the vehicle. See Aurbach, 753 So.2d at 63. Thus, in Aurbach the Florida Supreme Court recognized the vicarious liability of a lessee of a motor vehicle who authorizes another to operate that vehicle. It is well-established in Florida, as the trial court correctly found, that the trailer portion of the tractor-trailer rig is not a dangerous instrumentality. See Pullman; Garcia v. Mid-Florida Hauling, Inc., 350 So.2d 1141 (Fla. 1st DCA 1977); Foster. This court has so held in a number of cases. See, e.g., Edwards; Cheung. In the present case, therefore, liability against Dart can only be made out based on the operation of the tractor by Mr. Douglas.

Dart was the owner of the trailer and the lessee of the tractor. Dart put Mr. Douglas in operational control of both the tractor and the trailer. We conclude that an application of the principles of Aurbach to the facts of this case results in the conclusion that Dart is subject to vicarious liability for the operation of the tractor by Mr. Douglas.

We have recently said the following with respect to the dangerous instrumentality doctrine:

The doctrine imposes strict liability upon the owner of a motor vehicle by requiring that an owner who “gives authority to another to operate the owner’s vehicle, by either express or implied consent, has a nondelegable obligation to ensure that the vehicle is operated safely.” Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000). The doctrine is intended to foster greater financial responsibility to pay for injuries caused by motor vehicles because the owner is in the best position to ensure that there are adequate resources to pay for damages caused by its misuse. Id. at 62. The doctrine also serves to deter vehicle owners from entrusting their vehicles to drivers who are not responsible by making the owners strictly liable for any resulting loss.
Liability of the owner is said to be “strict” because a plaintiff need not prove that an owner negligently entrusted the vehicle to its operator for liability to attach. However, the doctrine is distinguished from strict liability for ultra-hazardous activity, because the plaintiff must prove some fault, albeit on the part of the operator, which is then imputed to the owner under vicarious liability principles. Id. Although under master-servant law, the master is vicariously liable for the acts of the servant when the servant acts within the scope of his employment, the doctrine imputes liability to an owner even when the operator disobeys restrictions on the use of the vehicle, unless the disobedience rises to the level of theft or conversion. Jackson, 617 So.2d at 1054; Susco Car Rental Sys. of Fla. v. Leonard, 112 So.2d 832, 836 (Fla.1959).

Burch v. Sun State Ford, Inc., 864 So.2d 466, 470 (Fla. 5th DCA), review dismissed, 889 So.2d 778 (Fla.2004). It appears to us that Dart, as the lessee of the tractor and the organization that allowed Mr. Douglas to operate it, was in the best position to assure that the vehicle was operated safely, and was, therefore, in the best position to ensure that there were adequate resources to pay for damages caused by its misuse.

The Estate specifically alleged that the negligent act on which it bases its wrongful death claim was the negligent operation of the tractor by Mr. Douglas in using the tractor to park the trailer on the roadway. In Cheung we concluded in considering the application of the dangerous instrumentality doctrine that a summary judgment was improperly granted in favor of the lessor of a vehicle that was towing another car because the lessor made it possible for the non-lessee-driver of the rented truck to inflict injury on others by his negligent operation of the truck while towing the car. In that case a wheel came off of the towed vehicle and struck another vehicle, injuring its driver. In coming to this conclusion we quoted Barango v. E.L. Hedstrom Coal Co., 12 Ill.App.2d 118, 138 N.E.2d 829, 833 (1956), as follows:

Irrespective of any statutory requirement, a truck operator engaged in towing another vehicle is performing an act of potential danger to other operators and pedestrians, and persons using a dangerous instrumentality are required to exercise care commensurate with the danger to be apprehended, in order to prevent injury to others.

Here, Dart through various contractual agreements put both the tractor and trailer into the hands of Mr. Douglas. While the trailer by itself may not have been a dangerous instrumentality, the tractor clearly was. The Estate specifically alleges that the negligent act that led to the death of Mr. Saullo was in the performance of that operation of the tractor which led it to park the trailer on the roadway. We conclude that the dangerous instrumentality doctrine would properly be applied to this case. If Mr. Douglas was driving a dump truck that negligently deposited a load of gravel on the roadway before driving off, and if Mr. Saullo was killed as a result of his swerving to avoid the negligently deposited gravel, the doctrine would be clearly applicable. Just because the trailer was dropped off rather than a load of stones should not change that result.

There are obviously causation issues growing out of our holding that the trial court must wrestle with before this case can be brought to a conclusion. Causation, of course, is generally an issue for the trier of fact unless reasonable persons could not differ in that respect. See Helman v. Seaboard Coast Line R.R. Co., 349 So.2d 1187 (Fla.1977). If there is any doubt at all concerning proximate cause, that doubt should be left to a jury. See Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502 (Fla. 5th DCA 2005); Goode v. Walt Disney World Co., 425 So.2d 1151 (Fla. 5th DCA 1982). As currently framed, at least, the facts of this case present an issue of causation about which reasonable minds could differ.

Summary judgment is appropriate only when the pleadings, discovery, affidavits and other evidentiary materials demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c)(2006). Because of our disposition of this appeal as it relates to the dangerous instrumentality doctrine, Dart is not currently entitled to a judgment as a matter of law. Accordingly, we find that the trial court erred in granting summary judgment in favor of Dart and reverse.

REVERSED and REMANDED.

THOMPSON and TORPY, JJ„ concur.

      .49 U.S.C. 14102 was formerly codified at 49 U.S.C. 11107 (1995) and 49 U.S.C. 304 (1956). The current version of the statute, and the regulations promulgated pursuant thereto, have not changed significantly since the accident giving rise to the present case occurred in 2002.

      . The ICC was abolished by the ICC Termination Act of 1995, and it was supplanted by a new regulatory agency, the Federal Motor Carrier Safety Administration (“FMCSA”). See Logo Liability, 33 Transp. L.J. at 27 n. 19.

      . 49 C.F.R. 1507, which contained the federal leasing regulations, was re-designated to 49 C.F.R. 376. See, e.g., 49 C.F.R. 376.12 (2007).


text:
    Edward THURMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-4480.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.
    Rehearing Denied June 7, 2007.
    Edward Thurman, Sanderson, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We deem the instant petition for writ of certiorari to be a notice of appeal and, finding no error, we affirm.

AFFIRMED.

PALMER, TORPY and LAWSON, JJ., concur.


author: LaROSE, Judge.

text:
    Michael Bryan WAMSLEY, Appellant/Cross-Appellee, v. Ann Marie WAMSLEY, Appellee/Cross-Appellant.
    Nos. 2D05-5228, 2D05-6130, 2D06-582.
    District Court of Appeal of Florida, Second District.
    May 11, 2007.

      Joryn Jenkins of Joryn Jenkins & Associates, Tampa, for Appellant/Cross-Appel-lee.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appel-lee/Cross-Appellant.
   LaROSE, Judge.

Michael Bryan Wamsley (the Husband) appeals three partial final judgments entered in his dissolution action below. We dismiss his challenge to the trial court’s ruling that Ann Marie Wamsley (the Wife) is entitled to attorney’s fees. Because the trial court did not determine a fee amount, that order is not appealable. See Salem v. Abram, 868 So.2d 1213, 1214 (Fla. 2d DCA 2004). We affirm the trial court’s rulings on the Husband’s remaining issues without further discussion.

In her cross-appeal, the Wife argues that the trial court erred in excluding business “pass-through” income and employment benefits from the Husband’s gross income, in awarding the federal dependency tax exemption to the Husband, and in setting an inadequate interest rate for the equitable distribution payment schedule. We conclude that the trial court properly excluded the Husband’s pass-through income from his gross income, and we explain our reasoning below. We reverse the dependency tax exemption award. As we explain more fully below, the trial court did not require the Wife to waive the exemption and failed to make the award contingent upon the Husband staying current in his support payments. The Husband properly concedes that the interest rate applicable to the equitable distribution payment schedule should reflect the 2006 statutory interest rate of nine percent. Thus, we reverse as to this issue. We affirm the exclusion of the employment benefits without discussion.

Pass-Through Income

The Husband is the Chief Executive Officer and majority shareholder of a company recognized as a Subchapter S Corporation under the Internal Revenue Code. Federal tax law requires him to report pass-through income to the IRS on a K-l statement. The Husband’s 2003 and 2004 K-l statements reported $71,725 and $118,926 of pass-through income, respectively. His financial affidavits in the trial court, however, showed no such income.

The Husband testified that he never actually received any pass-through income; his company had no cash to distribute to its shareholders. According to the Husband, his company faced several lawsuits and was heavily indebted. As a result of industry changes, his company’s inventory became outdated. His company lost money in a failed investment, and members of management quit.

The Wife argues that the trial court failed to assess the Husband’s pass-through income under Zold v. Zold, 911 So.2d 1222 (Fla.2005). In Zold, the supreme court set the standard for determining whether undistributed pass-through income should be included as gross income under chapter 61. “[T]he shareholder-spouse should have the burden of proving that the undistributed ‘pass-through’ income was properly retained for corporate purposes rather than impermissibly retained to avoid alimony, child support, or attorney’s fees obligations by reducing the shareholder-spouse’s amount of available income.” Zold, 911 So.2d at 1233. To determine whether the shareholder-spouse has met this burden, the trial court should consider:

(1) the extent to which a shareholder-spouse has access to or control over “pass-through” income retained by the corporation, (2) the limitations set forth in section 607.06401(3) governing corporate distributions to shareholders, and (3) the purpose(s) for which the “pass-through” income has been retained by the corporation.

Id.

Although Zold postdated the final hearing in this case, the evidence before the trial court supports the exclusion of the Husband’s pass-through income. The Husband was a shareholder in his company. Yet, he testified that his company could not make a cash distribution. His company had significant liabilities. The loss of management, outdated inventory, and failed investments could affect the company’s ability to pay its debts. Thus, the trial court could reasonably conclude that the company retained its resources to meet its business obligations and survive. See § 607.06401(3)(a), Fla. Stat. (2005) (“No distribution may be made if, after giving it effect ... [t]he corporation would not be able to pay its debts as they become due in the usual course of business ....”); see also McHugh v. McHugh, 702 So.2d 639, 641 (Fla. 4th DCA 1997), cited with approval in Zold, 911 So.2d at 1234.

The Wife presented no evidence that the Husband withheld distributions to avoid alimony or child support obligations. Nor did she rebut evidence that the Husband withheld distributions for corporate purposes. The trial court did not err in excluding undistributed pass-through income from the Husband’s gross income.

Dependency Tax Exemptions

The trial court awarded primary residential custody of the children to the Wife. The Husband’s arrearages for alimony, child support, and medical expenses exceeded $20,000. The trial court awarded the Husband federal income tax exemptions for the children because the Husband was responsible for most of their financial support.

The custodial parent presumptively is entitled to the exemptions but may release them to the noncustodial parent. Harris v. Harris, 760 So.2d 152, 153 (Fla. 2d DCA 2000); see also 26 U.S.C. §§ 151(c), 152(e)(2) (2004). “The court may order the primary residential parent to execute a waiver of the ... exemptions] if the noncustodial parent is current in support payments.” § 61.30(ll)(a)(8), Fla. Stat. (2005). The trial court cannot allocate the dependency tax exemption directly. It can, however, require the custodial parent to execute a waiver transferring the exemptions to the noncustodial parent. Robertson v. Bretthauer, 712 So.2d 1140, 1141 (Fla. 3d DCA 1998).

Recognizing that the Husband shouldered most of the children’s financial support responsibilities, the trial court awarded the exemptions to him. However, the Wife did not execute a waiver of exemptions. The trial court should have required such a waiver. See § 61.30(11)(a)(8); Robertson, 712 So.2d at 1141.

Additionally, in giving the exemptions to the Husband, the trial court failed to condition that award on the Husband being current in his support obligations. See Davies v. Turner, 802 So.2d 1195, 1196 (Fla. 1st DCA 2002) (holding the trial court erred when it ordered the former spouse to execute a waiver of the dependency exemption without making it conditional on the other former spouse being current with support payments). The Husband was in arrears. Accordingly, on remand, if the trial court awards the Husband the dependency tax exemptions, the Wife’s waiver should be conditioned upon the Husband being current in his support obligations. We reverse the award of the dependency tax exemptions to the Husband and remand for further consideration.

Affirmed in part, reversed in part, and remanded for further proceedings.

DAVIS and VILLANTI, JJ., Concur.

      . "Pass-through.” income reflects a Subchap-ter S Corporation’s income and losses not taxed at the corporate level, but taxed directly to the corporation’s shareholders on a prorata basis. Friedman v. C.I.R., 216 F.3d 537, 538-39 n. 2 (6th Cir.2000) (citing 26 U.S.C. § 1366).


text:
    Byron LOWERY, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-1820.
    District Court of Appeal of Florida, First District.
    May 14, 2007.
    Byron Lowery, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We deny the petition for writ of certio-rari on the merits as to petitioner’s claim that the circuit court departed from the essential requirements of law when it denied his petition for writ of mandamus. However, as the Department correctly concedes, petitioner’s claim constituted a collateral criminal proceeding within the meaning of section 57.085(10), Florida Statutes. Therefore, the circuit court improperly imposed liens upon petitioner’s inmate trust account for payment of both the original writ and appellate court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d —, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006), review granted by McDonough v. Cox, 924 So.2d 809 (Fla.2006).

Accordingly, we quash the circuit court orders imposing liens on petitioner’s inmate trust account for the payment of court costs and fees incurred in the mandamus proceedings before the circuit court and incurred in these appellate proceedings. We direct the circuit court to reimburse any funds that have been withdrawn from petitioner’s account to satisfy the improper lien orders.

ALLEN, WEBSTER, and BENTON, JJ., concur.


text:
    Byron LOWERY, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-1835.
    District Court of Appeal of Florida, First District.
    May 14, 2007.

      Byron Lowery, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We deny the petition for writ of certio-rari on the merits as to petitioner’s claim that the circuit court departed from the essential requirements of law when it denied his petition for writ of mandamus. However, as the Department correctly concedes, petitioner’s claim constituted a collateral criminal proceeding within the meaning of section 57.085(10), Florida Statutes. Therefore, the circuit court improperly imposed liens upon petitioner’s inmate trust account for payment of both the original writ and appellate court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d —, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006), review granted by McDonough v. Cox, 924 So.2d 809 (Fla.2006).

Accordingly, we quash the circuit court orders imposing liens on petitioner’s inmate trust account for the payment of court costs and fees incurred in the mandamus proceedings before the circuit court and incurred in these appellate proceedings. We direct the circuit court to reimburse any funds that have been withdrawn from petitioner’s account to satisfy the improper lien orders.

ALLEN, WEBSTER, and BENTON, JJ., concur.


author: BROWNING, C.J.

text:
    Patricia WHEELER, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-1811.
    District Court of Appeal of Florida, First District.
    May 14, 2007.

      Patricia Wheeler, pro se, Appellant.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

In this appeal of an order dismissing a petition for writ of mandamus, appellant challenges the imposition of liens on her inmate trust account. We affirm the order on appeal. As appellant waived the issue below, we affirm the circuit court’s imposition of the lien for the payment of court costs and fees incurred in the mandamus proceedings before the circuit court. However, we quash the circuit court’s order imposing a lien for costs and fees incurred in these appellate proceedings.

In her petition for writ of mandamus below, appellant challenged the withholding of unearned gain time, rather than the loss of gain time. As appellee properly concedes in light of this Court’s recent decisions in this area, appellant’s action constituted a collateral criminal proceeding. See Yasir v. McDonough, 31 Fla. L. Weekly D1459, — So.2d —, 2006 WL 1419271 (Fla. 1st DCA May 25, 2006); Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d —, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006) review granted by McDon-ough v. Cox, 924 So.2d 809 (Fla.2006). Accordingly, indigency determinations are to be made under section 57.081, Florida Statutes, which does not contain statutory authority for the imposition of a lien. See Lowery v. McDonough, 940 So.2d 540 (Fla. 1st DCA 2006); Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). Therefore, the circuit court erred in imposing the appellate lien on appellant’s inmate trust account.

Accordingly, we quash the circuit court’s order imposing a lien on appellant’s inmate trust account for the payment of court costs and fees incurred in these appellate proceedings. We direct the circuit court to order reimbursement of any funds that have been withdrawn from appellant’s account to satisfy this improper lien order.

WEBSTER and PADOVANO, JJ., concur.


text:
    Keith MATHIS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3778.
    District Court of Appeal of Florida, First District.
    May 14, 2007.

      Keith Mathis, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, and Marjorie C. Holladay, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Keith Mathis timely petitions for certio-rari review of an order of the circuit court denying his petition for writ of mandamus, in which he sought an award of additional credit for time he spent in county jail following his sentencing but prior to his delivery to the custody of the Department of Corrections. The circuit court denied that claim on the merits, and Mathis does not challenge that ruling before this court. However, he asserts that the circuit court erred when, in reliance on section 57.085, Florida Statutes (2006), it imposed a lien on his inmate trust account to recoup filing fees and costs. The Department concedes and we agree that petitioner’s argument in this regard is meritorious. Since this claim, if successful, would have reduced the time he will spend in prison, it constituted a “collateral criminal” proceeding as described in Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Because section 57.085 was inapplicable, the imposition of a lien on petitioner’s inmate trust account was not authorized by law. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

Accordingly, we quash the order imposing a lien on petitioner’s inmate trust account to recoup filing fees and costs, and remand to the circuit court with instructions to direct the reimbursement of any funds collected pursuant to the improper lien.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    Donald E. LEMOINE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1138.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2007.
    Donald E. Lemoine, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Lomont v. State, 506 So.2d 1141 (Fla. 2d DCA 1987).

GRIFFIN, SAWAYA and ORFINGER, JJ., concur.