author: HAWKES, J.

text:
    Lalisa DAVIS, Appellant, v. Wash HINSON and Geraldine Hinson, Appellees.
    No. 1D10-4778.
    District Court of Appeal of Florida, First District.
    July 18, 2011.

      Yaw Akuoko, Tallahassee, for Appellant.
    Tracy P. Moye, of the Moye Law Firm, Tallahassee, for Appellees.
   HAWKES, J.

This appeal concerns whether Appellees (the Hinsons) had sufficient possessory interest in an eleven-acre parcel of land to bring an action to quiet title and for ejectment against Appellant (Davis). The trial court granted both causes of action, finding the Hinsons were entitled to sole possession of the parcel in question through a legal deed, and ordered Davis to relinquish any possessory claims to the property. We reverse as the Hinsons’ deed to the parcel was invalid; therefore, they had no standing to bring an action to quiet title or for ejectment.

Facts

In March 2010, the Hinsons brought a complaint to quiet title and for ejectment against Davis. The complaint alleged the following timeline of events based on several attached deeds:

• July 1983 — Geraldine Hinsons’ parents recorded a quit-claim deed conveying a tract of approximately 74 acres. The recipients were Geraldine, her six siblings, and several of the siblings’ spouses. The deed named each recipient a tenant in common without a right of survivorship.
• September 1989 — The tenants in common signed a deed conveying an eleven-acre portion of the 74-aere tract to the Hinsons for their exclusive use and possession. At the time it was signed, the deed did not include a description of the exact eleven-acre parcel being conveyed.
• August 1990 — The Hinsons recorded the September 1989 deed. At this time, they attached to the deed a survey describing the exact eleven acres being conveyed. The eleven acres claimed by the Hinsons adjoined a two-acre parcel which they had previously conveyed to Davis.

The complaint went on to allege that Davis had begun to encroach on the boundary separating her two-acre parcel from the Hinsons’ eleven-acre parcel. In particular, Davis had strewn personal property over the boundary line and built a shed straddling the boundary line.

In response to the complaint, Davis claimed the Hinsons lacked standing to bring causes of action to quiet title or for ejectment as they lacked a valid title or possessory interest in the eleven-acre parcel. In particular, Davis argued that not all tenants in common had signed the September 1989 deed, thereby invalidating its conveyance of the eleven acres.

Following a hearing, the trial court issued an order finding the Hinsons had exclusive title to the eleven-acre parcel. As support, the trial court cited the September 1989 deed. Since the Hinsons had legal title, the court concluded they were entitled to sole possession of the property.

The court went on to state that because the September 1989 deed had been recorded in August 1990, and therefore had been in the records for over twenty years, no claim could be brought to challenge its validity. As authority for this proposition, the court cited section 95.231, Florida Statutes (2010).

Finally, the court found Davis had encroached on 75 feet of the Hinsons’ eleven-acre parcel without obtaining their permission. The trial court emphasized the September 1989 deed gave the Hinsons a superior right to possess this piece of property — as it fell within their eleven acres — and ordered Davis to cease the encroachment and pay damages and costs.

Standard of Review

In this appeal, Davis claims the Hinsons lacked legal standing to bring causes of action to quiet title and for ejectment. Determining whether a party has standing is a pure question of law to be reviewed de novo. See Palm Beach County Envtl. Coalition v. Fla. Dep’t of Envtl. Protection, 14 So.3d 1076, 1077 (Fla. 4th DCA 2009); Alachua County v. Scharps, 855 So.2d 195, 198 (Fla. 1st DCA 2003).

The Hinsons cannot base standing on legal title

To be entitled to recover in an ejectment suit, a plaintiff must show, among other things, that he has a present right to possession. See Demps v. Hogan, 57 Fla. 60, 48 So. 998 (1909); Byrd v. Culver, 376 So.2d 41, 42 (Fla. 4th DCA 1979). A present right to possession may be established in two ways: by demonstrating an enforceable legal title or by showing prior possession (actual or constructive) of the land. See Blitch v. Sapp, 142 Fla. 166, 194 So. 328, 329 (1940); Alford v. Sinclair, 55 So.2d 727, 729 (Fla.1951). When attempting to show enforceable legal title to a particular parcel, a plaintiff may recover only upon the strength of his own title, not the weaknesses of the defendant’s title. See Blitch, 194 So. at 329. This means that even if the defendant has no title to the property at all, a plaintiff cannot recover unless he can demonstrate he holds title and that it is valid. See Alford, 55 So.2d at 729; Blitch, 194 So. at 329-330.

During the proceedings below, the Hinsons successfully argued they had a right to possession based on the deed signed in September 1989. We disagree and find this deed did not give the Hinsons legal title to the eleven-acre parcel for the following two reasons:

First, the deed was not signed by all of the owners of the encompassing 74-acre tract. It is undisputed that one of the original tenants in common died before the September 1989 deed was signed, leaving her interest in the property to her surviving children. One of her children — Rash-unn Lewis — did not sign the deed.

Traditionally, when tenants in common convey interest, they convey only their interest in the partial ownership of the complete parcel. See Morgan v. Cornell, 939 So.2d 344, 346 (Fla. 2d DCA 2006). “[0]ne cotenant cannot bind another, absent that other’s consent, by alienating any specific portion of the estate, since each cotenant owns an interest in the whole which is indivisible except by partition or agreement.” Elmore v. Elmore, 99 So.2d 265, 266 (Fla.1957). Therefore, a cotenant cannot convey exclusive possesso-ry rights to a specific portion of their property unless every cotenant agrees to the conveyance. Id.

Applying these principles here, the September 1989 deed did not give the Hinsons exclusive possessory rights to the eleven-acre parcel as it was not signed by all cotenants with an interest in the land. Because of this, the deed cannot be used to demonstrate valid legal title.

Second, the deed did not convey valid legal title because, at the time it was signed, it did not include a description of the specific eleven acres being conveyed. “To effect a valid conveyance of real property, a deed or other instrument must describe the property such that it is evident that a particular parcel, and not a different or unspecified one, is to be conveyed.” Mendelson v. Great Western Bank, F.S.B., 712 So.2d 1194, 1196 (Fla. 2d DCA 1998). A deed which contains a description so vague that a surveyor would not be able to locate the land is considered a nullity. See Mitchell v. Thomas, 467 So.2d 326, 328 (Fla. 2d DCA 1985).

Here, at the time the deed was signed, it simply stated “this deed was prepared without benefit of abstract; legal description having been furnished by grantors.” The exact description of the eleven acres in question was not clarified until one year later, when the Hinsons attached a survey at the time of recording. Because the deed lacked an adequate legal description at the time of signing, it must be considered a nullity and did not convey legal title.

The fact that the Hinsons attached a complete description of the eleven acres at the time of recording does not validate the deed. When parties reform a contract, they must demonstrate that it is the intent of each party to incorporate the changes. See Harrod v. Simmons, 143 So.2d 717, 719 (Fla. 2d DCA 1962); see also Baldwin v. Christopher, 75 Fla. 605, 79 So. 339, 342 (1918). There is no evidence in the instant case that the tenants in common each agreed to convey this particular eleven acres to the Hinsons. It does not appear that anyone resigned the deed after the survey was attached. Without evidence of such mutual agreement, the fact that the survey was later attached to the deed does not correct its omission.

Nor does section 95.231(2), Florida Statutes (2010), cure the deed’s defects. The trial court relied on this provision during the proceedings below to address any concerns with the validity of the Hin-sons’ title. The provision states:

After 20 years from the recording of a deed or the probate of a will purporting to convey real property, no person shall assert any claim to the property against the claimants under the deed or will or their successors in title.

The trial court found that because the September 1989 deed was recorded in August 1990, and over twenty years had passed since its recording date, Davis was prohibited from contesting its validity. The trial court misjudged this provision’s intended effect.

Section 95.231(2) is a curative provision. However, its curative effect extends only to correct technical defects in an otherwise valid deed executed by the person(s) owning the property in question. See Holland v. Hattaway, 438 So.2d 456, 461-62 (Fla. 5th DCA 1983); Whaley v. Wotring, 225 So.2d 177, 181 (Fla. 1st DCA 1969); Foremost Props., Inc. v. Gladman, 100 So.2d 669, 672 (Fla. 1st DCA 1958). It cannot validate conveyances made by persons who have no possessory interest in the property. See Holland, 438 So.2d at 461-62. In other words, it cannot be used to create a title where none existed before. Id.

Here, it seems that section 95.231(2) could cure the deed’s failure to adequately describe the specific eleven acres being conveyed. This was a mere “technical” defect. But the provision cannot cure the deed’s failure to include Rashunn Lewis’ signature on the list of grantors. This was not a “technical” defect, but a failure in the chain of title. To find otherwise would mean section 95.231(2) could validate titles in every case where property is conveyed without the full cooperation and agreement of the actual owner. The provision was not meant to apply in such situations, and therefore is inapplicable in this case.

Conclusion

Given the foregoing, the Hinsons have not demonstrated standing to bring the underlying causes of action on the basis of legal title to the land. The trial court’s finding that they obtained legal title through the September 1989 deed was incorrect, and it should have dismissed the case instead of granting the Hinsons their requested relief. We therefore REVERSE and REMAND for proceedings in accord with this opinion.

THOMAS and ROBERTS, JJ., concur.

      . On appeal and for the first time, the Hin-sons raise a claim for adverse possession under "color of title.” We have reviewed this claim and find it unpersuasive. Because it was not properly preserved, it will not be discussed here.

      . Apparently Lewis did not sign the deed as he was too young. No legal representatives were found to sign it in his place.


source: Caselaw Access Project

author: CLARK, J.

license: Public Domain

text:
    ROBERTSON GROUP, P.A., Appellant/Cross-Appellee, v. Peter A. ROBERTSON, an individual, Donald A. Niesen, an individual, Jeffrey L. Price, an individual, and David L. Worthy, an individual, Appellees/Cross-Appellants.
    No. 1D10-4907.
    District Court of Appeal of Florida, First District.
    July 18, 2011.

      Leonard E. Ireland, Jr. of Clayton-Johnson, P.A., Gainesville, for Appellant/Cross-Appellee.
    Peter A. Robertson of The Robertson Firm, P.A., St. Augustine, for Appel-lee/Cross-Appellant Robertson; Donald A. Niesen, Jeffrey Price, and David L. Worthy of Niesen, Price, Worthy, Campo, Fra-sier & Blakey, P.A., Gainesville, for Appel-lees/Cross-Appellants Niesen, Price and Worthy.
   CLARK, J.

Robertson Group, a law firm organized as a Florida Professional Limited Liability Company, appeals the non-final order determining the parties’ rights to arbitration under the arbitration clause contained in the Company’s operating agreement. We have jurisdiction. See § 608.423, Fla. Stat.; Fla. R.App. P. 9.130(a)(3)(C)(iv). For the following reasons, the trial court’s order is affirmed in part and reversed in part.

This appeal stems from a case filed in the context of the dissolution of a Florida Limited Liability Company, pursuant to chapter 608, Florida Statutes. In the process of settling the accounts of the Company and distribution of its assets, one of the lawyers, Mr. Niesen, notified the other lawyers of his demand for arbitration. Messrs. Price and Worthy also demanded arbitration. Shortly thereafter, the other member of the firm, Mr. Robertson, filed the instant suit against the Company and the other lawyers, seeking a judicial ruling on the existence and amount of a debt he claims is owed to him by the Company and asking that the arbitration be stayed pending the outcome of the litigation. He asserted that his claim is not governed by the arbitration agreement.

The interlocutory order on appeal disposed of several motions filed by the various parties, pertaining to arbitration of the issues as governed by the L.L.C.’s member agreement. The trial court stayed the arbitration and ordered that “issues relating to a debt owed by the law firm to Peter A. Robertson” be litigated, because the arbitration clause did not “cover matters between the law firm and a creditor of the law firm” and that the arbitration clause “specifically excludes from arbitration any disputes between the members of the law firm regarding their compensation.”

Mr. Robertson is bound by the member agreement he signed, his status as a creditor notwithstanding. Section 11.05 of the member agreement specifically recognized that Members might have made loans to the Company and that Members who had made such loans to the Company would have priority in the distribution of assets. See also, § 608.444, Fla. Stat. (“[i]n settling accounts after the dissolution of a limited liability company, the assets of the limited liability company must be distributed in the following order: (1) To creditors, including members who are creditors ... ”).

In addition, Mr. Robertson’s claim of a debt owed to him by the Company is not a controversy “as to the compensation of Members,” under the exclusion in the arbitration provision of the member agreement. Article XII provides: “Except with respect to controversies as to the compensation of Members, which are to be determined solely in accordance with the terms of this Agreement, any controversy arising out of or relating to this Agreement or to the enforcement of this Agreement shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association then in effect.” The term “compensation” is not defined in the agreement.

Where contractual language is unambiguous, the language must be given its ordinary meaning. Turner Const. Co. v. Central Florida Equipment, 904 So.2d 474 (Fla. 3d DCA 2005). “Compensation” is generally understood to mean “remuneration and other benefits received in return for services rendered.” Black’s Law Dictionary 301 (8th ed. 2004). In contrast, repayment of a loan is not ordinarily understood to mean remuneration in return for services rendered, but is the return of funds provided by the lender for the borrower’s temporary use, plus any agreed-upon interest. See Black’s Law Dictionary 954 (8th ed. 2004) (“Loan, n_2. a thing lent for the borrower’s temporary use; esp. a sum of money lent at interest.”).

Contracts with arbitration clauses create a presumption of arbitrability. Beaver Coaches, Inc. v. Revels Nationwide R.V. Sales, Inc., 543 So.2d 359 (Fla. 1st DCA 1989). The broad arbitration clause in this case is to be liberally construed in favor of arbitration. Any doubt in the scope of an arbitration agreement should be resolved in favor of arbitration. Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131 (Fla. 3d DCA 2006). The three elements for courts to consider in ruling on a motion to compel arbitration are: 1) whether a valid written agreement to arbitrate exists; 2) whether an arbitrable issue exists; and 3) whether the right to arbitrate was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The only element at issue here is (2), whether an arbitrable issue exists, i.e. — whether the dispute about the verbal loan to the firm in the pending lawsuit is arbitrable. The “broad” arbitration clause in this case, providing “[a]ny controversy arising out of or relating to this Agreement or to the enforcement of this Agreement” shall be arbitrated, clearly covers the dispute in the trial court action.

In light of the particular language contained in the contract entered into by the lawyers in this case, the portion of the trial court’s order staying arbitration and denying a stay of litigation of Mr. Robertson’s claim of a debt owed him by the Company on the basis that such claim is excluded from the arbitration provision in the member agreement is REVERSED. In all other respects, and after review of the cross-appeal of Niesen, Price, and Worthy, the trial court’s order is AFFIRMED. This case is remanded for further proceedings, pending arbitration of matters as required by the member agreement.

ROBERTS and WETHERELL, JJ„ concur.


author: WETHERELL, J.

text:
    RING POWER CORPORATION, a Florida Corporation, Appellant, v. Melvin ROSIER, Appellee.
    No. 1D10-5083.
    District Court of Appeal of Florida, First District.
    July 18, 2011.

      Thomas R. Ray, of Holbrook, Akel, Cold, Stiefel & Ray, P.A., Jacksonville, and Jerome Hoffman, of Holland & Knight, Tallahassee, for Appellant.
    William D. Hall, Tallahassee, for Appel-lee.
   ON MOTION FOR REHEARING

WETHERELL, J.

We deny Appellee’s motions for rehearing and rehearing en banc. On our own motion, we withdraw the opinion issued on June 8, 2011, and substitute this opinion in its place.

Ring Power Corporation (Ring Power) seeks review of an order granting a new trial in this negligence action. In the order, the trial court found that a new trial was warranted because the verdict in favor of Ring Power was contrary to the manifest weight of the evidence and because of improper closing argument by defense counsel. Ring Power contends that the trial court abused its discretion in granting a new trial. We agree and reverse.

Appellee, Melvin Rosier, sued Ring Power and others for negligence based upon the failure of the parking brake on a Caterpillar backhoe loader at the Wakulla County landfill. When the brake failed, the loader rolled forward and pinned Rosier against a brick wall. Rosier eventually had both legs amputated as a result of the accident. Rosier settled with Caterpillar and voluntarily dismissed Wakulla County, and the case proceeded to trial only against Ring Power. Rosier claimed that Ring Power had a duty to reasonably inspect and maintain the loader and its brake system pursuant to the Customer Service Agreement (CSA) between Ring Power and Wakulla County and that the accident was caused by Ring Power’s breach of this duty.

Following a four-day trial, the jury returned a verdict in favor of Ring Power. Rosier timely moved for a new trial, arguing that the verdict was against the manifest weight of the evidence and that, contrary to a ruling of the trial court, Ring Power improperly argued in closing arguments that it had no liability based on exculpatory language in the CSA. The trial court granted the motion. This appeal follows.

The trial court has discretion to grant a new trial even if it is not clear, obvious, and indisputable that the jury was wrong. See Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999). But the trial court should “refrain from acting as an additional juror” and “should only intervene when the manifest weight of the evidence dictates such action.” Smith v. Brown, 525 So.2d 868, 870 (Fla.1988) (emphasis in original). The trial court’s ruling on á motion for new trial is reviewed for an abuse of discretion, as explained in Estate of Stuckey:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.

749 So.2d at 497-98.

Where, as here, the trial court grants a new trial on the basis that the verdict was contrary to the manifest weight of the evidence, the issue for the appellate court is not whether there was evidence to support the verdict; rather, the issue is whether there is record support for the trial court’s finding that the verdict was contrary to the manifest weight of the evidence. Id.; see also E.R. Squibb & Sons, Inc. v. Farnes, 697 So.2d 825, 827-28 (Fla.1997) (quashing appellate decision reversing order granting new trial because “although there was an evidentia-ry basis for the jury verdict, there also was extensive evidentiary support for the trial court’s ruling”). The trial court is required to articulate its reasons for granting a new trial in the order. See Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978) (“Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.”). The trial court abuses its discretion in granting a new trial where there is no record support for the reasons stated in its order. See, e.g., Schmidt v. Van, 2011 WL 2570774 (Fla. 1st DCA June 30, 2011) (reversing grant of new trial because, even though defense verdict was contrary to uncontradicted testimony of the plaintiffs expert, the jury was free to weigh and reject the expert’s testimony); Jordan v. Brown, 855 So.2d 231, 233-34 (Fla. 1st DCA 2003) (reversing grant of new trial where issue of plaintiffs injury was highly controverted and, thus, the trial court’s finding that there was uncontro-verted evidence that plaintiff was injured was not supported by the record); K-Mart Corp. v. Collins, 707 So.2d 753, 755-56 (Fla. 2d DCA 1998) (reversing grant of new trial where findings in the order did not reveal the conflicting nature of the evidence presented at trial, but rather reflected that the trial judge was impermissi-bly acting as a seventh juror by merely disagreeing with the jury’s determination of what weight to accord the evidence).

Here, the order granting a new trial focused on the “unrebutted” testimony of Rosier’s expert that Ring Power did not competently inspect the loader in accordance with industry standards because the inspector was unable to say how long the brake system would work after the inspection. The record does not support the trial court’s finding that the expert’s testimony on this issue was unrebutted; rather, the record reflects that the issue of whether Ring Power competently inspected the loader was highly controverted at trial.

The Ring Power employee who inspected the loader acknowledged in his testimony that the purpose of the inspection was preventative maintenance to identify potential problems with the loader, but he also testified at length how he thoroughly inspected the loader in accordance with the directions in the loader’s owner’s manual and that he observed no problems with the brakes during the inspection. The inspector testified that his inspection included setting the parking brake and putting the loader in gear to see if the brake would hold, which it did. The expert’s testimony that a competent inspection required Ring Power to essentially warrant the brake system for an additional 250 hours was in conflict with the CSA, which is silent on any such warranty obligations, and it was also in conflict with the inspector’s common-sense testimony based on his 27 years of experience as a field technician that the life of the brake system depended on the use of the loader and other factors. Indeed, the expert acknowledged that a corrosive environment, such as at the landfill, would greatly diminish the life of the brakes. Moreover, other circumstantial evidence was presented to support each party’s position regarding the competency of the inspection, including conflicting testimony as to whether the brake pads were replaced after the accident and conflicting testimony as to whether there were problems with the loader’s brake system after the inspection and before Rosier’s accident. These conflicts in the evidence were for the jury to weigh and resolve in determining whether Ring Power breached its duty under the CSA. Accordingly, the trial court abused its discretion in granting a new trial on the basis that the verdict was contrary to the manifest weight of the evidence.

The trial court also abused its discretion in granting a new trial on the basis of defense counsel’s unobjected-to references to the exculpatory language in the CSA in his closing argument. Because Rosier did not object to the argument or move for a mistrial, a motion for new trial can be granted only if the argument rises to the level of fundamental error. See Companioni v. City of Tampa, 51 So.3d 452, 456 (Fla.2010) (holding that a party must object to instances of attorney misconduct during trial and also move for mistrial if objection is sustained in order to preserve the issue for a motion for new trial); see also Cummins Ala., Inc. v. Allbritten, 548 So.2d 258, 263 (Fla. 1st DCA 1989) (requiring objection and motion for mistrial to preserve issue for new trial motion). An unobjected-to closing argument amounts to fundamental error, requiring a new trial, when the argument 1) is improper; 2) is harmful; 3) is incurable; and 4) “so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1028-30 (Fla.2000).

Applying the Murphy test, we determine that defense counsel’s argument does not rise to the level of fundamental error because the argument was not improper, harmful, incurable, or damaging. The CSA was a joint exhibit introduced by the parties, and Rosier did not request the redaction of any portion of the CSA. Thus, it was not improper for defense counsel to read from the CSA in his closing argument. Moreover, although the trial court had prohibited Ring Power from arguing that the exculpatory language in the CSA precluded a finding of negligence, it is clear from a review of defense counsel’s closing argument that his reference to the exculpatory language was not inconsistent with the court’s ruling. Counsel did not argue that anything in the CSA barred a finding of liability; he simply argued that the CSA did not require Ring Power to “predict the future” as suggested by the testimony of Rosier’s expert. Viewed in this manner, the argument is nothing more than counsel offering an interpretation of the evidence that had been presented to the jury, which is proper closing argument. Accordingly, because Rosier did not meet the Murphy test and establish fundamental error, the trial court abused its discretion in granting a new trial based on the unobjected-to closing argument.

Based upon the foregoing, we reverse the order granting a new trial and remand with directions that the jury’s verdict be reinstated and judgment be entered in favor of Ring Power.

REVERSED and REMANDED with directions.

DAVIS, and LEWIS, JJ., concur.

       Even if the expert’s testimony was unrebutted, that alone would not be an adequate basis to grant a new trial because the jury was free to reject this testimony. See Schmidt, supra; see also Wald v. Grainger, 64 So.3d 1201 (Fla.2011) (explaining that a jury can reject un-contradicted expert testimony if there is conflicting lay testimony or other conflicting evidence).


author: PER CURIAM.

text:
    Phillip E. DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1254.
    District Court of Appeal of Florida, First District.
    July 18, 2011.

      William Mallory Kent of the Law Office of William Mallory Kent, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm, without discussion, the summary denial of ground three. However, because the record does not conclusively refute grounds one and two of Appellant’s motion, we reverse for an evi-dentiary hearing on those claims.

At the trial court, the State acknowledged in its court-ordered response to the motion that an evidentiary hearing is required to address Appellant’s claims. Likewise, in response to the Toler order issued by this court, the State conceded that the case should be remanded to the trial court for an evidentiary hearing on grounds one and two. However, the State also raised an issue concerning the timeliness of Appellant’s motion.

In ground one, Appellant asserts that counsel affirmatively misadvised him that he would always be classified as “medium risk” if he pled guilty. He alleges that instead, he has been classified as “close” custody. He alleges that “serving a sentence under ‘close custody’ conditions is materially harsher than serving a sentence under ‘medium risk’ classification.” He alleges that but for this misadviee, he would have rejected the plea and insisted on going to trial. This claim is facially sufficient and is properly raised in a post-conviction motion. See Colombo v. State, 972 So.2d 1101, 1102 (Fla. 1st DCA 2008) (“[Ajffirmative misadviee of counsel regarding the collateral consequences of entering a plea can constitute ineffective assistance of counsel and provide a basis for withdrawing a plea”).

In ground two, Appellant asserts that counsel was ineffective for failing to challenge an inculpatory statement he allegedly made in response to police questioning while he was in custody, but where he had not been advised of his Miranda rights. He alleges that had he been aware of the possible suppression of his statement, he would not have pled guilty but would have insisted on going to trial. This claim is facially sufficient. See Williams v. State, 717 So.2d 1066 (Fla. 2d DCA 1998) (“A trial attorney’s failure to investigate a factual defense or a defense relying on suppression of the evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction”).

The trial court denied all of Appellant’s claims on the ground that he signed a plea, which stated in part:

I hereby enter my plea of guilty because I am guilty. Before entering such plea of guilty, I was advised of the nature of all the charges against me, the statutory offense included within such charges, the range of maximum allowable punishments for each charge, all the possible defenses to each charge, and all circumstances in mitigation of such charges. I have been advised of all other facts essential to a full and complete understanding of all offenses with which I have been charged, and of all offenses to which I am entering this plea. I have been advised of all direct consequences of the sentence to be imposed.

This boilerplate language in the written plea agreement is insufficient to conclusively refute grounds one and two in Appellant’s motion. Accordingly, we reverse and remand for the trial court to conduct an evidentiary hearing on these claims.

We have not overlooked the State’s argument that Appellant’s motion is untimely because his judgment and sentence is dated October 20, 2005, and his postcon-viction motion was filed more than two years later, on December 11, 2007. However, the sworn allegations in Appellant’s motion reflect that the judgment and sentence was not filed with the clerk of the lower tribunal until October 25, 2005, and thus did not become final until 30 days after that date; that his postconviction motion was originally filed on November 21, 2007; and that the motion filed on December 11, 2007, was simply a “duplicate counterpart copy of the motion with [Appellant’s] signature.” These allegations are not refuted by the record and, thus, we must accept them as true. See Stancle v. State, 917 So.2d 911, 912 (Fla. 4th DCA 2005). Although the docket sheet transmitted with the record indicates that the motion was originally filed on November 26, 2007 (not November 21), and the record includes the judgment and sentence dated October 20, 2005, the docket sheet is not part of the record and the judgment and sentence included in the record does not contain a date-stamp showing when it was filed with the clerk of the lower tribunal. Accordingly, we have no record basis to conclude that the motion is untimely; however, the discrepancies in these dates and their impact on the timeliness of the motion may be considered by the trial court at the evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.

        Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).


text:
    FLORIDA DEPARTMENT OF TRANSPORTATION and York Claims Service, Inc., Appellants, v. Donna K. (Ellison) RIPPY, Appellee.
    No. 1D10-5781.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Michele E. Ready of Walton, Lantaff, Schroeder & Carson, LLP, Miami, for Appellants.
    Bill McCabe, Longwood, and Anthony J. Salzman, Gainesville, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) filed a motion seeking to terminate Claimant’s entitlement to benefits under chapter 440 on grounds Claimant violated section 440.105(4)(b), Florida Statutes (2006), and thus, pursuant to section 440.09(4)(a), Florida Statutes (2006), she was no longer entitled to any benefits. No petition for benefits was pending when the E/C filed its motion. Because we conclude the Judge of Compensation Claims (JCC) lacked jurisdiction to address the E/C’s Motion to Terminate Benefits, we quash the order on appeal and remand with directions that the motion be dismissed for lack of jurisdiction. See Polk County v. Sofka, 702 So.2d 1243, 1245 (Fla.1997) (holding ‘“the parties cannot stipulate to jurisdiction over the subject matter where none exists,’ and ‘[cjourts are bound to take notice of the limits of their authority and if want of jurisdiction appears at any state of the proceedings, original or appellate, the court should notice the defect and enter an appropriate order’ ” (citations omitted)).

In Polston v. Hurricane Island Outward Bound, 920 So.2d 766 (Fla. 1st DCA 2006), this court reversed the JCC’s finding she had jurisdiction to entertain the E/C’s petition for benefits which requested “a determination pursuant to Fla. Stat. 440.09(4) whether the Employee/Claimant had knowingly made false, fraudulent or misleading oral or written statements for the purposes of securing workers’ compensation benefits in violation of Fla. Stat. 440.105(4)(b).” Id. at 766-67. The determination that the JCC lacked jurisdiction was based on “the absence of a pending petition for benefits filed by Polston.” Id. at 767. The rules of procedure define a petition for benefits as “a pleading invoking the jurisdiction of the OJCC and subject to the requirements of Sections 440.192(1) through (4), Florida Statutes.” Fla. Admin. Code R. 60Q-6.102(1). Section 440.192 establishes the requirements for the filing of a petition for benefits, specifically restricting the filing to “any employee.”

A JCC has no powers beyond those conferred by the statute. See Pace v. Miami-Dade County Sch. Bd., 868 So.2d 1286, 1287 (Fla. 1st DCA 2004). Because chapter 440 authorizes only employees to file pleadings invoking the jurisdiction of the JCC, whether the E/C here termed its pleading a motion or a petition for benefits, the relief sought was the same as it was in Polston — a determination that Claimant violated section 440.105(4). Accordingly, the JCC had no jurisdiction to address the E/C’s motion absent a pending petition for benefits. We QUASH the order of the JCC and REMAND with directions that the JCC dismiss the motion for lack of jurisdiction.

WOLF, PADOYANO, and ROWE, JJ„ concur.


author: ROWE, J.

text:
    Myron J. NEWBERRY, husband, Appellant, v. Tammy NEWBERRY, wife, Appellee.
    No. 1D10-4873.
    District Court of Appeal of Florida, First District.
    July 18, 2011.

      Marilyn K. Morris, Tallahassee, for Appellant.
    John W. Black, Tallahassee, for Appel-lee.
   ROWE, J.

The appellant, Myron Newberry, appeals from the final judgment of dissolution, and the appellee, Tammy Newberry, raises three issues on cross-appeal. We affirm without discussion all four issues raised on direct appeal and issue I on cross-appeal. However, we reverse issues II and III raised on cross-appeal and remand with instructions.

In issue II on cross-appeal, Ms. Newber-ry, the former wife, argues that the monthly child care expenses should have been included in the trial court’s child support award to the former wife pursuant to section 61.30, Florida Statutes. The former husband properly concedes that the trial court’s child support award erroneously failed to include child care costs. Under section 61.30(7), Florida Statutes, “[cjhild care costs incurred due to employment ... of either parent shall be added to the basic obligation.” Thus, the trial court should have included child care expenses in the former husband’s basic child support obligation. See Mannix v. Mannix, 763 So.2d 1135, 1136 (Fla. 4th DCA 1999) (holding section 61.30(7) requires day care costs to be added to the child support obligation where day care is necessary due to employment). Accordingly, we remand to the trial court with instructions to include child care expenses in the former husband’s monthly child support obligation.

In issue III on cross-appeal, the former wife argues that the trial court erred in entering the final judgment which made a lump-sum alimony award of the marital home to the wife, but failed to convey marketable title of the property to her. When the trial court finds that a party is entitled to a conveyance of real estate as lump-sum alimony, the decree should require the conveyance and should declare that it is a lump-sum alimony award. See Bezanilla v. Bezanilla, 65 So.2d 754, 755 (Fla.1953). However, a final judgment will operate as an automatic transfer of interests in property only when the language of the final judgment expressly transfers a property interest from one spouse to the other or declares that one spouse has sole interest. See id.; Hadden III v. Cirelli, 675 So.2d 1003, 1005 (Fla. 5th DCA 1996). While the final judgment here properly awards the marital home as lump-sum alimony, Simpson v. Simpson, 678 So.2d 882 (Fla. 3d DCA 1996), the final judgment does not include specific language of conveyance of title to the former wife. We therefore remand for the trial court to include language in the final judgment specifically requiring conveyance of the marital home to the former wife. See Bezanilla, 65 So.2d at 755; 5A Fla. Pl. & Pr. Forms § 44:802.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

VAN NORTWICK and WETHERELL, JJ., concur.


author: EVANDER, J.

text:
    Takerry Oneal DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2096.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Takerry Davis timely appeals his judgment and sentences for possession of drug paraphernalia, possession of twenty-grams or less of cannabis, and possession of a concealed weapon by a felon.

These items of contraband were discovered by a law enforcement officer while performing a “protective patdown” of Davis and were the subject of Davis’ dis-positive pre-trial motion to suppress evidence.

The State’s evidence established that on November 24, 2009, at approximately 2:46 p.m., Officer McConnell observed several individuals in the courtyard of a “complex” located in a “high-crime area.” McConnell stopped his patrol car, got out, and began to walk toward the individuals. As he neared the group, Davis began to walk away. McConnell caught up to Davis and asked if he could briefly talk to him. Davis stopped and started talking to the officer.

During the conversation, Officer McConnell observed a pocketknife clipped into one of Davis’ pants pockets. McConnell “secured” the pocketknife and “considered it necessary to patdown for weapons just to ... for my own safety....” Officer McConnell felt along the outside of a nylon bag being carried by Davis. The officer felt what he immediately recognized as a set of brass knuckles in the bag. The cannabis and drug paraphernalia were subsequently found on Davis’ person.

When questioned by defense counsel, Officer McConnell acknowledged that the patdown was done without Davis’ consent and that there was nothing unlawful about the pocketknife.

The Florida Supreme Court has explained that there are three levels of police-citizen encounters. The first level is typically referred to as a consensual encounter and involves only minimal police contact. During a consensual encounter, a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Popple v. State, 626 So.2d 185, 186 (Fla.1993). The second level of police-citizen encounter involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A police officer may temporarily detain a citizen if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Id.; see also § 901.151, Fla. Stat. (2009). The officer’s suspicion must be a well-founded, articulable one. Popple, 626 So.2d at 186. Mere suspicion will not suffice. Id. The third level of police-citizen encounter is an arrest — which must be supported by probable cause that a crime has been or is being committed. Id.

Here, the contact between Officer McConnell and Davis began as a consensual encounter, but was transformed into an investigatory stop when the officer secured Davis’ pocket knife and commenced his “protective patdown.” Accordingly, to justify this investigatory stop, the State was required to show that Officer McConnell had a reasonable suspicion that Davis had committed, was committing, or was about to commit a crime. Popple; see also Kramer v. State, 15 So.3d 790 (Fla. 5th DCA 2009).

The State contends that because McConnell had already found Davis to be in possession of one weapon, the pocketknife, it was reasonable for him to suspect Davis might have additional weapons. We reject the State’s argument. Possession of a pocketknife, without more, does not create a reasonable suspicion that a citizen is involved in criminal activity. In the instant case, there was no evidence that Davis had made any furtive movements, or engaged in any conduct that was threatening in nature. The pocketknife was apparently openly visible and its possession was entirely lawful. To accept the State’s argument would mean that an officer could “stop and frisk” any individual observed in possession of a pocketknife even where there was no evidence suggesting that criminal activity was afoot.

On remand, the trial court is directed to vacate the judgment and sentence and grant the motion to suppress.

REVERSED and REMANDED.

ORFINGER, CJ., and PALMER, J., concur.

      . § 893.147(1), Fla. Stat. (2009).

      . § 893.13(6)(b), Fla. Stat. (2009).

      . 790.23, Fla. Stat. (2009).

      . After the denial of his motion, Davis pled nolo contendere to the charges, specifically reserving his right to appeal the denial of the motion.


text:
    CITRUS COUNTY SCHOOL BOARD, Florida, School Board Insurance Trust, Appellant, v. STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES, Division of Workers’ Compensation, Appellee.
    No. 1D10-5693.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    Rehearing Denied Aug. 30, 2011.

      Claude M. Harden, III, and Harold R. Mardenborough, Jr., Carr Allison, Tallahassee, for Appellant.
    Samuel Dean Bunton, Tallahassee, for Appellee.
   WETHERELL, J.

The Citrus County School Board seeks review of a final order of the Department of Financial Services (DFS) imposing a $13,250 penalty on the School Board under section 440.20(8)(b), Florida Statutes. The School Board argues that DFS erred in construing the phrase “late payments” in the statute to include payments made within seven days after they were due. Because DFS did not err in construing the statute, we affirm the final order.

DFS conducted an audit of the School Board’s workers’ compensation claims for the period of September 26, 2004, to September 25, 2009. The auditor reviewed 498 temporary indemnity payments and found that 169 of the payments were made after their due date. Only four of the payments were made more than seven days after they were due. DFS concluded that all 169 payments made after their due date were “late payments” for purposes of section 440.20(8)(b) and it calculated the penalty based on this conclusion. The School Board filed a petition for administrative hearing, arguing that the penalty should have be calculated based only on the four payments made more than seven days after their due date because that is what section 440.20(6)(a) refers to as “late payments.” DFS rejected this argument after an informal hearing.

The sole issue on appeal is whether, for purposes of section 440.20(8)(b), the phrase “late payments” should be interpreted to mean payments made after the date they were due, as DFS contends, or payments made more than seven days after they were due, as urged by the School Board. Our review of this issue of statutory interpretation is de novo. See Murray v. Mariner Health, 994 So.2d 1051, 1056 (Fla.2008).

“When the language of the statute is clear and unambiguous and conveys a clear and definite meaning ... the statute must be given its plain and obvious meaning.” Fla. Dep’t of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 960 (Fla.2005) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). In construing a statute, we presume that the Legislature knows the meaning of the words it uses and that it intends to employ those meanings in the statute. Overstreet v. State, 629 So.2d 125, 126 (Fla.1993); see also State v. Bryant, 953 So.2d 585, 587 (Fla. 1st DCA 2007) (“Common understanding and reason must be used when analyzing a statute, and words of common usage not specifically defined must be given their plain and ordinary meaning.”).

Section 440.20(8)(b) provides in pertinent part:

In order to ensure carrier compliance under this chapter, the office shall monitor, audit, and investigate the performance of carriers. The office shall require that all compensation benefits are timely paid in accordance with this section. The office shall impose penalties for late payments of compensation that are below a minimum 95 percent timely payment performance standard. The carrier shall pay to the Workers’ Compensation Administration Trust Fund a penalty of:
1. Fifty dollars per number of installments of compensation below the 95 percent timely payment performance standard and equal to or greater than a 90 percent timely payment performance standard. .
2. One hundred dollars per number of installments of compensation below a 90 percent timely payment performance standard.
This section does not affect the imposition of any penalties or interest due to the claimant.

§ 440.20(8)(b), Fla. Stat. (emphasis added).

The language in section 440.20(8)(b) is clear and unambiguous. The second sentence of the statute requires benefits to be “timely paid.” The third sentence provides for the imposition of penalties for “late payments.” Reading these two sentences together leads to the inescapable conclusion that a payment that is not timely paid when it is due is a late payment. This interpretation is consistent with the common meaning of the term “late,” which is defined as “tardy; coming after an appointed or expected time.” Black’s Law Dictionary 898 (8th ed. 2004). This interpretation is also consistent with and furthers the purpose of the Workers’ Compensation Law, which is to provide an “efficient self-executing system” that “ensure[s] the prompt delivery of benefits to the injured worker.” § 440.015, Fla. Stat.

The School Board argues that section 440.20(8)(b) should be construed in pari materia with section 440.20(6)(a) because both statutes include the phrase “late payments.” We reject this argument because, although both statutes deal with penalties, they serve different purposes. The penalty imposed by section 440.20(8)(b) is paid into the Workers’ Compensation Trust Fund and serves a regulatory compliance purpose — “to ensure carrier compliance under this chapter” — whereas the penalty imposed by section 440.20(6)(a) is paid to the injured employee as additional compensation. Accordingly, the fact that the Legislature has chosen to provide- a seven-day grace period before penalties must be paid to an injured employee under section 440.20(6)(a) has no bearing on the proper interpretation of section 440.20(8)(b).

For these reasons, we affirm the final order.

AFFIRMED.

MARSTILLER, J., and DODSON, CHARLES W., Associate Judge, concur.


author: VAN NORTWICK, J.

text:
    Moshe MAZINE and Jaacov E. Bouskila, Appellants, v. M & I BANK, Appellee.
    No. 1D10-2127.
    District Court of Appeal of Florida, First District.
    July 22, 2011.

      David H. Charlip of Charlip Law Group, LC, Aventura, for Appellants.
    Erin Berger, Florida Default Law Group, PL, Tampa, for Appellee.
   VAN NORTWICK, J.

Moshe Mazine and Jaacov Bouskila appeal an amended final judgment of mortgage foreclosure in favor of M & I Bank, appellee. Because the documentary evidence necessary to establish the amount owed under the note and mortgage was admitted without proper foundation and it is undisputed that M & I Bank was not the holder of the mortgage and note, we reverse and remand for further proceedings.

The party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure action. Servedio v. U.S. Bank Nat. Ass’n, 46 So.3d 1105 (Fla. 4th DCA 2010). Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder. See § 673.3011, Fla. Stat. (2009); Taylor v. Deutsche Bank Nat. Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010). An allegation of default in a complaint must be proven by competent evidence. See Terra Firma Holdings v. Fairwinds Credit Union, 15 So.3d 885 (Fla. 2d DCA 2009).

In January 2009, M & I Bank filed a complaint seeking foreclosure of a mortgage naming Mazine and Bouskila as party defendants. An amended complaint later followed, but the named plaintiff remained the same. After several motions challenging the sufficiency of service of process and personal jurisdiction, Bouskila eventually filed an answer which denied almost all of allegations of the amended complaint, including the allegation that Bouski-la secured a mortgage on the real property at issue and the allegation as to amount in default. Mazine did not file an answer but moved to dismiss the amended complaint on several grounds, including the ground that the entity listed on the note and mortgage was “M & I Marshall & Ilsley Bank,” not the named plaintiff, “M & I Bank.” The motion to dismiss was not considered by the trial court before the cause was heard at a bench trial.

The only witness to testify at the bench trial regarding the allegations of the amended complaint was David Taxdal, the regional security officer for “M & I Marshall and Ilsley Bank” in the State of Florida. According to Taxdal’s testimony, his “duties and responsibilities are fraud investigation, internal investigation and physical security for the branches” in Florida, and he does not originate loans, service loans or collect loans in default. Through Taxdal, the bank attempted to introduce several documents, including an affidavit as to amounts due and owing. The affidavit was executed by Michael Koontz, who did not appear at trial, and the bank sought to introduce it as a business record. Taxdal testified that he had no knowledge as to who prepared the documents submitted at trial by the bank as he is not involved in the preparation of documents such as the ones proffered by the bank, that he does not keep records as a records custodian, that he has no personal knowledge as to how the information in the affidavit as to the amounts due and owing was determined or whether it was prepared in the normal course of business, and that he did not know whether such information was accurate.

Counsel for the defendants vigorously opposed admission of the affidavit of indebtedness, the only evidence of the amount allegedly in delinquency, as a business record. Counsel observed that the affiant (Koontz) was not subject to cross-examination, and that given the matters to which Taxdal testified it was evident that Taxdal “has no knowledge of the basis upon which this affidavit was prepared.”

The trial court denied defendants’ objection and admitted the affidavit without explanation. This was error. Before a document may be admitted as a business record, a foundation for such admission must be laid. Section 90.803(6), Florida Statutes (2010), allows the admission of records of a regularly kept business activity when the business record was made at or near the time of the matters reported and when the business record is made by a person having personal knowledge of the matters reported or when the information supplied in the record is supplied by a person with knowledge. Further, it must be shown that the business record was kept in the ordinary course of a regularly conducted business activity and that it is the regular practice of the business keeping the record to make such a business record. Yisrael v. State, 993 So.2d 952 (Fla.2008). While it is not necessary to call the individual who prepared the document, the witness through whom a document is being offered must be able to show each of the requirements for establishing a proper foundation. Forester v. Norman Roger Jewell & Brooks, 610 So.2d 1369, 1373 (Fla. 1st DCA 1992).

Here, none of the requirements for admission of a business record were met. As noted, Taxdal candidly admitted that he had no knowledge as to the preparation or maintenance of the documents offered by the bank, including the affidavit as to amounts due and owing. Taxdal did not testify and, indeed, could not testify, that the affidavit as to the amounts owed was actually kept in the regular course of business. Further, he did not know if the source of the information contained in the affidavit was correct. He did not know if the amounts reported in the affidavit were accurate. There was no attempt to admit the affidavit by certification or declaration pursuant to section 90.803(6)(c), Florida Statutes.

Accordingly, because no foundation was laid, the admission of the affidavit was erroneous. Because the affidavit was the only evidence as to the amount of defendants’ default, the error was harmful necessitating that the amended final judgment of foreclosure be reversed.

Furthermore, the trial court erred in denying appellants’ motion for a directed verdict given the lack of proof that the named plaintiff and appellee, M & I Bank, holds the mortgage and note. “M & I Marshall & Ilsley Bank” is shown as the holder of both the note and mortgage. At the time the bank offered the affidavit as to amounts due and owing into evidence, Taxdal testified that M & I Bank FSB— which we assume is M & I Bank — and M & I Marshall and Ilsley Bank are different entities. The amended judgment of foreclosure styles the prevailing party as “M & I Bank,” not “M & I Marshall and Ilsley Bank.” To have standing to foreclose, it must be demonstrated that the plaintiff holds the note and mortgage in question. See Khan v. Bank of America, N.A., 58 So.3d 927 (Fla. 5th DCA 2011), and Philogene v. ABN Amro Mtg. Group, Inc., 948 So.2d 45 (Fla. 4th DCA 2006). Therefore, because M & I Bank had not demonstrated it possessed the standing to proceed in the foreclosure action, we must reverse on this issue as well.

REVERSED and REMANDED for further proceedings consistent with this opinion.

LEWIS, and ROBERTS, JJ., concur.

      . Although M & I Bank filed a motion to substitute a party by which M & I Marshall and Ilsley Bank was to be substituted for M & I Bank, the-trial court never acted upon this motion. We note that, while the name of the bank in the mortgage and note is spelled "M & I Marshall and Ilsley ”, the motion to substitute spells the name somewhat differently, "M & I Marshall and Ilsley " (italics added).


text:
    Richard M. MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4832.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Sept. 14, 2011.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See McMullen v. State, 714 So.2d 368, 372 (Fla.1998) (recognizing “the admissibility of expert testimony regarding the reliability of eyewitness testimony is left to the sound discretion of the trial judge”); Johnson v. State, 438 So.2d 774, 777 (Fla.1983) (finding no abuse of discretion in refusal to permit psychology professor to testify concerning common problems with eyewitness identification; “a jury is fully capable of assessing a witness’ ability to perceive and remember, given the assistance of cross-examination and cautionary instructions, without the aid of expert testimony”).

STEVENSON, GROSS, JJ., and STREITFELD, JEFFREY E., Associate Judge, concur.


author: THOMAS, J.

text:
    James Cleveland WESS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1724.
    District Court of Appeal of Florida, First District.
    July 28, 2011.
    Rehearing Denied Aug. 30, 2011.

      Nancy A. Daniels, Public Defender, Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jay Kubica and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, for Appel-lee.
   THOMAS, J.

Appellant appeals his conviction of robbery by sudden snatching pursuant to section 812.131, Florida Statutes. Appellant contends the trial court erred when it denied his motion for judgment of acquittal because the undisputed facts do not satisfy the statutory elements of that crime. For the reasons explained below, we agree and reverse with instructions to the trial court to enter a judgment of theft, as authorized by section 924.34, Florida Statutes.

Factual Background

The relevant facts are undisputed. The victim was sitting on a bench at a bus stop; her purse was on the bench, touching her right hip. Appellant asked the victim a question about the bus schedule; she responded, then resumed looking straight ahead at the road. The victim then felt her purse “moving,” and when she turned around, she saw Appellant running away with it.

Appellant was charged with robbery by sudden snatching. At the close of the State’s case, Appellant moved for judgment of acquittal, arguing that the victim’s testimony did not establish that the purse was in her physical possession, as required by section 812.131, Florida Statutes; rather, the most that the facts established was that Appellant had committed the crime of theft. Appellant’s motion was denied. The jury found Appellant guilty as charged, and the trial court adjudicated Appellant guilty accordingly. This appeal followed.

Analysis

Section 812.131, Florida Statutes (2010), provides, in relevant part:

(1) “Robbery by sudden snatching” means the taking of money or other property from the victim’s person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when, in the course of the taking, the victim was or became aware of the taking.

(Emphasis added.) The issue here is whether, under these facts, Appellant took the purse “from the victim’s person,” as required by the statute. We conclude that he did not.

Although Appellant was not charged with robbery, comparing the statutory definition of “robbery” with that of “robbery by sudden snatching” is helpful. Section 812.131(1), Florida Statutes, defines robbery as “the taking of money or other property which may be the subject of larceny from the person or custody of another -” (Emphasis added.) Thus, the robbery statute applies when property is stolen from a victim’s immediate vicinity and/or control. By contrast, the robbery by sudden snatching statute is more limited, and applies to property taken from a victim’s person, but not when taken from the victim’s reach, proximity, or control. See Brown v. State, 848 So.2d 361, 364 (Fla. 4th DCA 2003) (noting that the text of the robbery by sudden snatching statute “pointedly omits any reference to the person’s ‘custody,’ a term that would have indicated that a snatching might occur from nearby the person.”).

In Brown, the victim was sitting on a park bench and “placed her purse on the bench near her but apart from her person.” Id. at 362. The Fourth District rejected the State’s argument that the statute “requires only that the item be within the victim’s reach and control.” Id. at 363. The court explained that “the clear import of the statute’s words is to require that the property be abruptly and unexpectedly plucked from the embrace of the person, not from that person’s figurative biosphere.” Id. at 364. The court added that the statute “addresses the horror of a victim who is conscious of the startling seizure of something from her hand or person.” Id. Because the purse in Brown “was not on the victim’s person,” the court reversed the appellant’s conviction of robbery by sudden snatching. Id.

In State v. Floyd, 872 So.2d 445 (Fla. 2d DCA 2004), the victim testified that she was sitting in her car with an acquaintance, talking and smoking a cigarette. Id. at 446. As the acquaintance “left the car, he grabbed the victim’s purse, which she said was sitting on the car seat between the outside of her right leg and the center console of the vehicle.” Id. The appellee moved for judgment of acquittal and asked the court to reduce the charge from robbery by sudden snatching to theft because the purse was removed from the car seat, not the victim’s person. Id. The trial court denied the motion, finding that “the victim had constructive possession of the purse because she had possession of [the thief].” Id. The Second District reversed, explaining that “the victim’s purse was not ‘plucked from [her] embrace’ because [the appellee] grabbed it from the seat of the car.” Id. (quoting Brown, 848 So.2d at 364). The court further held, “The fact that the victim grabbed [the appellee] after he grabbed her purse does not convert his taking of her purse from the seat of her car into the taking of her purse from her person.” Id.

Although it is not entirely clear whether the victim’s purse in Floyd was touching her leg when it was grabbed from the car seat, given the court’s reliance on Brown and its emphasis on the fact that the purse was not taken from the victim’s embrace, it does not appear that the court’s decision would have been any different had the purse been touching the victim’s leg. Rather, the court focused on the fact that the purse was removed from the car seat, i.e., from the victim’s reach, and this “did not convert [the appellee’s] taking of her purse ... into the taking of her purse from her person.” Id.

In Nichols v. State, 927 So.2d 90 (Fla. 1st DCA 2006), this court reversed a conviction for robbery by sudden snatching because the defendant snatched the victim’s purse from the shopping cart she was pushing, and noted that “[njothing indicate[d] that the purse was either being held by the victim or was otherwise on her person.” Id. This court also explained that it could not “distinguish the present situation in any meaningful way from that in ... Floyd.” Id. at 91. This court focused on the language in Brown and Floyd concerning the fact that the purse in those cases was not “‘plucked from the embrace’ ” of the victim:

the Floyd court and the Brown court determined that “ ‘the clear import of the statute’s words is to require that the property be abruptly and unexpectedly plucked from the embrace of the person.’ ”

Id. (quoting Floyd, 872 So.2d at 446 and Brown, 848 So.2d at 364).

The Nichols court also rejected the State’s argument that it should not follow Brown because the victim in Nichols “actually had control of the shopping cart” in which her purse was located when it was taken. Id. The court explained that the States argument did “not take into account the facts in Floyd, where the purse was directly on the victims car seat, between the victims leg and the center console.” Id.

Based on the foregoing, it is clear that robbery by sudden snatching does not include taking a victim’s property when it is simply close to the victim or within the victim’s reach or control. Although this is a close question, we are constrained by the Legislature’s clear mandate: “The provisions of [the criminal] code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat.

Here, the victim’s purse was located next to and touching her leg as she sat on a bus stop bench — that is, next to her person, not on her person; thus, although the purse was in her proximity or custody, it was neither in her grasp nor on her person. The State focuses on the observation that in Nichols the purse was not in the victim’s grasp “or otherwise on her person,” whereas, here, the purse was touching the victim and created “contact [that] was of such a personal nature that [she] felt the purse move when Appellant snatched it.” Id. (quoting Nichols, 927 So.2d at 90) (emphasis added). Thus, the State argues, “When Appellant snatched the purse, he was snatching it away from contact with her body; in other words, away from the victim’s person.” (Emphasis added.)

First, the State’s argument essentially urges this court to improperly add the word “away” to the statutory phrase “from the victim’s person,” which we decline to do. Furthermore, we think the State reads the phrase “or otherwise on her person” too broadly. The focus in both Brown and Floyd, upon which Nichols relied heavily, as well as in the Nichols opinion itself, was the fact that the victim was not in actual physical possession of the property when it was taken, but was only in very close proximity to it. In this context, the phrase “or otherwise on her person” requires that the property be actually “on” the victim’s person, not simply next to her, even though it may be in “contact” with the victim. Thus, Appellant was not guilty of robbery by sudden snatching, but of theft, which occurs if a person “knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently ... [d]eprive the other person of a right to the property or a benefit from the property ... [or][a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property.” § 812.014(1)(a), (b), Fla. Stat.

Section 924.34, Florida Statutes, authorizes appellate courts to “reverse [a] judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.” Here, the victim’s uncontroverted testimony was that her purse contained $400 in cash when it was taken. Indeed, the trial court entered a restitution order in that amount. This would support a conviction of third-degree felony grand theft under section 812.014(2)(c)l. Pursuant to section 924.34, Florida Statutes, we would be authorized to direct the trial court to enter a judgment for the lesser included offense of third-degree felony theft, even though the penalty for that offense is the same as that for robbery by sudden snatching. See Sanders v. State, 944 So.2d 203, 207 (Fla.2006) (holding a lesser included offense need not be lesser in both degree and in penalty). However, the jury was not given the option of finding Appellant guilty of felony theft as a lesser included offense. Consequently, pursuant to section 812.014(1), we direct the trial court to enter a judgment against Appellant for misdemeanor theft, the lesser included offense for which the jury was instructed it could find Appellant guilty.

Conclusion

For the reasons explained above, we reverse the judgment as to robbery by sudden snatching and direct the trial court to enter a judgment for theft pursuant to section 812.014(1), and resentence Appellant accordingly.

REVERSED and REMANDED with instructions.

PADOVANO and LEWIS, JJ., concur.


author: BLACK, Judge.

text:
    BMR FUNDING, LLC, a Delaware limited liability company, as assignee of SPCP GROUP, LLC, Appellant, v. DDR CORPORATION, a Florida corporation; Dean R. DeGross; and Carol J. Dunn, Appellees.
    No. 2D10-2284.
    District Court of Appeal of Florida, Second District.
    July 29, 2011.

      Gregg W. McClosky and Kristin J. Mentzer of McClosky, D’Anna & Dieterle, LLP, Boca Raton, for Appellant.
    Brian M. Beason of Wilkins Frohlich, P.A., Port Charlotte, for Appellees DDR Corporation and Carol J. Dunn.
    No appearance for Appellee Dean R. DeGross.
   BLACK, Judge.

BMR Funding, LLC (BMR), timely appeals a final judgment awarding attorneys’ fees to DDR Corporation (DDR) and Carol J. Dunn, pursuant to section 57.105, Florida Statutes (2009), and the provisions of loan documents that were the subject of foreclosure proceedings. Because we conclude that DDR and Dunn failed to plead entitlement to attorneys’ fees, we reverse.

FACTUAL BACKGROUND

On December 21, 2007, BMR’s predecessor in interest, M & I Marshall and Usley Bank (M & I), filed an action seeking foreclosure of its mortgage against DDR. It also sought damages for breach of a promissory note against DDR and damages for breach of guaranties against Dunn and Dean R. DeGross (DeGross). In April 2008, after M & I filed its amended complaint in response to a motion to dismiss, DDR and Dunn filed their answer. The answer did not contain a claim for attorneys’ fees. In November 2008, DDR and Dunn filed a supplemental answer to correct a scrivener’s error but again failed to raise a claim for attorneys’ fees.

Also in April 2008, M & I assigned all of its rights, title, and interest in the mortgage, guarantees, and loan documents to SPCP Group, LLC (SPCP). SPCP was then substituted for M & I as the foreclosing party and owner and holder of the loan documents. On September 15, 2008, the trial court granted final summary judgment of foreclosure in favor of SPCP and judgment against DDR and Dunn in the amount of $6,964,486.59. The court retained jurisdiction for the express purpose of assessing attorneys’ fees and costs in favor of SPCP.

In October 2008, SPCP assigned its rights, title, and interest in the foreclosure judgment and underlying loan documents to BMR. On November 25, 2008, the foreclosure sale was held, and the property was sold to BMR for $100. On December 1, 2008, BMR filed a motion for deficiency judgment against DDR and Dunn. The hearing was scheduled for February 10, 2009, and began as scheduled. However, due to insufficient time to present all evidence, the hearing was continued to February 18, 2009.

Five days before the scheduled continuation of the evidentiary hearing, counsel for DDR and Dunn filed an emergency motion to withdraw and to continue the hearing. The trial court granted the motion, and the hearing was continued to March 19, 2009. New counsel for DDR and Dunn filed a notice of appearance on March 12, 2009. On March 13, 2009, only seven days before the final hearing on BMR’s motion for deficiency judgment, DDR and Dunn filed a notice of intent to seek attorneys’ fees and costs (“Notice of Intent”).

Following completion of the evidentiary hearing, the trial court entered final judgment denying BMR’s motion for deficiency judgment. DDR and Dunn subsequently filed a motion for attorneys’ fees and costs, claiming entitlement to attorneys’ fees and costs for both the foreclosure and deficiency judgment proceedings pursuant to portions of the subject loan documents as well as the reciprocal fees provisions of section 57.105. BMR filed a response to the motion, objecting to DDR and Dunn’s entitlement on multiple bases.

At the hearing on the fee motion, counsel for DDR and Dunn conceded they were not entitled to fees for time spent in defending the foreclosure action and only argued entitlement to fees in defending the deficiency judgment proceedings. Following the hearing, the trial court awarded $44,667.50 in attorneys’ fees to DDR and Dunn. The fee award reflected time spent by all of the attorneys involved in DDR and Dunn’s defense of the deficiency judgment proceedings.

STANDARD OF REVIEW

BMR contests only DDR and Dunn’s entitlement to fees and does not argue that the trial court abused its discretion in determining the amount of the award. Therefore, the only dispute is a legal issue and the de novo standard applies. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010); see also Barco v. Sch. Bd. of Pinellas Cnty., 975 So.2d 1116, 1121 (Fla.2008) (“[A]ppellate courts apply a de novo standard of review when the construction of a procedural rule ... is at issue.”).

DISCUSSION

Because DDR and Dunn did not claim entitlement to attorneys’ fees and costs in any pleading, as defined by Florida Rule of Civil Procedure 1.100(a), the trial court erred in granting DDR and Dunn’s motion for attorneys’ fees and costs. In Stockman v. Downs, 573 So.2d 835 (Fla.1991), the supreme court held that a claim for attorneys’ fees must be pleaded, regardless of whether the claim is based on contract or statute. Id. at 837. This pleading requirement was subsequently clarified in Green v. Sun Harbor Homeowners’ Ass’n, 730 So.2d 1261 (Fla.1998):

This Court’s use of the phrase “must be pled” [in Stockman] is to be construed in accord with the Florida Rules of Civil Procedure. Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a). A motion to dismiss is not a pleading. Stockman is to be read to hold that the failure to set forth a claim for attorney fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver.

Id. at 1263 (emphasis added).

Subsequently, in Precision Tune Auto Care, Inc. v. Radcliffe, 815 So.2d 708 (Fla. 4th DCA 2002), the Fourth District reversed an attorneys’ fee award where the claimant failed to plead entitlement to fees. Applying the supreme court’s ruling in Green, the court stated: “We assume that the supreme court meant what it said and said what it meant in Green. The plaintiffs here were required to set forth their claim for attorney’s fees in a pleading.” Precision Tune, 815 So.2d at 712.

In this case, DDR and Dunn urge this court to find that their “Notice of Intent” satisfied the pleading requirement. In its entirety, the notice states:

Defendants, DDR Corporation and Carol J. Dunn, by and through their undersigned attorneys, hereby provide notice that, if they prevail with respect to Plaintiffs efforts to obtain a deficiency judgment, Defendants intend to seek the recovery of their attorneys’ fees and costs from Plaintiff pursuant to the express terms of the subject Guaranty and the operation of the reciprocal fee provision of F.S. 57.105.

We agree with BMR that the Notice of Intent is not a pleading. Having filed two answers to the amended complaint, DDR and Dunn had multiple opportunities to plead a claim for attorneys’ fees. Thus, DDR and Dunn failed to raise entitlement to attorneys’ fees in any pleading, as defined by Stockman and Green, and any claim they may have had was waived. See Sardon Found. v. New Horizons Serv. Dogs, Inc., 852 So.2d 416, 421 (Fla. 5th DCA 2003).

Further, pursuant to Stockman and Green, the purpose of the pleading requirement is notice. By pleading entitlement to attorneys’ fees, the claimant puts the opposing party on notice, thereby preventing unfair surprise. Sardon Found., 852 So.2d at 421. “The existence or nonexistence of a claim for attorney’s fees may often affect the decision whether to pursue, dismiss or settle a claim. For these reasons, a party may not recover attorney’s fees unless he has put the issue into play by filing a pleading seeking fees.” Id.

Here, not only did DDR and Dunn fail to plead entitlement, their “Notice of Intent” failed to satisfy the purpose behind the pleading requirement. The issue of DDR and Dunn’s entitlement to attorneys’ fees was not raised until the final hearing on BMR’s motion for deficiency judgment was well underway and the foreclosure proceedings were complete. Not only was BMR deprived of any meaningful opportunity to consider whether to proceed with the deficiency judgment in light of possibly being assessed attorneys’ fees, it was never put on notice of a potential claim for attorneys’ fees in any proceeding contemplated during the pendency of the foreclosure action.

Finally, DDR and Dunn urge this court to apply the exception to the pleading requirement recognized by the court in Stockman. “Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” Stockman, 573 So.2d at 838 (citing Brown v. Gardens by the Sea S. Condo. Ass’n, 424 So.2d 181 (Fla. 4th DCA 1983); Mainlands of Tamarac by Gulf Unit No. Four Ass’n v. Morris, 388 So.2d 226 (Fla. 2d DCA 1980)).

DDR and Dunn argue that BMR failed to object to their “Notice of Intent” on the basis that such notice was not a pleading; however, the record conclusively establishes otherwise. BMR’s written response to the “Notice of Intent,” as well as its argument at the fee entitlement hearing, clearly relied upon the pleading requirement and Stockman in objecting to DDR and Dunn’s entitlement to fees. BMR did not “recognize!] or acquiesce[] to that claim” for attorneys’ fees. Stockman, 573 So.2d at 838.

Accordingly, the final judgment awarding attorneys’ fees to DDR and Dunn is reversed.

LaROSE, J., Concurs.

CASANUEVA, J., Concurs in result only.

      . Although a party to the underlying foreclosure and deficiency judgment action, DeGross did not join in DDR and Dunn’s motion for attorneys' fees and was not awarded fees under the final judgment on appeal. As such, no further reference to DeGross's involvement will be made.


author: SUAREZ, J.

text:
    C.G., Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILIES and The Guardian ad Litem Program, Appellees.
    No. 3D11-661.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2011.

      Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region, and Richard F. Joyce, Chief Assistant Regional Counsel.
    Karla Perkins, for The Department of Children and Families; Hillary Kambour, for The Guardian ad Litem Program.
    Before RAMIREZ, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

The Mother, C.G., seeks to reverse a final order terminating her parental rights pursuant to section S9.806(l)(e)l, Florida Statutes (2010). Because there is competent substantial evidence in the record that the Mother failed to substantially comply with the reunification plans and continued to place her child at risk of harm, we affirm the trial court’s findings that clear and convincing evidence supports the termination.

The record shows that the child, A.G., came into state care on October 14, 2008, when she was three years old, after the court found that the Mother’s mental health issues put the child at risk of harm. On December 1, 2008, after the Mother was committed pursuant to the Baker Act, she consented to her child being adjudicated dependent. § 394.467, Fla. Stat. (2010). Thereafter, A.G. was briefly returned to her mother’s care, but ended up back in state custody on January 27, 2009, after C.G. was convicted of prostitution. The child was then placed with her paternal aunt for five months, until she was once again put into foster care in May, 2009. The father is not involved.

On October 7, 2010, the court changed the primary goal of the case plan to adoption and on November 4, 2010, the Department of Children and Families (“DCF”) filed a petition to terminate C.G.’s parental rights. During the termination proceedings, DCF moved for the court to take judicial notice of numerous documents, including court orders and case plans. C.G. argued that DCF was required to re-prove its dependency case by a higher standard of review, i.e., clear and convincing, during the termination proceeding. The court said it would take notice of the adjudication of dependency record, but that it would not consider the dependency orders proven by “clear and convincing evidence.” Rather, the court noticed the orders based upon the weight by which they were entered in the dependency proceedings. The court agreed, on the other hand, that the findings upon which any termination was to be based must be by clear and convincing evidence. Based on the judicially noticed dependency record and order, as well as the additional in-court testimony of several witnesses, the court decided that the least restrictive means of protecting A.G. was to terminate C.G.’s parental rights.

Appellate review of a termination of parental rights case is “highly deferential.” D.P. v. Dep’t of Children & Family Servs., 930 So.2d 798, 801 (Fla. 3d DCA 2006) (citing N.L. v. Dep’t of Children and Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003)). That is, a “finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support.” Id. at 801. With this in mind, the standard of review is whether the trial court’s judgment is supported by substantial and competent evidence. T.V. v. Dep’t of Children and Family Servs., 905 So.2d 945, 946 (Fla. 3d DCA 2005).

In order to terminate parental rights, the state must prove “that it has made a good faith effort to rehabilitate the parent and unify the family through a case plan and related services.” Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). In Padgett, the Florida Supreme Court balanced the fundamental right of parents to raise their children with the ultimate welfare of the child. It determined that:

To protect the rights of the parent and child, we conclude that before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child....
We note that because parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm.

Id. at 571 (emphasis added). Courts use a “least restrictive means” analysis to evaluate the state’s good faith effort and to determine the best interest of the child. Id.; N.S. v. Dep’t of Children & Families, 36 So.3d 776, 780 (Fla. 3d DCA 2010), review denied, 46 So.3d 566 (Fla.2010); B.F. v. Dep’t of Children and Family Servs., 929 So.2d 620 (Fla. 3d DCA 2006).

The record shows that the Mother was assigned five different reunification plans over a two-year period. Each plan required C.G. to maintain a job and secure safe, consistent housing, to undergo regular mental health evaluations and medication management, and to attend substance abuse therapy and parenting classes. At the termination hearing, the witnesses who testified included the dependency services case manager with the Center for Child and Family Enrichment, the child’s Guardian ad Litem, the therapist at the Center for Child and Family Enrichment, the mother’s outpatient substance abuse therapist at the Miami Behavioral Health Center, and the dyadic therapist from the Linda Rey Intervention Center. These witnesses testified that C.G. failed to complete the assigned psychotherapy sessions, medication management program and the dyadic therapy; they testified that C.G. also failed to complete her substance abuse therapy because she stopped attending the counseling sessions and refused to follow a court order that directed her to go into an inpatient substance abuse program. Although C.G. attended the parenting classes, her score on a post-services test led the case manager to conclude that reunification was not a safe option for the child.

The trial court made it clear it did not rely solely on the judicially noticed orders or on any hearsay contained therein to reach its conclusion to terminate C.G.’s parental rights. The facts upon which the dependency orders had been rendered were re-established and added to with clear and convincing evidence provided by the testimony of the case managers, the guardian ad litem, and the therapists involved with C.G. and her child over the past months. The court explicitly stated that it took appropriate judicial notice of the underlying dependency orders and findings, found that there was clear and convincing evidence that the Mother did not substantially comply with the case plans, and that it was in the manifest best interests of the child to terminate the mother’s parental rights. See R.A. v. Dep’t of Children & Family Servs., 724 So.2d 574 (Fla. 3d DCA 1998) (finding without merit the parent’s contention that the dependency order findings had to be re-proven by the higher standard for termination proceedings).

We conclude that the trial court’s finding that clear and convincing evidence supported the termination of parental rights was based, in part, on competent and substantial evidence contained in the underlying dependency records. The state additionally demonstrated, by clear and convincing testimonial evidence, that C.G. failed to substantially comply with the case plans and made little effort to remedy the harmful behavior and circumstances that initially brought her child into foster care. We thus agree with the trial court that termination of the Mother’s parental rights is the least restrictive means of protecting “the ultimate welfare of the child.” Padgett, 577 So.2d at 570 (citing State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957)).

Affirmed.

      . Section 39.806(l)(e)l, Florida Statutes (2010), provides:
      (1) Grounds for the termination of parental rights may be established under any of the following circumstances:

      (e) When a child has been adjudicated dependent, a case plan has been filed with the court, and:
      1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 9 months after an adjudication of the child as a dependent or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child .... (emphasis added)

      . It is "proper for the trial court to take judicial notice of the prior court orders [because a] court record is not subject to dispute." N.W. v. Dep’t of Children & Families, 865 So.2d 625, 626 (Fla. 4th DCA 2004); § 90.202(6), Fla. Stat. (2010).

      . The record shows that C.G. did not substantially comply because she failed to participate in or failed to benefit from the services provided by DCF and this failure to comply endangered her child. The court correctly concluded that C.G.’s "failure to substantially comply ... was not due to either the lack of financial resources ... or by the failure of the Department to make reasonable efforts [in good faith] to reunify die Mother with the Child.” See M.M. v. Dep’t of Children and Family Servs., 867 So.2d 573, 574-75 & n. 1 (Fla. 3d DCA 2004) (finding the Mother's "lackadaisical approach to completing her case reunification plan evidence[d] an unwillingness to organize her life in such a fashion as to care for her children” and that she "authored her own undoing”).


author: WELLS, Chief Judge.

text:
    Norman LEVINE, as Personal Representative of the Estate of Denise Reale, f/k/a Denise Horwitz, Appellant, v. Donald Allen HORWITZ, Appellee.
    No. 3D10-1862.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.
    Rehearing Denied Sept. 9, 2011.
    Barry S. Franklin, Aventura, for appellant.
    Greene Smith and Associates, and Cynthia L. Greene, Miami; Kutner & Associates and Maurice Jay Kutner, Miami, for appellee.
    Before WELLS, C.J., and ROTHENBERG, and SALTER, JJ.
   WELLS, Chief Judge.

Norman Levine, as personal representative of the estate of Denise Reale, appeals from an order denying his motion to substitute Reale’s estate as the petitioner in Reale’s existing alimony modification proceeding and to amend the modification petition. We reverse the denial of Levine’s motion to substitute, but affirm the denial of his motion to amend. We also reverse that portion of the order on review finding that Reale’s existing application for temporary attorney’s fees under section 61.16 of the Florida Statutes abated upon Reale’s death.

Denise Reale and Donald Allen Horwitz were divorced in April 2004. The final judgment dissolving their marriage incorporated a marital settlement agreement which provided for a permanent periodic alimony award to Reale. In July of 2009, Reale petitioned for an upward modification of this award claiming that she needed additional funds to cover recently increased health care costs. She also sought an award of attorney’s fees and costs under section 61.16 of the Florida Statutes. See § 61.16(1), Fla. Stat. (2009).

On January 27, 2010, while the petition for modification was still pending, Reale died. Norman Levine, the personal representative of Reale’s estate, subsequently moved to substitute the estate as the petitioner and to amend the modification petition to clarify that the only alimony being sought was for that period of time between the filing of Reale’s initial modification petition (July 10, 2009), and her death (January 27, 2010). Levine further sought to recover not only those section 61.16 attorney’s fees incurred prior to Reale’s death, but also those attorney’s fees and costs that the estate would incur going forward in the modification proceedings. Citing only to Rosenhouse v. Ever, 150 So.2d 732 (Fla. 3d DCA 1963), the motions were denied.

We agree that Reale’s estate cannot pursue the alimony modification request that she made before her death, nor any future attorney’s fees and costs the estate would incur in pursuing this claim. See Van Boven v. First Nat’l Bank in Palm Beach, 240 So.2d 329, 332 (Fla. 4th DCA 1970) (finding that “when all obligation for alimony under the final decree terminated by virtue of the death of the ex-wife, the court no longer had jurisdiction to consider a petition for modification of alimony provisions irrespective of whether such petition would have been supported by testimony”). However, we cannot agree that the estate is unable secure the attorney’s fees and costs that Reale incurred prior to her death, where she made an express request for same in her initial modification petition. While this Court in Rosenhouse did conclude that such an award could not be requested following a spouse’s death, in Clark v. Clark, 802 So.2d 478, 479 (Fla. 3d DCA 2001), we held that as long as such a request was filed before the death of the party, the issue could be addressed:

We distinguish Rosenhouse based on the fact that in that case the wife’s attorney applied for fees after she died and the proceedings had abated.... We believe, however, that as long as a request for attorneys’ fees is filed prior to the death of the party, it makes no difference whether or not the trial court specifically reserved jurisdiction as to that issue. Because Mr. Clark filed his motions prior to his death, the lower court continued to have jurisdiction over the issue of attorneys’ fees.

The court below should, therefore, have allowed Reale’s estate to be substituted as a party plaintiff for the purpose of pursuing an attorney’s fee and cost award for services rendered in the modification proceeding before her death. See Adler v. Adler, 418 So.2d 1007, 1008 (Fla. 3d DCA 1982) (finding that the decedent wife’s estate was a party within the terms of section 61.16); see also § 733.612(20), Fla. Stat. (2009) (providing that “a personal representative, acting reasonably for the benefit of the interested persons, may properly ... [p]rosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative”).

Accordingly, we reverse that portion of the order on appeal denying Levine’s motion for substitution but affirm that portion of the order denying the motion to amend the modification petition to clarify the period of time for which increased alimony was sought and for the attorney’s fees and costs associated with that amendment. We also reverse that portion of the order finding that Reale’s application for temporary attorney’s fees and costs under section 61.16 abated upon her death.

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

      . This would include appellate fees related to that claim.