author: CORTINAS, Judge.

text:
    Dorothy Collins SIMPSON, Appellant, v. In re ESTATE OF Roosevelt NORTON, Tangela Norton Ilas, and Cedric Norton, Appellees.
    Nos. 3D06-971, 3D06-837, 3D06-1767.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.

      Dorothy Collins Simpson, Georgia, in proper person.
    Leon E. Sharpe, Miami, for appellees.
    Before WELLS and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, Judge.

This case is a consolidation of three appeals arising out of the probate administration of the estate of Roosevelt Norton, the Appellant’s uncle. The Appellant, Dorothy Collins Simpson (“Simpson”), and her uncle each own a fifty percent interest in real property located at 13021 N.W. 20th Avenue, Miami, Florida. Simpson contends that she also owns personal property within the house. First, Simpson appeals from the trial court’s April 15, 2006 order determining ownership of personal property. Second, Simpson appeals from the trial court’s April 18, 2006 order which gave Simpson ten days to decide whether to exercise her right of first refusal. Third, Simpson appeals from the trial court’s July 11, 2006 order mandating the removal of all personal items from the property, authorizing the deposit of the proceeds of the sale into the estate’s restricted depository, and ordering all parties to cooperate in conveying the property to a third party buyer.

Simpson raises numerous arguments on appeal. In her first appeal, Simpson contends that the trial court erred in determining that she had forfeited any ownership rights in the personal property contained within the house. At the December 3, 2008 hearing, which was memorialized in the April 5, 2006 order, the trial court explained that Simpson testified that the personal property she contends she owns was given by Simpson to her grandmother, who resided in the house with Roosevelt Norton prior to her death in 1997. Simpson contends that her grandmother’s will devised all her personal property to Simpson, and therefore the gifts she had given her grandmother were devised back to her. The trial court concluded that if the gifts were devised to Simpson, Simpson should have either removed the property in 1997 or should have had her grandmother’s will probated so that a list could be created of all the personal property that passed to her from her grandmother’s will. The trial court further noted that when the grandmother’s will was probated, after the death of Roosevelt Norton, no list of personal property was ever created. The trial court explained that, without such a list, it was in the impossible position of first determining what had belonged to Simpson’s grandmother, to then determine what now belongs to Simpson. Ultimately, the trial court concluded, “I don’t have anything before me that shows that Ms. Simpson has a better claim than the estate.”

On appeal, Simpson contends that, prior to 1997, she purchased the items in dispute, and, therefore, she owns them. She acknowledges that some of the items may have been gifts to her grandmother, but that other items were purchased for herself, without explaining which items fall into which category. We find that the trial court’s factual findings were supported by competent and substantial evidence and, thus, we find no error. In re Estate of Sterile, 902 So.2d 915, 922 (Fla. 2d DCA 2005)(“As a general rule, a decision in a nonjury case based on a finding of fact from disputed evidence is subject to the competent, substantial evidence standard of review on appeal because the trial judge is in the best position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses.’ ” (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976))). Neither Simpson’s procedural nor substantive due process rights were violated. Cf Fleming v. Demps, 918 So.2d 982, 983 (Fla. 2d DCA 2005)(reversing trial court’s order determining ownership of funds where interested party claiming ownership of funds was not given an opportunity to be heard).

In her second appeal, Simpson contends that the delay in memorializing the December 3, 2003 ruling prejudiced her because she was unable to obtain financing at low rates to enable her to exercise her right of first refusal. However, the only aspect of the December 3, 2003 ruling that relates to Simpson’s right to purchase the property is a comment by the trial court that he would have no problem with Simpson purchasing the property. There is nothing in the transcript to indicate that all parties agreed to sell the property to Simpson at the December 3, 2003 hearing as Simpson contends. Similarly, the December 3, 2003 ruling did not grant Simpson a right of first refusal. The earliest court order included in the record that recognizes Simpson’s right of first refusal was signed on February 16, 2006, memorializing the January 5, 2006 hearing. The December 3, 2003 ruling and the April 5, 2006 order simply do not bear on Simpson’s right to purchase the property. In any event, the trial court’s December 3, 2003 oral ruling was binding at the time it was pronounced. If Simpson was granted any right to purchase the property by this ruling, such a right vested at the time the ruling issued. The delay between the oral ruling and the written order did not affect Simpson’s right to purchase the property.

Simpson also contends that the April 5, 2006 order failed to incorporate the entirety of the December 3, 2003 ruling, namely the trial court’s comments on mortgage payments and determining the fair market value of the house. After careful review of the December 3, 2003 hearing and the April 5, 2006 order, we conclude that this contention is without merit. The only omission from the April 5, 2006 order is the trial court’s suggestions regarding proceeding with the sale of the property. However, these suggestions were not part of the trial court’s December 3, 2003 ruling. Instead, they were mere dicta and were properly excluded from the written order. Although the trial court indicated that Simpson may be entitled to credit for the mortgage payments she had made, the trial court reiterated multiple times that the issue of paying the estate’s debts was not before the court. Similarly, the trial judge did not rule on selling the property, but instead suggested how he would like counsel for the estate to proceed. Incredibly, the trial court’s suggestion as to how to calculate the selling price of the house, by selling the house at whatever value a prospective buyer is willing to pay instead of selling the house at its lower appraisal value or at the fair market value at the time of Roosevelt Norton’s death, was followed exactly by the personal representative and is the exact method of which Simpson now complains.

Simpson contends that the purchase price of the property approved by the court exceeds the “fair market value” of the property given the property’s state of disrepair. Although we empathize with Simpson’s situation, she points out no legal error. See, e.g., Dunn v. Kean, 928 So.2d 383, 383 (Fla. 1st DCA 2006)(holding that dissatisfaction with the administration of a probate estate unaccompanied by any legal basis as to how the trial court abused its discretion is not grounds for an appeal). Simpson and the personal representative agree that the property must be sold. Simpson has been granted a right of first refusal on the property. The court appointed a realtor who listed the property and received offers on the property. Simpson was given numerous opportunities to exercise her right of first refusal. However, Simpson refused to either match the buyer’s offer or cooperate in completing the sale to the buyer, contending, as she does on appeal, that the purchase price was too high. Ultimately, the personal representative was forced to obtain a court order mandating that Simpson exercise her right of first refusal within ten days. The trial court did not abuse its discretion in issuing such an order. The trial court is not bound to authorize a sale of the property at a “fair market value” that is less than what prospective buyers are willing to pay. See, e.g., Iglehart v. Phillips, 383 So.2d 610, 615 (Fla.l980)(implieitly recognizing that options to purchase can be based on either market value or appraisal value). To the contrary, it is the obligation of the trial court and the personal representative to maximize the value of the estate’s assets so that estate creditors can be paid.

Further, we must note that the trial court allowed Simpson an additional opportunity to exercise her right of first refusal after the prospective buyer inspected the property to address Simpson’s concern regarding the high price. This was done so that, if the buyer sought a reduction in price due to the property’s condition, Simpson would be afforded an opportunity to match the reduced price. The trial court did everything possible to afford Simpson an opportunity to exercise her right of first refusal. However, Simpson simply cannot prohibit the trial court from authorizing the sale of the property because she thinks the purchase price is too high.

Simpson’s third appeal realleges the same issues already addressed in this opinion and raises issues that do not relate to the trial court’s order from which the appeal was taken. Simpson’s contentions that the personal representative of Roosevelt Norton’s estate delayed in filing an inventory list, that counsel for the estate did not provide proof under section 732.108, Florida Statutes, for heirs born out of wedlock, and that the personal representative and counsel for the estate should be sanctioned, are without merit.

Finally, Simpson contends that she is entitled to reimbursement from the estate for funeral expenses and mortgage payments she paid. The trial court has not yet ruled on this issue, and the record is clear that the estate’s creditors cannot be satisfied until the property at issue is sold because the estate is otherwise insolvent. Simpson even recognizes the estate’s insolvency in her briefs. Thus, Simpson’s contentions in this regard are premature. See Conservatory-City of Refuge, Inc. v. Kinney, 514 So.2d 377, 378 (Fla. 2d DCA 1987)(finding appeal premature where issues raised on appeal “have neither been fully litigated nor decided”). Similarly, Simpson’s argument that Simpson and the mortgage company were never noticed as creditors was not an issue decided by the trial court and, therefore, is not before this court on appeal. The trial court must be afforded an opportunity to decide this issue before an appeal can be taken. See id. Additionally, this is not the proper forum in which to litigate Simpson’s numerous complaints about her three former attorneys and we decline to address those issues.

Because we find no error in the trial court’s orders on appeal, we affirm.

Affirmed.

        . Notably, the order of summary administration for Annie Collins, Simpson’s grandmother, states that "100% of all assets* * ” are to be immediately distributed to Dorothy Collins Simpson. The order then states “ * *said assets consisting of Decedent’s 50% interest in ... 13021 NW 20th Avenue, Miami, FL 33167." No personal property is listed in the order. Simpson misunderstands the effect of this order of summary administration. Although it establishes rights to Annie Collins' former property, it does not dictate how Roosevelt Norton’s estate should be administered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sara ARGAMON, Appellant, v. Shlomo ARGAMON, Appellee.
    No. 4D06-3779.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Steven R. Brenners, Coral Springs, for appellant.
    Betty C. Resch, Lake Worth, for appel-lee.
   PER CURIAM.

The former wife appeals a temporary order extending the former husband’s visitation with his children pending the disposition of the former husband’s petition for modification. We conclude that the order is in effect a temporary change of custody which requires a finding of a substantial change of circumstances and a finding that the change of custody is in the best interests of the children. See Kendall v. Kendall, 832 So.2d 878, 879-80 (Fla. 4th DCA 2002); McGlamry v. McGlamry, 608 So.2d 553, 554-55 (Fla. 4th DCA 1992). The trial court did not make these findings in its order. Although the court found that the former husband showed that the children would be at substantial risk of harm should they be returned to their mother, the testimony supporting that finding involved a domestic violence incident between the former wife and her parents which did not take place in the presence of the children. Further, there was no evidence presented of any connection between the incident and any harm or risk to the children. All that was presented is the possibility of a negative impact on the children, which is insufficient to change custody. See Burger v. Burger, 862 So.2d 828, 832-33 (Fla. 2d DCA 2003).

We reverse the order and remand for further proceedings which may include the bringing of a motion for a temporary change in custody based upon the correct criteria.

WARNER, GROSS and TAYLOR, JJ., concur.


author: POLEN, J.

text:
    WOODARD CHEVROLET, INC., Appellant, v. TAYLOR CORPORATION d/b/a Progressive Communications International, Appellee.
    No. 4D06-3093.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Devon G. Coughlan of Elk, BanMer, Christu & Bakst, LLP, Boca Raton, for appellant.
    Craig Z. Sherar and Patricia M. Arias of Craig Z. Sherar, P.A., Miami, for appellee.
   POLEN, J.

Appellant Woodard Chevrolet, Inc. (“Woodard”) timely appeals a non-final order denying its motion to dismiss for lack of jurisdiction. Based on our analysis below, we hold that Woodard is not subject to jurisdiction in Florida as regards this dispute, and we therefore reverse with directions to enter an order granting Woodard’s motion to dismiss for lack of jurisdiction.

Woodard is a California corporation that owns and operates automobile dealerships exclusively in Solano County, California. Appellee Taylor Corporation d/b/a Progressive Communications International (“PCI”) is a Florida-based company that publishes and distributes marketing material via mail. Woodard and PCI executed an “Automotive Newsletter Direct Mail Marketing Service Agreement,” in which PCI agreed to publish, print and mail some 10,000 marketing fliers six times a year to households consisting of current and former Woodard customers. The content of the mailers specifically targeted Northern California households that may wish to purchase a vehicle from one of Woodard’s dealerships in Solano County. The agreement was signed by Woodard’s president in Solano County, and the PCI agent dealing with Woodard worked from PCI’s sales office in Los Angeles, California. No meetings were held in Florida, nor did anyone from Woodard travel to Florida relative to the agreement.

Per the terms of the agreement, Woodard sent payments to PCI’s office in Pompano Beach, Florida. PCI performed the design, production and printing in Florida, and mailed the brochures from Florida to recipients mostly located in California. However, of the 10,000 recipient households, thirty-eight were located in Florida. This was apparently due to former Woodard customers moving from California to Florida, as Woodard’s original mailing list contained California addresses only.

Almost four years into the agreement, PCI filed an action in the Seventeenth Judicial Circuit, in Broward County, Florida, seeking to recover payment of monies due for services rendered to Woodard. The complaint set forth the basis of jurisdiction as follows:

Woodard is a California corporation doing business in interstate commerce and in the State of Florida and in Broward County. Pursuant to Florida Statute § 48.193(l)(a), jurisdiction is proper in Broward County because Woodard has engaged in a business venture in the State of Florida and pursuant to Florida Statute § 48.193(l)(g) has breached a contract, which required payment in Broward County, Florida. Payment is required to be made at 3300 Gateway Drive, Pompano Beach, Florida.

Woodard filed a motion to quash summons and to dismiss based on Florida’s alleged lack of personal jurisdiction. The trial court held a hearing and denied the motion, finding that Woodard’s contract with a Florida corporation to print and disseminate flyers for it out of a Florida location and accept payments for it into a Florida location provided sufficient contacts to establish jurisdiction.

An appellate court must conduct a de novo review of a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002).

Florida has a two-step inquiry for determining whether there is long-arm jurisdiction over a nonresident defendant in Florida. Wendt, 822 So.2d at 1257. First, the court must determine whether the plaintiffs complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute, ie., whether defendant performed any of the acts delineated in the statute. Id. If such facts are alleged, it must determine whether there are sufficient minimum contacts between the defendant and Florida to satisfy the Fourteenth Amendment’s due process requirements. Id. “Factors that go into determining whether sufficient minimum contacts exist include the foreseeability that the defendant’s conduct will result in suit in the forum state and the defendant’s purposeful availment of the forum’s privileges and protections.” Taskey v. Burtis, 785 So.2d 557, 559 (Fla. 4th DCA 2001).

“Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state” is one of the enumerated acts which will subject a person to jurisdiction in Florida. See § 48.193(1)(g), Fla. Stat. (2006). It is sufficient for purposes of the first prong of the test that a contract is made with a Florida resident and payment is to be made in this state. See Smith Architectural Group, Inc. v. Dehaan, 867 So.2d 434, 436 (Fla. 4th DCA 2004) (citing Stomar, Inc. v. Lucky Seven Riverboat Co., 821 So.2d 1183 (Fla. 4th DCA 2002) (finding allegation that owner of vessel breached agreement with Florida ship broker by failing to pay commission owed to broker in Florida sufficient to satisfy first prong of jurisdictional inquiry)); see also Tallmadge v. Mortgage Fin. Group, Inc., 625 So.2d 1313 (Fla. 4th DCA 1993) (stating that requirements of long-arm statute met where Florida mortgage broker obtained refinancing of a mortgage on a California property and closing was held in California, but commission agreement as well as all loan documents, correspondence, and checks were sent to broker’s Florida office); Poe v. Marine Group of Palm Beach, Inc., 760 So.2d 273, 274 (Fla. 4th DCA 2000) (Florida long-arm statute requirements met where Maryland residents gave Florida corporation exclusive right to sell yacht located in Maryland in exchange for commission, and contract required some action by both parties in Florida). As PCI alleged such facts in its complaint, we find the first prong satisfied.

However, we also find insufficient minimum contacts between Woodard and this state to satisfy the Fourteenth Amendment’s due process requirements. PCI initially contacted Woodard in California and solicited Woodard’s business through its sales agent in California. Furthermore, no representative of Woodard ever set foot in Florida. Therefore, it cannot be said that Woodard purposefully availed itself of the privileges of doing business here. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). As such, we conclude that Woodard could not have reasonably anticipated being haled into court in this state, see id. at 474, 105 S.Ct. 2174 (iciting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)), and we reverse the trial court’s order with directions to enter an order granting Woodard’s motion to dismiss for lack of jurisdiction.

Reversed with Directions.

WARNER and GROSS, JJ., concur.

      . Although not dispositive to this appeal, we note that the agreement contained no venue selection clause.


text:
    Benjamin ELISHA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4060.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Rehearing Denied March 23, 2007.

      J. David Bogenschutz of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Benjamin Elisha, appeals a judgment and sentence for two counts of sexual battery upon a child and one count of false imprisonment of a child under the age of thirteen. Elisha was classified as a sexual predator and sentenced to life imprisonment on all three counts with a minimum mandatory sentence of twenty-five years, sentences to run concurrently. Elisha raises four points in this appeal, and we find merit in two of the issues raised. On the basis of the issues discussed below, we reverse Elisha’s convictions and remand for a new trial.

' For his first basis for reversal, Elisha argues the trial court erred in denying his motion for mistrial after the State made impermissible, inflammatory comments in its closing argument. During its closing arguments the State referred to Elisha as “a condom-carrying masturbator” and “a masturbator” more than thirty times.

The trial court’s denial of a motion for mistrial is reviewed using an abuse of discretion standard. Smith v. State, 866 So.2d 51, 59 (Fla.2004). An order granting mistrial is required only when the error upon which it rests is so prejudicial as to vitiate the entire trial, making a mistrial necessary to ensure that the defendant receives a fair trial. Id. at 58 (internal citations omitted). “Improper prosecutorial comments give rise to error justifying mistrial when they are ‘so prejudicial that [they] vitiate the entire trial.’ ” Mannarino v. State, 869 So.2d 650, 652 (Fla. 4th DCA 2004)(quoting Taylor v. State, 640 So.2d 1127 (Fla. 1st DCA 1994)). “In determining whether reversal is warranted for an improper remark made by a prosecutor during the closing argument, the court must determine whether the effect of the comment[s] was to prejudice the jury and impair the fairness of the proceeding.” Mannarino, 869 So.2d at 652.

In this case, Elisha admitted to masturbating in the bathroom stall at the Swap Shop in a taped statement to the police. “If the evidence supports such a characterization, counsel is not impermissi-bly stating a personal opinion about the credibility of a witness, but is instead submitting to the jury a conclusion that reasonably may be drawn from the evidence.” Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010,1029 (Fla.2000).

However, we find the prosecutor’s many repeated references to Elisha’s masturbation were designed to inflame the prejudices of the jury and constitute an impermissible general attack on his character. See Chambers v. State, 924 So.2d 975, 978 (Fla. 2d DCA 2006). We find the numerous references to Elisha’s sexual practices were “so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise reached.” Id. at 978-79. This concern is heightened by the fact that the evidence against Elisha was far from overwhelming. There was no physical evidence, either in the form of DNA evidence or conclusive physical injury, tying Elisha to the victim. The evidence against Elisha consisted of the victim’s testimony and statements and the victim’s grandfather’s testimony. Therefore, we reverse the trial court’s denial of Elisha’s motion for mistrial.

For his second issue, Elisha argues that the trial court erred in denying a second motion for mistrial after a portion of his taped statement, which was played for the jury, revealed his request for an attorney, asserting this was an impermissible comment on his right to silence. “Any comment that is ‘fairly susceptible’ of being interpreted as a comment on the defendant’s right to remain silent will be treated as such.” Grier v. State, 934 So.2d 653, 655 (Fla. 4th DCA 2006).

Admission of a defendant’s statement requesting an attorney amounts to a comment on the defendant’s right to remain silent. Comments on silence are high risk errors because there is a substantial likelihood that such comments will vitiate the right to a fair trial. Unless the state can show harmless error, a comment on the defendant’s exercise of the right to remain silent warrants reversal.

Id. (internal citations omitted).

The jury heard the following exchange, which occurred at the end of Elisha’s lengthy taped statement:

Elisha: When is my lawyer going to show up?
Benito: You want a lawyer?
Elisha: Yes.
Benito: This is the first time you tell me you want a lawyer.
Elisha: No, because you are already accusing me and you are saying I am lying.
Benito: Fine, this is it. I am not going to ask you anything else without a lawyer present.

We find it was error to admit the portion of Elisha’s taped statement in which he asked for an attorney, as it “amounts to a comment on the defendant’s right to remain silent.... Unless the state can show harmless error, a comment on the defendant’s exercise of the right to remain silent warrants reversal.” Grier, 934 So.2d at 655. “An error is harmless only where, after close examination of the permissible evidence and even closer examination of the impermissible evidence, it is clear that the testimony did not affect the jury verdict and was harmless beyond reasonable doubt.” Kiner v. State, 824 So.2d 271, 272 (Fla. 4th DCA 2002). As noted above, the evidence against Elisha was not overwhelming, and we cannot say that Elisha’s request for an attorney did not affect the jury’s verdict.

Based on these two grounds, we find the trial court erred in denying Elisha’s motions for mistrial, reverse his convictions and remand for a new trial.

WARNER and GROSS, JJ., concur.


author: STEVENSON, C.J.

text:
    BROWARD COUNTY, Appellant, v. Andrew RECUPERO, as Personal Representative of the Estate of Theresa Colangelo, Andrew Recupero, individually, et al., Appellees.
    No. 4D05-4482.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Jeffrey J. Newton, Broward County Attorney, James D. Rowlee, Assistant County Attorney, and Andrew J. Meyers, Chief Appellate Counsel, Fort Lauderdale, for appellant.
    Stuart J. Mae Iver of Doumar, AIls-worth, Cross, Laystrom, Voigt, Wachs, Mac Iver & Adair, LLP, Fort Lauderdale, for appellees.
   STEVENSON, C.J.

Broward County appeals a final order in a lien foreclosure proceeding wherein it sought to foreclose code enforcement liens against commercial property located in Broward County and owned by the estate of Theresa Colangelo. The trial court ordered Broward County to execute an agreement which would subordinate its liens to that of a newly-acquired mortgage on the property or the court would hold that the liens were satisfied. Since Bro-ward County did not timely execute the agreement, the trial court held that the liens were satisfied. We reverse both orders.

The Broward County Enforcement Board informed Andrew Recupero, the estate’s personal representative, that a daily fine of $250 would be assessed if the estate’s property was not brought into compliance with the Broward County Zoning Code. Subsequently, Broward County brought suit to foreclose $423,750 in liens it had recorded against the property for the code enforcement violations. Initially, the trial court granted summary judgment in favor of the estate, but the case was reversed. See Broward County v. Recupero, 908 So.2d 520 (Fla. 4th DCA 2005). During the continued proceedings upon remand, the estate sought to obtain a new mortgage loan on the property and filed a “Motion to Satisfy Liens of Record and Allow Refinancing of Property.” The estate asserted in its motion that, due to financial constraints, there was a critical need for refinancing the property, but the code enforcement liens were making it difficult to obtain such refinancing. The estate therefore requested that the trial court discharge the liens to facilitate the refinancing of the property. The estate filed an appraisal of the property and maintained that the property had sufficient equity to adequately secure a mortgage of $285,000 as well as Broward County’s lien amounts. Broward County opposed the motion, arguing that if the trial court “negate[d] valid liens on the subject property before a final determination, [it] would be tantamount to a ruling on the merits without due process.” Furthermore, Broward County contended that canceling the liens before they were satisfied would cause Broward County to lose its priority over secured creditors and generally weaken Broward County’s leverage to compel compliance with its zoning laws.

After a hearing on the estate’s motion, the trial court entered an order on September 29, 2005, finding that “there is adequate equity in the property which is the subject of this action and that even after the [estate] encumbers two of the four lots in question in the amount of $285,000 there will still remain more than adequate equity to secure [Broward county’s] lien amounts.” The order required Broward County to execute within five days an agreement that would subordinate its liens to the estate’s soon-to-be-executed new mortgage on the property. The trial court stated that if Broward County failed to execute the subordination agreement, the court would issue an order satisfying the liens of record upon submission of an affidavit by counsel for the estate. After more than five days passed, the estate’s attorney filed an affidavit stating that the subordination agreement had not been signed by Broward County. Shortly after the estate’s attorney filed his affidavit, Broward County executed the agreement on October 12, 2005. On October 14, 2005, the trial court entered an order, stating that the liens “are hereby satisfied of record and are of no further force or effect.” Thereafter, Broward County moved to quash the order because Stan Morris, the assistant to the director of Broward County’s building services, had been away from work because of a family emergency. Morris explained that he did not realize that he needed to execute the subordination agreement because he was away from his office from October 10, 2005 until October 16, 2005. The trial court denied the motion to quash, and this appeal followed.

The liens on the estate’s property were imposed pursuant to the Local Government Code Enforcement Boards Act, sections 162.01-162.13, Florida Statutes (2001). The intent of the Act is

[T]o promote, protect, and improve the health, safety, and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances....

§ 162.02, Fla. Stat. (2001). Accordingly, after inspection and notice, a code enforcement board may order a code violator to pay a fine for each day a violation continues past the date set by the board for compliance. See § 162.09(1), Fla. Stat. “A certified copy of an order imposing afine, or afine plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists .... ” § 162.09(8), Fla. Stat. (emphasis added). The code enforcement lien runs in favor of the local governing body and after three months from the filing of the lien, the local governing body may sue to foreclose or to recover a money judgment. Id.

We agree with Broward County that the trial court abused its discretion in ordering it to enter into a subordination agreement and in declaring its liens to be satisfied. See generally Boca Burger, Inc. v. Forum, 912 So.2d 561, 573 (Fla.2005) (stating “[a] lower court’s decision to impose sanctions is reviewed under an abuse of discretion standard”). Florida Statutes section 695.11 provides that instruments are deemed to be recorded from the time of filing. Since the notice of Broward County’s liens was filed before the estate obtained the refinancing mortgage, Bro-ward County’s liens had priority over the estate’s mortgage. The trial court effectively eliminated Broward County’s valuable statutory rights of priority and lien foreclosure without any authority to do so. Appellate courts have reversed trial court orders that unlawfully took away or subordinated valid liens. See Lamchick, Glucksman & Johnston, P.A. v. City Nat’l Bank of Fla., 659 So.2d 1118, 1120 (Fla. 3d DCA 1995) (holding the trial court erred by allowing a creditor to “leapfrog” over a prior recorded lien); cf. Sharpe v. Calabrese, 528 So.2d 947, 950 (Fla. 5th DCA 1988) (holding that a lien created by a duly entered and recorded money judgment must be accorded its legal effect until it is satisfied by payment, the lien expires, or judicial relief from the underlying judgment is properly granted for a reason recognized in law).

Accordingly, although its intentions were well-meaning, we hold that the trial court abused its discretion in ordering Broward County to execute an agreement to subordinate its liens and in subsequently ruling that the liens were satisfied when Broward County failed to timely execute the agreement. We reject the estate’s argument that the order satisfying the lien was an appropriate sanction for Broward County’s failure to timely comply with the order requiring it to execute the subordination agreement since the order was facially valid. We find that such an extreme sanction would require findings of willfulness, contumaciousness, or deliberate disregard, all of which were absent from the order and not supported in the record. See Boca Casino Cruises, Inc. v. Monte Carlo Cruise Concessions, Inc., 760 So.2d 281, 282 (Fla. 4th DCA 2000). We therefore reverse and remand for proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and TAYLOR, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Carlos LUIS, Javier Rodriguez, Eddie Mor, Adalberto Hernandez, Paul Perito, Nicholas Just and Jose A. Grillo, Respondents.
    No. 4D06-2072.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Rehearing Denied Feb. 7, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Angel L. Fleming, Assistant Attorney General, Miami, for petitioner.
    Edward J. O’Donnell of O’Donnell & O’Donnell, Miami, for respondent Carlos Luis.
    Jane W. Moscowitz of Moscowitz & Mos-cowitz, P.A., Miami, for respondents Dr. Paul Perito and Nicholas Just.
    Lisa Walsh of Lisa S. Walsh P.A., Miami, and Frank Quintero, Jr., of Frank Quintero, Jr., P.A., Coral Gables, for respondent Jose Grillo.
    Bernard M. Cassidy of Bernard M. Cas-sidy, P.A., Fort Lauderdale, for respondent Eddie Mor.
    Joseph S. Rosenbaum of Joseph S. Rosenbaum, P.A., Miami, for respondent Javier Rodriguez.
   On Motions for Rehearing

PER CURIAM.

We deny the motions for rehearing in this case, but withdraw our opinion filed on October 4, 2006, and substitute the following in its place.

We grant the State’s petition for writ of certiorari and quash the May 8, 2006 order of the Broward Circuit Court, consolidating the pending criminal prosecution before it with ongoing proceedings in the Dade Circuit Court and transferring the case to Miami-Dade County for further proceedings. In the two cases, the charges included racketeering, organized scheme to defraud, intent to sell legend drugs and related offenses. The trial court consolidated the cases “in the interest of judicial economy” and because “the overarching schemes” were the same. The State argues that the Broward case charged conduct different from that committed in Dade County. Based on our review, the trial court’s consolidation and effective change of venue from Broward to Dade County constitutes a departure from the essential requirements of law resulting in irreparable harm. See § 910.03,. Fla. Stat. (2006); Fla. R.Crim. P. 3.151, 3.240.

Accordingly, the petition is granted and the underlying order quashed. We note that nothing in the rules precludes a double jeopardy challenge if respondents are subsequently tried in Broward County for charges identical to those in Miami-Dade.

STEVENSON, C.J., KLEIN and GROSS, JJ., concur.


text:
    John Edward LARSEN, Appellant, v. Eva LARSEN, Appellee.
    No. 4D06-1057.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    John Larsen, Plantation, pro se.
    No appearance for appellee.
   PER CURIAM.

The former husband, John Larsen, ap- ' peals a non-final order holding him in contempt for failing to pay his children’s health insurance and unreimbursed medical expenses, setting purge provisions, and modifying his child support obligation. Because the record is devoid of evidence to support the contempt order, we reverse.

At the contempt hearing, the former wife testified that the former husband paid only $500 a month of the more than $1,600 in court-ordered child support, past ar-rearages, reimbursements for medical bills, and health insurance premiums. The former wife admitted she did not know the former husband’s salary or if he had the ability to satisfy his financial obligations. Yet, she stated she “would be surprised” if he was unable to make the payments because he is capable of working and was previously employed as a pilot. The former husband testified that, in addition to paying a portion of his court-ordered obligations, he pays $560 monthly in rent and is required to pay the Internal Revenue Service $200 a month. Based on the former husband’s stipulation that his monthly net income is $1,700, the trial court entered an order finding that the former husband had the ability to pay his court-ordered obligations. The former husband was consequently held in contempt of court and ordered to endorse an income check from one of his employers to the former wife, to pay the former wife $25 by the following day, and to pay an additional $200 a month in child support until the arrearages were paid in full.

Florida Family Law Rule of Procedure 12.615(d)(1) requires that an order of contempt for failure to pay support obligations include factual findings that a pri- or order of support was entered, that all or part of the ordered support was not paid and that the alleged contemnor had the present ability to pay support and willfully failed to comply with the prior court order. Based on our review of the record, we conclude that there was no substantial, competent evidence to support the trial court’s finding that the former husband had the ability to pay the full amount of the previously ordered support and arrearages and willfully refused to pay the same. See Larsen v. Larsen, 854 So.2d 293 (Fla. 4th DCA 2003) (reversing trial court’s order finding former husband in contempt for failing to pay child support because the order was not supported by substantial competent evidence of his ability to pay). Further, we reverse that portion of the order requiring an additional $200 per month in child support until the arrearages are paid as an abuse of discretion since that would make his court-ordered obligations exceed his income. See Butchart v. Butchart, 469 So.2d 965 (Fla. 4th DCA 1985) (holding the amount imposed to reduce child support arrearages must be reasonable). Accordingly, we reverse the order finding the former husband in contempt and likewise vacate the accompanying purge requirements.

Reversed.

STEVENSON, C.J., WARNER and TAYLOR, JJ., concur.


author: ROTHENBERG, Judge.

text:
    DAIMLERCHRYSLER CORPORATION, Petitioner, v. Beatrice HURST, as Personal Representative of the Estate of Kenneth Hurst, et al., Respondents.
    No. 3D06-2593.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.

      Bell & Melamed and Jeffrey M. Bell, Fort Lauderdale, for petitioner.
    David M. Lipman and Rebecca S. Shull and Marisol Estevez, Miami; Jonathan Ruckdeschel, Maryland, for respondents.
    Ullman, Bursa, Hoffman & Ragano and Daniel S. Green; Fowler, White, Boggs & Banker and Tracy Raffles Gunn, Tampa, for Florida Defense Lawyers Association, as amicus curiae.
    Shook, Hardy & Bacon and Frank Cruz-Alvarez, Miami, for The Associated Industries of Florida, American Insurance Association, Chamber of Commerce of the United States of America, American Tort Reform Association, American Chemistry Council, and National Association of Manufacturers, as amicus curiae.
    Before WELLS, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, DaimlerChrysler Corporation (“DCC”), sought dismissal in the trial court of the plaintiffs’ asbestos claim based upon the plaintiffs’ failure to satisfy the “prima facie” requirement under section 774.204(3) of the Asbestos and Silica Compensation Fairness Act (“the Act”). The trial court denied DCC’s motion, finding section 774.201, et seq., Florida Statutes (2005), “unconstitutionally retroactive as applied” to the plaintiffs, Beatrice Hurst, as Personal Representative of the Estate of Kenneth Hurst, et al. (collectively referred to as “the plaintiff’), thereby relieving the plaintiffs compliance with the requirements of the Act. DCC petitions this court for a writ of certiorari, seeking quashal of the denial of its motion to dismiss and the trial court’s findings regarding the constitutionality of the Act. We grant DCC’s petition, quash the order under review, and remand for further proceedings.

PROCEDURAL HISTORY

In August 2004, Kenneth Hurst (“Mr. Hurst”) was diagnosed with lung cancer. Although Mr. Hurst was previously a smoker, he had not smoked cigarettes for approximately thirteen years prior to the diagnosis of his lung cancer. In November 2004, Mr. Hurst filed suit against DCC and other defendants, alleging that he was exposed to asbestos and the exposure to asbestos caused his lung cancer. In April 2005, Mr. Hurst died of lung cancer. Thereafter, Mr. Hurst’s wife, Beatrice Hurst, as Personal Representative of the Estate of Kenneth Hurst, et al., was substituted as the plaintiff.

Section 774.204(8) of the Act provides that “[a] person who is a smoker may not file or maintain a civil action alleging an asbestos claim which is based upon cancer of the lung, larynx, pharynx, or esophagus in the absence of a prima facie showing that includes all of the following requirements: .... ” (emphasis added). DCC moved to dismiss the lawsuit based upon the plaintiffs failure to provide evidence satisfying the “pri-ma facie” showing under this section of the Act. At the hearing on DCC’s motion, the plaintiff conceded that she could not satisfy the Act’s prima facie showing, and argued that the Act’s retroactive application to her claim violated her due process rights and was, therefore, unconstitutional.

The trial court found that the plaintiff had a “vested right which cannot be altered by legislation like the instant Act.” The trial court, therefore, concluded that “the Act is unconstitutionally retroactive as applied to the [plaintiff]” and denied DCC’s motion to dismiss.

In its petition for writ of certio-rari, DCC does not assert that the trial court failed to afford it procedural due process. Thus, we must determine whether the trial court departed from the essential requirements of law in denying DCC’s motion to dismiss. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003)(stating that certiorari review is “limited to those instances where the lower court did not afford procedural due process or departed from the essential requirements of law”). However, “[a] district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Kaklamanos, 843 So.2d at 889 (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000)). Furthermore, validly enacted statutes are presumed constitutional, see Chicago Title Ins. Co. v. Butler, 770 So.2d 1210, 1214 (Fla.2000), and the issue of whether a statute is constitutional is a question of law. See Caribbean Conservation Corp., Inc. v. Fla. Fish & Wildlife Conservation Comm’n, 838 So.2d 492, 500 (Fla.2003).

DCC contends that the trial court violated clearly established law by finding that the retroactive application of the Act is violative of the plaintiffs due process rights. We agree. As the plaintiff concedes that she cannot satisfy the “prima facie showing” of section 774.204(3), Florida Statutes (2005), we grant the petition, quash the order under review, and remand to the trial court for entry of an order granting DCC’s motion to dismiss.

LEGAL ANALYSIS

The Florida Legislature recognized that “exposure to asbestos has created a flood of litigation in state and federal courts that the United States Supreme Court in Ortiz v. Fibreboard Corporation, [527 U.S. 815, 821,] 119 S.Ct. 2295, 2302, 144 L.Ed.2d 715 (1999), has characterized as an ‘elephantine mass’ of cases that ‘defies customary judicial administration’_” H.R. 1019, 2005 Leg., Reg. Sess. (Fla.2005), Ch.2005-274, at 2563, Laws of Fla. Additionally, the legislature recognized that “the vast majority of asbestos claims are filed by individuals who allege they have been exposed to asbestos and who may have some physical sign of exposure but who suffer no present asbestos-related impairment....” H.R. 1019, 2005 Leg., Reg. Sess. (Fla. 2005), Ch.2005-274, at 2564, Laws of Fla. Thus, the legislature provided that the Act, which became effective on July 1, 2005, applies to all asbestos claims “in which trial has not commenced as of [July 1, 2005].”

The stated purpose of the Act is set forth in section 774.202, Florida Statutes (2005), as follows:

Purpose. — It is the purpose of this act to:
(1) Give priority to true victims of asbestos and silica, claimants who can demonstrate actual physical impairment caused by exposure to asbestos or silica;
(2) Fully preserve the rights of claimants who were exposed to asbestos or silica to pursue compensation if they become impaired in the future as a result of the exposure;
(3) Enhance the ability of the judicial system to supervise and control asbestos and silica litigation; and
(4) Conserve the scarce resources of the defendants to allow compensation to cancer victims and others who are physically impaired by exposure to asbestos or silica while securing the right to similar compensation for those who may suffer physical impairment in the future.

In an attempt to achieve its stated purpose, the legislature enacted section 774.204(3)(a), Florida Statutes (2005), which provides that “[a] person who is a smoker may not file or maintain a civil action alleging an asbestos claim which is based upon cancer of the lung ... in the absence of a prima facie showing that includes,” in part, “[a] diagnosis by a qualified physician ... that exposure to asbestos was a substantial contributing factor to the condition.” The Act clearly provides that the statute of limitations period “does not begin to run until the exposed person discovers, or through the exercise of reasonable diligence should have discovered, that he or she is physically impaired by an asbestos-related or silica-related condition,” § 774.206(1), Fla. Stat. (2005), thereby protecting individuals who have been exposed to asbestos, but may not manifest an asbestos-related injury for numerous years.

While the plaintiffs argument before the trial court was that the Act’s retroactive application was unconstitutional as applied to her case, she has taken a broader position before this court, arguing that the Act’s retroactive application would be unconstitutional as applied to any individual who was exposed to asbestos prior to the enactment of the Act, even if the asbestos-related injury does not manifest itself until some time in the future, well after the Act’s effective date. As the plaintiff argued below that the Act was unconstitutional as applied to her case, we must determine whether the Act divested Mr. Hurst (and now his estate) of a vested right, in violation of the plaintiffs due process rights.

The Florida Supreme Court in Metropolitan Dade County v. Chase Federal Housing Corp., 737 So.2d 494 (Fla. 1999), clearly articulated the standard upon which retroactive application of a statute must be analyzed:

Two interrelated inquiries arise when determining whether statutes should be retroactively applied. The first inquiry is one of statutory construction: whether there is clear evidence of legislative intent to apply the statute retrospectively. If the legislation clearly expresses an intent that it apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible.

Id. at 499 (citations omitted); see also Promontory Enters., Inc. v. S. Eng’g & Contracting, Inc., 864 So.2d 479, 483 (Fla. 5th DCA 2004)(“It is firmly established that a statute may be retroactively applied if: 1) there is clear evidence that the Legislature intended to apply the statute retroactively; and 2) retroactive application is constitutionally permissible.”.). “The general rule is that in the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively.” Chase Federal, 737 So.2d at 499 (citations omitted).

In the instant case, the parties acknowledge that the legislature clearly intended for the Act to apply retroactively. See H.R. 1019, 2005 Leg., Reg. Sess. (Fla. 2005), Ch.2005-274, § 10, at 2564, Laws of Fla. (“Therefore, the act shall apply to any civil action asserting an asbestos claim in which trial has not commenced as of the effective date of this act.”). As it is clear that the legislature intended that the Act be applied retroactively, we need not perform a statutory construction analysis. Our review is, therefore, limited to resolving the question of whether the retroactive application of the Act is constitutionally permissible.

We begin our constitutional analysis by recognizing that the retrospective application of a legislative act is not necessarily invalid. It is when the retroactive application of a statute impairs vested rights, creates new obligations, or imposes new penalties, that the courts have found the statute to be unconstitutional.

A retrospective provision of a legislative act is not necessarily invalid. It is so only in those cases wherein vested rights are adversely affected or destroyed or when a new obligation or duty is created or imposed, or an additional disability is established, on connection with transactions or considerations previously had or expiated. McCord v. Smith, 43 So.2d 704, 708-09 (Fla.1949); cf. Laforet, 658 So.2d at 61.[] Generally, due process considerations prevent the State from retroactively abolishing vested rights. See Knowles, 402 So.2d at 1158.[] Thus, retroactive abolition of substantive vested rights is prohibited by constitutional due process considerations. See Rupp v. Bryant, 417 So.2d 658, 665-66 (Fla.1982).

Chase Federal, 737 So.2d at 503; see also State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.l995)(“Even when the Legislature does expressly state that a statute is to have retroactive application, this Court has refused to apply a statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties.”); Basel v. McFarland & Sons, Inc., 815 So.2d 687, 692 (Fla. 5th DCA 2002)(“Even when the legislature expressly states that a statute is to have retroactive application, courts will refuse to apply the statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties.”).

The legislature in enacting the Act claimed that the Act does not “impair vested rights” because “the [A]ct expressly preserves the right of all injured persons to recover full compensatory damages for their loss.” H.R. 1019, 2005 Leg., Reg. Sess. (Fla.2005), Ch.2005-274, § 10, at 2564, Laws of Fla.

The plaintiff, however, argues that the retroactive application of that portion of the Act, section 774.204(3), which requires that she make a prima facie showing that her husband’s exposure to asbestos was a substantial contributing factor to his condition (lung cancer) to maintain her cause of action against DCC, divests her of a substantive vested right. We disagree.

“A substantive vested right is an immediate right of present enjoyment, or a present fixed right of future enjoyment.” Clausell v. Hobart Corp., 515 So.2d 1275, 1276 (Fla.l987)(quoting In re Will of Martell, 457 So.2d 1064, 1067 (Fla. 2d DCA 1984)). “To be vested[,] a right must be more than a mere expectation based on an anticipation of the continuance of an existing law....” Clausell, 515 So.2d at 1276 (Fla.l987)(quoting Div. of Workers’ Comp., Bureau of Crimes Comp. v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982))(quoting Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex.Civ.App.l975))(em-phasis added); see also Notami Hosp. of Fla., Inc. v. Bowen, 927 So.2d 139, 143 (Fla. 1st DCA 2006).

In Clausell, the Florida Supreme Court addressed whether the retroactive application of one of its decisions to the plaintiffs products liability cause of action, violated the plaintiffs due process rights. In 1980, the Florida Supreme Court held in Battilla v. Allis Chalmers Manufacturing Co., 392 So.2d 874 (Fla.1980), that the twelve-year statute of repose in products liability actions, section 95.031(2), Florida Statutes (1975), was unconstitutional as applied because it denied access to the courts. Thus, when Mr. Clausell’s products liability action accrued in 1982, the twelve-year statute of repose was inapplicable, as it had been declared unconstitutional in Battilla in 1980. In 1985, however, the Florida Supreme Court in Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla.1985), held that the statute of repose in products liability actions was constitutional, thereby receding from its earlier decision in Battilla. As a result of the retroactive application of the Pullum decision, Mr. Clausell’s products liability action was barred based on the statute of repose.

The Florida Supreme Court in Clausell found that the retroactive application of the Pullum decision did not violate Mr. Clausell’s due process rights, as “Clausell had no vested right in his cause of action,” and therefore, “suffered no deprivation of due process under the United States Constitution.” Clausell, 515 So.2d at 1276. In support of its finding, the Court relied upon Lamb v. Volkswagenwerk Aktienge-sellschaft, 631 F.Supp. 1144 (S.D.Fla.1986), which held as follows:

While the instant Plaintiff correctly posits that a statute may not be retroactively applied to deprive a party of a vested right, such a situation simply does not exist here. “A statute is not unconstitutionally retrospective in its operation unless it impairs a substantive, vested right. A substantive vested right is an immediate right of present enjoyment, or a present fixed right of future enjoyment.” In re Will of Martell, 457 So.2d 1064, 1067 (Fla. 2d DCA 1984). “To be vested[,] a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand.” Division of Workers’ Compensation v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982)(em-phasis added). The Plaintiff in the instant case had no vested contract or property right prior to the Pullum decision; instead Plaintiff was merely pursuing a common law tort theory to recover damages.

Clausell, 515 So.2d at 1276 (quoting Lamb, 631 F.Supp. at 1149).

In the instant case, when the plaintiff filed her asbestos claim against DCC in November 2004, she was pursuing a common law tort theory. As recognized in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 88 n. 32, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978),

[o]ur cases have clearly established that a person has no property, no vested interest, in any rule of the common law. The Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object, despite the fact that otherwise settled expectations may be upset thereby.

(Quotations, citations, and alterations omitted).

In 2005, the legislature enacted the Act which set forth specific requirements for filing or maintaining asbestos claims. Pri- or to the enactment of the Act, the plaintiff had, at most, a “mere expectation” that the common law would not be altered by legislation. Lamb, 631 F.Supp. at 1149 (recognizing that for a right to be vested, it “must be more than a mere expectation based on an anticipation of the continuance of an existing law”). Thus, the plaintiff did not have a vested right in her common law asbestos claim.

The plaintiff’s expectancy is clearly distinguishable from those situations which involve a vested right. See Forbes Pioneer Boat Line v. Bd. of Comm’rs of Everglades Drainage Dist., 258 U.S. 338, 339, 42 S.Ct. 325, 66 L.Ed. 647 (1922)(holding that the “legislature [could not] take away from a private party a right to recover money that is due when the [legislative] act is passed”); State, Dep’t of Transp. v. Knowles, 402 So.2d 1155 (Fla.l981)(holding that a statute granting state employees immunity from tort liability for negligent acts in the course of their employment could not constitutionally be applied to defeat a judgment against an employee that was obtained prior to the effective date of the statute); City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513 (1935)(hold-ing that a vested right under a judgment levy could not be abrogated by a subsequently enacted statute).

Although we have concluded that the plaintiff does not have a “vested right” in her common law cause of action against DCC, we also address DCC’s assertion that the trial court departed from the essential requirements of law by not finding that the Act is procedural in nature and, therefore, may be applied retroactively. See Village of El Portal v. City of Miami Shores, 362 So.2d 275, 278 (Fla.1978)(noting that procedural statutes “do not fall within the constitutional prohibition against retroactive legislation and they may be held immediately applicable to pending cases”); see also McCord v. Smith, 43 So.2d 704, 709 (Fla.1949). “[Substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994); see also Shaps v. Provident Life & Accident Ins. Co., 826 So.2d 250, 254 (Fla.2002); Life Care Ctrs. of Am., Inc. v. Sawgrass Care Ctr., Inc., 683 So.2d 609, 613 (Fla. 1st DCA1996).

Section 774.204(3) does not impair or eliminate the plaintiffs right to sue for asbestos-related injuries. Rather, section 774.204(3) sets forth the procedures a plaintiff must follow to file or maintain an asbestos cause of action when the alleged injured person is/was a smoker with lung cancer. This section sets forth the plaintiffs burden of proof (“[a] person who is a smoker may not file or maintain a civil action alleging an asbestos claim which is based upon cancer of the lung ... in the absence of a prima facie showing that includes,” in part, “[a] diagnosis by a qualified physician ... that exposure to asbestos was a substantial contributing factor to the condition”), and shifts the timing of when the plaintiff must present evidence that exposure to asbestos substantially contributed to the alleged injury. As section 774.204(3) of the Act merely affects the means and methods the plaintiff must follow when filing or maintaining an asbestos cause of action, the provision is procedural in nature, and may be applied retroactively. See Shaps, 826 So.2d at 254 (recognizing that “generally in Florida the burden of proof is a procedural issue”); Stuart L. Stein, P.A. v. Miller Indus., Inc., 564 So.2d 539, 540 (Fla. 4th DCA 1990)(holding that “increasing the burden of proof to a ‘clear and convincing’ standard did not amount to a substantive change in the statutory scheme” and therefore, may be applied retroactively).

Based upon our findings and analysis, we do not need to address the remaining arguments raised by DCC. Accordingly, we grant the petition for writ of certiorari, quash the order under review, and remand for entry of an order granting DCC’s motion to dismiss.

Petition granted.

      . The requirements listed under section 774.204(3), Florida Statutes (2005), are as follows:
      (a) A diagnosis by a qualified physician who is board certified in pathology, pulmonary medicine, or oncology, as appropriate for the type of cancer claimed, of a primary cancer of the lung, larynx, pharynx, or esophagus, and that exposure to asbestos was a substantial contributing factor to the condition.
      (b) Evidence sufficient to demonstrate that at least 10 years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the cancer.
      (c) Radiological or pathological evidence of asbestosis or diffuse pleural thickening or a qualified physician’s diagnosis of asbestosis based on a chest X ray graded by a certified B-reader as at least 1/0 on the ILO scale and high-resolution computed tomography supporting the diagnosis of asbestosis to a reasonable degree of medical certainty.
      (d) Evidence of the exposed person’s substantial occupational exposure to asbestos. If a plaintiff files a civil action alleging an asbestos-related claim based on cancer of the lung, larynx, pharynx, or esophagus, and that plaintiff alleges that his or her exposure to asbestos was the result of extended contact with another exposed person who, if the civil action had been filed by the other exposed person, would have met the substantial occupational exposure requirement of this subsection, and the plaintiff alleges that he or she had extended contact with the exposed person during the time period in which that exposed person met the substantial occupational exposure requirement of this subsection, the plaintiff has satisfied the requirements of this paragraph. The plaintiff in such a civil action must individually satisfy the requirements of this subsection.
      (e) If the exposed person is deceased, the qualified physician, or someone working under the direct supervision and control of a qualified physician, may obtain the evidence required in paragraphs (b) and (d) from the person most knowledgeable about the alleged exposures that form the basis of the asbestos claim.
      (f) A conclusion by a qualified physician that the exposed person’s medical findings and impairment were not more probably the result of causes other than the asbestos exposure revealed by the exposed person’s employment and medical histoiy. A conclusion that the medical findings and impairment are "consistent with” or "compatible with” exposure to asbestos does not meet the requirements of this subsection.

      . H.R. 1019, 2005 Leg., Reg. Sess. (Fla.2005), Ch.2005-274, § 10, at 2579, Laws of Fla.

      . The Act defines "smoker” as "a person who has smoked cigarettes or used other tobacco products on a consistent and frequent basis within the last 15 years.” § 774.203(29), Fla. Stat. (2005).

      . State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla.1995).

      . State, Dep’t of Transp. v. Knowles, 402 So.2d 1155 (Fla. 1981).

      . Chapter 2005-274, section 10, provides as follows:
      This act shall take effect July 1, 2005. Because the act expressly preserves the right of all injured persons to recover full compensatory damages for their loss, it does not impair vested rights. In addition, because it enhances the ability of the most seriously ill to receive a prompt recovery, it is remedial in nature. Therefore, the act shall apply to any civil action asserting an asbestos claim in which trial has not commenced as of the effective date of this act.


author: WOLF, J.

text:
    Hardy L. RUTH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5207.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    Tracy S. Carlin of Mills & Creed, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant asserts that the trial court erred in summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find only one of his contentions has merit. The trial court erred in summarily denying appellant’s claim alleging ineffective assistance of counsel for failing to seek sentencing under the Youthful Offender Act. We, therefore, reverse and remand for the trial court to conduct an evidentiary hearing or to allow for resentencing where the trial court shall consider appellant’s request to be resentenced as a youthful offender.

In the instant case, appellant asserts he was eighteen years old at the time of the robberies. Thus, appellant opines that his counsel should have advised the trial court of the option to sentence appellant as a youthful offender pursuant to section 958.04, Florida Statutes (2003), which authorizes the imposition of a sentence exceeding no more than 6 years’ imprisonment for those individuals committing crimes prior to their 21st birthdays and who meet the enumerated criteria. The trial court denied this claim based on section 958.04’s specific wording which states that an individual may not be sentenced as a youthful offender if the individual was convicted of a life felony. In its order denying relief on this claim, the trial court opined that, although appellant was convicted of a first degree felony (armed robbery), which would allow for a youthful offender sentence, the first degree felony was reclassified to a life felony pursuant to section 775.087(1), Florida Statutes (2003), which mandates reclassification in the following circumstances:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: (a) In the case of a felony of the first degree, to a life felony.

(Emphasis added).

It appears this denial was in error for several reasons. First, the trial court appears to have confused which subsection of the 10/20/life statute applied to appellant. Specifically, the trial court appears to have relied on section 775.087(1), Florida Statutes (2003), to support its finding that appellant was convicted of a life felony, and thus, not eligible for youthful offender sentencing. However, a plain reading of that subsection requires reclassification only where the use of a weapon or firearm was not an essential element of the crime. In the instant case, appellant was convicted of armed robbery pursuant to section 812.13(2)(a), Florida Statutes (2003), which states:

(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added).

Thus, appellant was convicted of a crime in which the use of a weapon was an essential element. As such, section 775.087(l)’s reclassification requirement would not apply to appellant, and the trial court was in error to conclude otherwise. See Williams v. State, 850 So.2d 656 (Fla. 1st DCA 2003) (holding offense of attempted armed robbery could not be enhanced pursuant to section 775.087(1) because use of a weapon is an essential element of the offense); Tripp v. State, 610 So.2d 1311, 1312 (Fla. 1st DCA 1992) (reversing reclassification of attempted armed robbery pursuant to section 775.087(1) because the use of a weapon was an essential element of the underlying offense). Further, both appellant and the trial court concede that appellant was sentenced to 20 years’ imprisonment with a 10 year minimum mandatory. A life felony carries a minimum sentence of 30 years’ imprisonment. § 775.082(3)(a)(l), Fla. Stat. (2003). Thus, the record reflects appellant was not sentenced to a life felony.

However, appellant’s sentence was enhanced through the imposition of a ten year minimum mandatory pursuant to section 775.087(2)(a), Florida Statutes (2003), which requires the imposition of a ten year minimum mandatory where an individual is convicted of armed robbery due to his use of a firearm. An individual sentenced pursuant to the Youthful Offender Act may receive a maximum of six years’ imprisonment. § 958.04(2)(a), Fla. Stat. (2003). Thus, the ten year minimum mandatory requirement of the 10/20/life statute appears to be in conflict with the maximum allowable sentences authorized by the Youthful Offender Act.

In State v. Drury, this court addressed the conflict and ultimately held that a trial court may sentence a defendant to a youthful offender sentence in lieu of the 10/20/life statute’s minimum mandatory requirements. 829 So.2d 287 (Fla. 1st DCA 2002); see also Holmes v. State, 638 So.2d 986 (Fla. 1st DCA 1994) (holding that the express language of section 958.04(2), which authorizes the discretion to sentence the appellant as a youthful offender “in lieu of other criminal penalties authorized by law,” provides that a 10/20/life reclassification to a life felony does not preclude sentencing as a youthful offender). As such, the trial court incorrectly ruled that the original sentencing court lacked discretion to sentence appellant as a youthful offender. We, therefore, remand this case to the trial court for further proceedings.

VAN NORTWICK and LEWIS, JJ., concur.

      . We note, however, that if appellant is entitled to the requested relief, he is merely entitled to a resentencing in which the trial court is fully informed of its discretion to sentence appellant as a youthful offender; appellant is not necessarily entitled to resentencing as a youthful offender. See Holmes, 638 So.2d at 987.


author: SAWAYA, J.

text:
    T.L.S. a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-55.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

We are once again confronted with the issue of imposition of criminal statutory costs in a juvenile case. Specifically, we must decide whether the trial court properly imposed costs under section 775.083(2), Florida Statutes (2005), in the amount of $20, and section 939.185(l)(a), Florida Statutes (2005), in the amount of $65, in a juvenile proceeding that concluded with an order withholding adjudication of delinquency for the offense of domestic battery. We believe that the costs were improperly assessed and, therefore, reverse that part of the order under review.

At the outset, we observe that T.L.S. preserved the issue for review by filing a Motion to Correct Sentencing Error pursuant to Florida Rule of Juvenile Procedure 8.135 with the trial court. The court considered the motion without a hearing and denied it. Because we resolve a purely legal issue, our standard of review is de novo. See Daniels v. Florida Dep’t of Health, 898 So.2d 61, 64 (Fla.2005) (“The question before us is a matter of statutory interpretation and is a question of law subject to de novo review.”) (citing State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001)).

Our analysis begins with V.K.E. v. State, 934 So.2d 1276 (Fla.2006), wherein the court considered whether “ ‘a trial judge [has] the power and authority to impose on juveniles in a juvenile delinquency proceeding, the mandatory surcharges set forth in sections 938.08 and 93[8].085[.]’ ” Id. at 1277 (quoting V.K.E. v. State, 902 So.2d 343, 344 (Fla. 5th DCA 2005)). The court answered the question in the negative, explaining:

[FJirst, the Legislature has created a juvenile justice system as a totally separate and distinct rehabilitative alternative to the punitive criminal justice system, and not as a subset of that system with all of its attendant punitive measures and costs; second, the Legislature has expressly provided in certain instances for the taxation of criminal justice costs and surcharges against delinquents but has not done so here; and third, the Legislature has actually spoken on the issue before us by expressly providing that court fees and costs should not ordinarily be imposed in juvenile proceedings. Moreover, we conclude that a contrary holding would open the door to the assessment in juvenile proceedings of the unrelated costs, fees, and surcharges provided for in the adult criminal system without a clear legislative mandate to do so. This in turn would impair the ability of the juvenile system to focus on and serve its legislatively mandated rehabilitative function.

Id. at 1278 (footnotes omitted).

Following the directive of V.K.E., we must determine whether there is a clear legislative mandate to have sections 775.083(2) and 939.185 apply to juveniles, and if so, whether they apply in the absence of an adjudication of delinquency or entry of a plea. The text of each statute is the starting point for our analysis and so we begin there, first with section 775.083(2), which provides:

(2) In addition to the fines set forth in subsection (1), court costs shall be assessed and collected in each instance a defendant pleads nolo contendere to, or is convicted of, or adjudicated delinquent for, a felony, a misdemeanor, or a criminal traffic offense under state law, or a violation of any municipal or county ordinance if the violation constitutes a misdemeanor under state law. The court costs imposed by this section shall be $50 for a felony and $20 for any other offense and shall be deposited by the clerk of the court into an appropriate county account for disbursement for the purposes provided in this subsection. A county shall account for the funds separately from other county funds as crime prevention funds. The county, in consultation with the sheriff, must expend such funds for crime prevention programs in the county, including safe neighborhood programs under ss. 163.501-163.523.

§ 775.083(2), Fla. Stat. (2005) (emphasis added). Although this statute applies to juveniles, it does not provide for the imposition of costs in the absence of an adjudication of delinquency. The trial court issued a judicial warning and withheld adjudication of dependency and, therefore, it incorrectly imposed the $20 cost pursuant to section 775.083(2). Parenthetically, we note that, based on a reading of section 938.03, which imposes a $50 cost regardless of whether adjudication has been entered or withheld, it is clear that the Legislature knows how to make provision for imposition of costs in juvenile proceedings in the absence of adjudication. § 938.03(1), Fla. Stat. (2005) (“Any person whose adjudication is withheld shall also be assessed such cost.”). Since it did not do so within the structure of section 775.083, it is clear from both the language of the statute and its omissions that the Legislature did not intend to have costs imposed under that statute in the absence of an adjudication of delinquency.

T.L.S. also contends that the trial court erred in imposing the $65 cost pursuant to section 939.185, which provides in pertinent part:

(l)(a) The board of county commissioners may adopt by ordinance an additional court cost, not to exceed $65, to be imposed by the court when a person pleads guilty or nolo contendere to, or is found guilty of, any felony, misdemeanor, or criminal traffic offense under the laws of this state.

§ 939.185(l)(a), Fla. Stat. (2005) (emphasis added). A plain reading of the statute indicates that the $65 cost pursuant to section 939.185(l)(a) is not intended to apply to juveniles. There is no mention of delinquency in the statutory provision and, therefore, based on the holding in V.K.E., this omission indicates the cost is not to be assessed in juvenile proceedings. See M.D.J. v. State, 936 So.2d 774 (Fla. 5th DCA2006).

We reverse that part of the order assessing the costs previously discussed.

REVERSED in part.

GRIFFIN and EVANDER, JJ., concur.

      . Although the order captioned "Order Of Charges/Costs/Fees” imposes other costs and fees, those assessments are not contested by T.L.S.

      . The order imposing the specific costs suspended collection of the $65 cost until further notice from the trial court. The parties mention that the suspension may have been based on the fact that V.K.E. was pending before the Florida Supreme Court at the time. However, the record is silent as to the reason for the suspension.


text:
    AIRCRAFT SERVICE INTERNATIONAL, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 5D06-2276.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2007.
    Chelsie J. Roberts, of Ford & Harrison LLP, Orlando, for Appellant.
    Louis A. Gutierrez, of the Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Fink v. Florida Unemployment Appeals Comm’n, 665 So.2d 373 (Fla. 4th DCA 1996).

PALMER, ORFINGER and MONACO, JJ., concur.


author: BROWNING, C.J.

text:
    PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. NATIONWIDE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 1D06-2159.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2007.

      Harris Brown, Jacksonville, for Appellant.
    Charles W. Hall and Mark D. Tinker of Fowler, White, Boggs & Banker, P.A., St. Petersburg, for Appellee.
   BROWNING, C.J.

A pedestrian hit by a car sued both the driver, insured by Nationwide, and his employer, insured by Progressive. Nationwide provided $100,000 of coverage; Progressive provided $1,000,000. Both insurers had a duty to defend, under the language of their policies. Both policies contained “other insurance” clauses; Nationwide’s explained it would be liable “for only our share of the loss if there is other collectible liability insurance,” and Progressive’s characterized its coverage as “excess over any other valid and collectible insurance whether primary, excess or contingent.”

Nationwide defended the claim; Progressive declined to defend. After settlement attempts failed, the jury returned a verdict for the pedestrian, in an amount over Nationwide’s coverage limit, which Progressive was forced to pay. Progressive sued Nationwide, alleging (among other claims) bad faith in the defense of their insured at trial. Nationwide moved for summary judgment, and the motion was granted on the reasoning that Nationwide did not owe Progressive such a duty. Progressive now seeks review of that ruling.

It is undisputed that Nationwide is the primary carrier and Progressive the excess carrier because, in Florida, where two policies each contain “other insurance” clauses but one is “pro rata” and the other is “excess insurance,” effect is given to the latter. See Demshar v. AAACon Auto Transp., Inc., 337 So.2d 963, 965 (Fla. 1976). Moreover, in Florida, a primary carrier owes a duty of good faith to an excess carrier — the same duty it owes its insured. Ranger Ins. Co. v. Travelers Indem. Co., 389 So.2d 272, 275 (Fla. 1st DCA 1980). This duty stems from equitable subrogation principles, in that, in the event of an award over the primary insurer’s policy limits, the excess insurer incurs the same duty to pay that the insured would have in the absence of an excess insurer, and correspondingly the excess insurer has the same right to sue the primary insurer for bad faith as the insured. Id.; United States Auto. Ass’n v. Hartford Ins. Co., 468 So.2d 545, 547 (Fla. 5th DCA 1985). Therefore, Nationwide owed Progressive a duty of good faith. Accordingly, we REVERSE the summary judgment for Nationwide, and REMAND for further proceedings.

WOLF and KAHN, JJ., concur.


author: CORTIÑAS, Judge. SCHWARTZ, Senior Judge

text:
    Andrew and Donna BOTT, Appellants, v. CITY OF MARATHON, Appellee.
    No. 3D06-1261.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Rehearing Denied March 15, 2007.
    Lee Robert Rohe, Summerland Key, for appellants.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson and Mark D. Solov and John R. Herin, Jr. and Adam M. Schachter, Marathon, for appellee.
    Before WELLS and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

The plaintiffs, Andrew and Donna Bott (the “Botts”), appeal from an order dismissing their amended complaint against the defendant, the City of Marathon (“City”), with prejudice. We affirm.

On May 1, 2000, the Botts executed and recorded an Affordable Housing Restrictive Covenant (“Covenant”) with the City. Several years later, the Botts chose to sell their home and inquired with the City Planner as to the allowable sales price for their home as restricted by the Covenant. The City responded, informing the Botts that, pursuant to the terms of the Covenant, a purchaser must meet the affordable housing income criteria of the City’s code. Subsequently, on September 30, 2005, the Botts filed a declaratory judgment action against the City.

The City moved to dismiss the Botts’ complaint arguing that the claims were barred by the applicable statute of limitations. The Botts did not respond to the City’s motion and, instead, filed an amended pleading. The amended complaint alleged that, pursuant to the Covenant, the Botts’ causes of action did not accrue until the certificate of occupancy (“CO”) was issued by the City on June 17, 2002. Thereafter, the City moved to dismiss the amended complaint on the grounds that the claims, as alleged, remained time barred, and also because the Botts failed to state a claim upon which relief could be granted. The trial court granted the City’s motion to dismiss with prejudice.

We find that the facts pled in the Botts’ complaint conclusively establish that the claims are time barred as a matter of law and, thus, dismissal was proper.

A motion to dismiss a complaint based on the expiration of the statute of limitations should be granted “in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law.”

Alexander v. Suncoast Builders, Inc., 837 So.2d 1056, 1057 (Fla. 3d DCA 2002) (quoting Rigby v. Liles, 505 So.2d 598, 601 (Fla. 1st DCA 1987)). Furthermore, when considering a motion to dismiss, a trial court is required to consider any exhibit attached to, or incorporated in the pleading. See Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736, 736 (Fla. 3d DCA 1971) (stating that “[i]n considering a motion to dismiss the trial court was required to consider the exhibit ... attached to and incorporated in the amended complaint” and quoting Florida Rule of Civil Procedure 1.130(b), providing that “[a]ny exhibit attached to a pleading shall be considered a part thereof for all purposes”). Here, a photocopy of the Covenant was attached as an exhibit to the amended complaint. The Covenant clearly indicated that the contract was executed with the City on May 1, 2000.

We find no merit in the Botts’ contention that the issuance of the CO was a condition precedent which had to occur before the limitations period began to accrue. Here, the lawsuit was in the nature of a declaratory judgment action. All of the elements required to prevail in a declaratory judgment were present from the date of execution of the contract, thus, the Botts’ cause of action accrued on such date. See City of Hollywood v. Petrosino, 864 So.2d 1175, 1177-78 (Fla. 4th DCA 2004)(finding that to state a cause of action for declaratory relief five elements must be met, including a present controversy as to an ascertainable state of facts and a present and adverse interest in the subject matter) (citations omitted). Accordingly, any action predicated on this contract had to commence within five (5) years from May 1, 2000. See § 95.11(2)(b), Fla. Stat. (2000) (providing a five year statute of limitations applicable to a legal or equitable action on a contract founded on a written instrument). Because the Botts filed the original complaint on September 30, 2005, five months after the expiration of the limitations period, their claims are time barred.

Affirmed.

WELLS, J., concurs.

SCHWARTZ, Senior Judge

(specially concurring).

I concur in the conclusion on the ground that the complaint patently fails to state a claim upon which relief may be granted under the law.

      . The Botts relied on the provision in the Covenant that states in relevant part, "[t]he covenant(s) ... shall not commence running until the Certificate of Occupancy has been issued by the building official for the dwelling unit(s) to which the covenant(s) apply.”