author: RAMIREZ, J.

text:
    Frederick W. WARD, Appellant, v. Nahir I. DONES, Appellee.
    No. 3D11-745.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.

      Abramowitz and Associates, and Evan L. Abramowitz, for appellant.
    Fisher and Davidson, and Marie A. Davidson, for appellee.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   RAMIREZ, J.

Frederick Ward, former husband of Nahir I. Dones, appeals the trial court’s acceptance of Dones’ exceptions to the General Magistrate’s report. We reverse because the trial court erroneously vacated the General Magistrate’s determination even though it was based upon competent substantial evidence.

Ward alleges Dones violated a parental planning schedule included in the final judgment dissolving the parties’ marriage. The planning schedule provides the child shall be “free of negative comments and behavior by one parent about the other.” In December .2009, Ward sought contempt against Dones because she allegedly “implant[ed] negative information in the child in an obvious effort to alienate the child from the father.” Ward alleged the child repeated negative statements made about him, which could only have come from Dones. The General Magistrate held an evidentiary hearing, at which Ward, Dones, and the school nurse from the child’s school testified. A recording alleged to be probative of Ward’s version of facts was also played at the hearing.

The General Magistrate found it was impossible for the child to have independently obtained the negative information the child allegedly recounted, and from this premise, the General Magistrate reasoned Ward’s motion should be granted. The General Magistrate’s report and recommendation summarized relevant portions of the record in support of its conclusions.

Dones filed exceptions to the General Magistrate’s report and recommendation, challenging its bases. The trial court reviewed the evidence and determined that, when reviewed as a whole, the evidence could not support the General Magistrate’s conclusion. As a result, the trial court granted Dones’ exceptions and determined a finding of contempt was not warranted. Ward appeals.

“Once a trial court appoints a magistrate to take testimony and make findings, it loses the prerogative of substituting its judgment for that of the magistrate.” Cerase v. Dewhurst, 935 So.2d 575, 578 (Fla. 3d DCA 2006). As a result, “the trial court is bound by the general [magistrate's factual findings unless they are not supported by competent substantial evidence.” Robinson v. Robinson, 928 So.2d 360, 362 (Fla. 3d DCA 2006); see also Bragassa v. Bragassa, 505 So.2d 556, 558 (Fla. 3d DCA 1987); Dent v. Dent, 438 So.2d 903, 904 (Fla. 4th DCA 1983).

The trial court’s decision to grant the exceptions to the General Magistrate’s report and recommendation was error because the trial court exceeded the scope of permissible review. The trial judge reweighed evidence to make different findings based upon the same evidence, rather than determining whether the findings were supported by competent substantial evidence. The trial court could not override the General Magistrate’s credibility determinations regarding the live evidence presented to the General Magistrate. Consequently, we reverse the trial court’s order which vacated the General Magistrate’s determination.

Reversed.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Ricardo Luis ARENAS, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D11-1289.
    District Court of Appeal of Florida, Second District.
    April 27, 2012.
    Rehearing Denied July 5, 2012.

      Christopher E. Cosden of Wilbur Smith Law Firm, Fort Myers, for Petitioner.
    Stephen D. Hurm, General Counsel, Tallahassee, and Jason Helfant, Assistant General Counsel, Lake Worth, for Respondent.
   CASANUEVA, Judge.

Ricardo Luis Arenas petitions this court for a writ of certiorari to review a circuit court order that denied his petition for writ of certiorari. The circuit court’s denial affirmed an administrative hearing officer’s decision that sustained the suspension of Mr. Arenas’ driver’s license. The Department of Highway Safety and Motor Vehicles (the DHSMV) had suspended his license based on his refusal to submit to a breath test upon being arrested for driving under the influence of an alcoholic beverage (DUI). We grant the petition in accordance with the plurality decision in the recent Florida Supreme Court case of Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070 (Fla.2011), which quashed our decision in McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008).

I. Background

Around 1 a.m. on Saturday, November 20, 2010, Lee County Sheriffs Deputy Glenn Jones stopped Mr. Arenas for allegedly driving a motor vehicle while under the influence of an alcoholic beverage. In the encounter, Mr. Arenas refused to engage in a field sobriety test or a breath test. The deputy arrested him for DUI and issued two misdemeanor traffic citations, one for the DUI violation of section 316.193, Florida Statutes (2010), and one for violating section 316.1939 for refusing the breath alcohol level test. Based on this DUI arrest and his refusal to take a breath test, the DHSMV suspended Mr. Arenas’ driver’s license. The State Attorney subsequently declined to prosecute the two misdemeanors, concluding that there was insufficient evidence to prove the case beyond a reasonable doubt. However, the automatic suspension of Mr. Arenas’ driver’s license remained in effect despite the nolle prosequi.

Mr. Arenas exercised his right to a formal review of his suspension as authorized by section 322.2616(2)(b)(3), Florida Statutes (2010). At the hearing, Mr. Arenas moved to invalidate the suspension based on the unlawfulness of his arrest and insufficient evidence of impairment. The deputy’s report that was entered into evidence at this hearing stated that the deputy was in a marked Lee County Sheriffs Office vehicle and working a “position of avoidance for a Fort Myers Police Checkpoint.” The deputy observed Mr. Arenas’ vehicle “appear from behind the building of 2774 First Street, a building which has no public access to it.” He conducted a traffic stop of the vehicle in which Mr. Arenas was the sole occupant. The deputy could detect a moderate odor of alcohol around Mr. Arenas’ mouth and noted that Mr. Arenas had bloodshot and glassy eyes. Mr. Arenas appeared to shuffle through paperwork trying to find the documents the deputy requested. When Mr. Arenas exited the vehicle upon the deputy’s request, he leaned back on the car. With a verbal “no,” Mr. Arenas refused to participate in field sobriety exercises. The deputy then informed Mr. Arenas that “he was impeding [the deputy’s] ability to determine his level of impairment, [that] this could be used against him in future court settings, and that he was still subject to arrest.” The deputy reiterated three times that the exercises were strictly voluntary and that Mr. Arenas was not under any duress to participate, but Mr. Arenas still refused. The deputy then took Mr. Arenas into custody and arrested him for DUI. After being arrested, Mr. Arenas refused to submit to a breath test to determine his blood alcohol level.

Mr. Arenas’ counsel presented the testimony of an investigator, a retired law enforcement officer, to prove that the parking area of the building Mr. Arenas drove from had unimpeded public access. Further, there was no evidence that Mr. Arenas was trying to avoid the checkpoint. Deputy Jones did not testify, in person or by affidavit, and his report contained no such conclusion. Neither did his report contain evidence of where the checkpoint was located.

Despite Mr. Arenas’ insistence that the suspension be invalidated due to the unlawfulness of his arrest, the hearing officer made no such finding. The hearing officer limited her review to three issues: (1) whether the deputy had probable cause to believe that Mr. Arenas was driving the vehicle while under the influence of an alcoholic beverage; (2) whether Mr. Arenas refused to submit to a breath alcohol test after the deputy requested him to do so; and (3) whether Mr. Arenas was told that such refusal would result in suspension of his license for at least a year. See § 322.2615(7)(b)(l)-(S). The hearing officer found that the Department had proven by a preponderance of the evidence all three elements to uphold the suspension. Mr. Arenas then petitioned the circuit court to overturn the hearing officer’s order affirming the suspension.

In his petition for writ of certiorari to the circuit court, Mr. Arenas argued that the deputy had neither probable cause nor reasonable suspicion to effectuate a traffic stop for merely driving his vehicle from around an office building that had no pub-lie access to it at night in a parking area that did have public access. Thus, he argued that the traffic stop was an illegal seizure and, with no sufficient basis for even an investigatory stop, any evidence obtained after the stop would be “fruit of the poisonous tree.” The circuit court noted that as to his further argument that the hearing officer should have ruled whether he had been unlawfully arrested and therefore did not have to consent to a breath test, this district had ruled on the very issue in McLaughlin. And this court had certified the conflict with the Fifth District’s contrary holding as to the scope of the hearing officer’s purview in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304 (Fla. 5th DCA 2008). The circuit court also commented that the supreme court had granted review of the issue that had been raised in a conflict between McLaughlin and Hernandez v. Department of Highway Safety & Motor Vehicles, 995 So.2d 1077 (Fla. 1st DCA 2008), which had also held that the hearing officer, in deciding a challenge to a license suspension, could determine the lawfulness of the motorist’s arrest for DUI. Because the Second District’s holding in McLaughlin was controlling, the circuit court denied Mr. Arenas’ petition, stating that “[a]s in McLaughlin, the issue of whether there was a lawful arrest in the ease at bar is outside of the reviewing powers of the Hearing Officer, and, as a matter of law, cannot be addressed by either the administrative body or any reviewing court.” Upon receiving no relief from the circuit court, Mr. Arenas petitioned this court for further review.

While Mr. Arenas’ petition for writ of certiorari was pending in this court, the supreme court rendered its opinion resolving the conflict between McLaughlin and Hernandez in Mr. Arenas’ favor. Hernandez, 74 So.3d at 1080 (quashing the Second District’s decision in McLaughlin and approving the First District’s decision in Hernandez and the Fifth District’s reasoning in Pelham). It is Justice Quince’s opinion concurring in result only, id., that leads us to grant Mr. Arenas’ petition.

II. Standard of Review

Mr. Arenas has properly invoked “second-tier certiorari” as his remedy because he seeks reversal of the circuit court’s decision on review of an administrative order sustaining the suspension on his driver’s license. See § 322.2615(13). The scope of review is thus narrow and limited to whether the circuit court (a) afforded procedural due process and (b) applied the correct law. Dep’t of Highway Safety & Motor Vehicles v. DeGroot, 971 So.2d 237, 239 (Fla. 2d DCA 2008). This is “simply another way of deciding whether the lower court ‘departed from the essential requirements of [the] law.’ ” Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)). “A ruling constitutes a departure from the essential requirements of [the] law when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Id. (quoting Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003)). “ ‘[C]learly established law* can derive from a variety of legal sources, including recent controlling case law-” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003).

The circuit court applied the then-controlling correct law in our opinion in McLaughlin, and Mr. Arenas does not dispute that he was afforded due process in the circuit court. But due to subsequent events in the supreme court, which has now clearly established the law, he has suffered a miscarriage of justice and we must correct it. Cf. Castillo v. E.l. Du Pont De Nemours & Co., 854 So.2d 1264, 1268 (Fla.2003) (reversing the district court and holding that “the issue of general acceptance [regarding the admissibility of scientific evidence under the Frye v. United States, 293 F. 1013 (D.C.Cir.1923) test] is to be made at the time of appeal, rather than at the time of trial”).

III. The Florida Supreme Court’s Decision in Hernandez

This court, in our McLaughlin decision, differed from the Fifth District in Pelham and the First District in Hernandez about the authority the Legislature gave to administrative hearing officers to decide on the lawfulness of a DUI arrest when that arrest resulted in the suspension of the driver’s license. The supreme court took jurisdiction to settle the interdistrict conflict and rephrased the two questions of great public importance that the First District had originally posed. The two rephrased questions were:

Can the DHSMV suspend a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?

and

Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?

74 So.3d at 1073.

The supreme court answered the first question in the negative and the second in the affirmative. Id. at 1074. The plurality opinion noted that a majority of the court (Justices Pariente, Lewis, Quince, and Perry) agreed with the First District in Hernandez, 995 So.2d at 1079, and the Fifth District in Pelham, 979 So.2d at 305-08, that a suspension can be the result of a refusal to take a breath test but only if the refusal is incident to a lawful arrest. This same majority agreed that the driver must be able to. challenge whether the refusal was incident to a lawful arrest. 74 So.3d at 1073. But the four justices reached that conclusion by differing reasoning. Justices Pariente, Lewis, and Perry agreed with the reasoning of the First and Fifth Districts that the driver can challenge the suspension on the basis of an unlawful arrest in the administrative proceedings. These justices concluded that the statutory framework provided the hearing officer in the administrative proceeding with this authority. Id. Justice Quince did not agree that the statutory framework provided this authority. But she did agree that there must be some mechanism to challenge the legality of the arrest. Id. at 1080. She thus concurred in result only.

Chief Justice Canady, joined in his dissent by Justices Polston and LaBarga, preferred the reasoning of our court in McLaughlin, explaining that the “contrary view adopted by a majority of this Court effectively rewrites the text of section 322.2615(7), Florida Statutes (2006), to expand the scope of the hearing officer’s review beyond the ambit unequivocally laid down in the statute.” 74 So.3d at 1081 (Canady, C.J., dissenting). Chief Justice Canady could not imagine “[a] more direct abrogation of legislative intent[,]” as shown by the legislature’s removing the hearing officer’s authority to review the lawfulness of the driver’s arrest for DUI, which it did in 2006. Id.

Because the justices of the Florida Supreme Court who were in the majority could not agree on the reasoning under-girding their conclusion in Hernandez, we rely on the court’s result to grant Mr. Arenas’ petition.

IV. Mr. Arenas’ Case

When the DHSMV suspended Mr. Arenas’ license because he was arrested for DUI and refused to take a breath test, he appealed that suspension before an administrative hearing officer in a quasi-judicial civil proceeding. See Rowell v. State, Fla. Dep't of Law Enforcement, 700 So.2d 1242, 1243 (Fla. 2d DCA 1997) (explaining that “quasi-judicial agency action is characterized by notice and a hearing — i.e., some sort of factfinding process — pursuant to statutory requirements”); see also Canney v. Bd. of Pub. Instruction, 278 So.2d 260 (Fla.1973) (holding that the school board was acting in a quasi-judicial capacity in deciding whether the student’s suspension should be continued and was thus subject to the Sunshine Law as part of the legisla-five branch of government). The three justices in the plurality in Hernandez reasoned, by construing the statutes in pari materia, that the hearing officer could invalidate the suspension if the hearing officer found that the DUI arrest was unlawful. 74 So.3d at 1079. We construe the Hernandez plurality opinion to mean that someone other than a judge in a criminal or civil proceeding can determine as a matter of law the validity of a Fourth Amendment arrest requiring probable cause or an investigatory stop requiring reasonable suspicion. Whatever Justice Quince’s reasoning was that led her to disagree with the majority’s statutory basis for their conclusion, Mr. Arenas’ case falls squarely within the problem area she envisioned in her concurring-in-result-only opinion. Id. at 1080 (“I cannot concur in the majority’s statutory construction that the hearing officer is statutorily authorized to determine the lawfulness of the arrest. But I acknowledge that there must be a mechanism by which a driver can challenge the lawfulness of the arrest.”).

After his arrest and consequent suspension of his license, Mr. Arenas did not face any criminal prosecution for driving under the influence or refusing to take a breath alcohol test because the State decided not to further proceed against him. Both misdemeanor charges were dropped. When he appealed his license suspension before the hearing officer, she limited her review to the three issues as outlined in section 322.2615(7)(b). At that time, the hearing officer properly exercised her authority as outlined in that subsection. Similarly, the circuit court did not err, for the same reason, when it denied Mr. Arenas’ common law petition for certiorari, based on this district’s controlling McLaughlin precedent at the time. But the landscape has since changed.

Y. Conclusion

In order to avoid subjecting Mr. Arenas to a miscarriage of justice or unconstitutional treatment in his case, as the supreme court has warned, Hernandez, 74 So.3d at 1080, the lawfulness of his stop and arrest by Deputy Jones, which has never been determined, must be reviewed and decided. We grant Mr. Arenas’ petition for certiorari and remand the case to the circuit court to determine the mechanism by which the lawfulness of Mr. Arenas’ arrest may be decided. The circuit court shall either grant Mr. Arenas’ common law petition for certiorari and remand the case to the DHSMV so the hearing officer can determine the lawfulness of the arrest and the consequences thereof or allow Mr. Arenas leave to file a declaratory action under chapter 86, Florida Statutes, for the same purpose. Thus, in either manner, Mr. Arenas will be provided a mechanism he needed to review the lawfulness of his arrest, as Justice Quince and the plurality envisioned in Hernandez.

Petition for writ of certiorari to the circuit court granted for proceedings in accordance with this opinion.

SILBERMAN, C.J., and DAVIS, J., Concur.

      . We note, although it is not germane to our holding — but will be germane on remand — • that Mr. Arenas provided proof that he resides at 2745 First Street, Ft. Myers, which is across the street from the office building from the rear of which the deputy saw him come around that night. The evidence at the administrative hearing also indicated that there was no legal or physical barrier to ingress to or egress from the parking area of this office building even if, as the deputy noted, the building itself at that time of night had no public access to it. Further, the evidence before the hearing officer was silent as to any recent criminal activity in that area.

      . Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      . Besides holding contrary to our decision in McLaughlin, the First District has also certified two questions of great public importance, discussed infra.

      . In 2006, section 322.2615(7)(b) provided as follows:
      (b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
      1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
      2. Whether the person was placed under lawful arrest for a violation of s. 316.193.

      3. Whether the person refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
      4. Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
      (Emphasis added.)
      Contrast this with the statute as revised in chapter 06-290, section 45, at 2960, Laws of Florida, effective October 1, 2006:
      If the license was suspended for refusal to submit to a breath, blood, or urine test:
      1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
      2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
      3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

      . The 2010 statute that the hearing officer relied upon to outline the issues to be decided is the same as the 2006 statute as amended, effective October 1, 2006. See supra note 4.

      . We suggest these alternative methods because, as a result of Justice Quince’s concurring-in-result-only opinion, there is not a clear majority for the view that the statutory framework gives a hearing officer in the DHSVM’s Bureau of Administrative Reviews the necessary jurisdiction to review the lawfulness of Mr. Arenas’ arrest.


author: PER CURIAM.

text:
    Richard L. AARON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0471.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Rehearing Denied July 5, 2012.
    Richard L. Aaron, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., CLARK, and MAKAR, JJ., concur.


text:
    Willie BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0645.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Rehearing Denied July 5, 2012.
    Willie Brooks, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., CLARK, and MAKAR, JJ., concur.


author: NORTHCUTT, Judge. ALTENBERND, Judge,

text:
    Timothy GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2855.
    District Court of Appeal of Florida, Second District.
    May 9, 2012.
    Rehearing Denied June 28, 2012.

      James Marion Moorman, Public Defender, and Jeanne Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

A jury convicted Timothy Green of two counts of grand theft. We find merit in his challenge to one of those convictions, involving Argent Mortgage Company. We affirm without discussion on Green’s other two points on appeal, the first challenging his other grand theft conviction, and the second asserting error in the trial court’s exclusion of evidence.

In August 2004, Green was working as a mortgage broker. He arranged for his mother to purchase a piece of real estate in Florida, and he acted as her agent in obtaining a $126,000 mortgage on the property. Green submitted a mortgage application to Argent that contained inaccurate and false information. For example, the application represented that the property would be owner-occupied, when in fact Green’s mother lived in Ohio and never intended to permanently move to this state. Several of the representations about Ms. Green’s income were inconsistent and one of the representations was utterly false. Her income was stated on the application to be $3300 per month, but a bank document introduced at trial showed that she received monthly retirement benefits of only $1634.90. An Argent representative testified that the application would have been declined if it had been based on Ms. Green’s actual income.

After obtaining the mortgage loan to his mother, Green himself actually made the payments to Argent. It is undisputed that every installment was paid on time and that the loan was repaid in full about six months after it was funded.

The State charged Green with grand theft of property valued at $100,000 or more. § 812.014(2)(a)(l), Fla. Stat. (2004). A person

commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit from the property, or (b) appropriate 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(l)(a), (b).

To support a conviction, the State must prove that the accused knowingly obtained the property of another with the intent to either deprive the other person of the property or to appropriate the property for his own use. Ginn v. State, 26 So.3d 706, 712 (Fla. 2d DCA 2010). The intent to steal is a necessary element of theft, and the State bears the burden of establishing that the alleged stolen property was taken with this intent. Id. Intent, a state of mind, is rarely susceptible of direct proof. It is almost always shown solely by circumstantial evidence. Sebastiano v. State, 14 So.3d 1160, 1165 (Fla. 4th DCA 2009). As such, the State’s case is subject to the rule that “[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

In this case, the State’s theory of theft was that Green obtained the funds from Argent by misrepresentation or false pretenses. Certainly, obtaining another’s property “by fraud, willful misrepresentation of a future act, or false premise” or by “false pretenses, fraud, or deception” can constitute the crime of theft. § 812.012(c), (d)(1); Hebert v. State, 25 So.3d 612, 614 (Fla. 1st DCA 2009), review denied, 36 So.3d 655 (Fla.2010). No one really disputes that the documents submitted to Argent were sufficient to prove that Green obtained the mortgage by these means. But while the misrepresentations could provide circumstantial evidence of Green’s intent to steal, i.e., to deprive Argent of its money, that inference was contradicted by the fact that Green made every payment on the loan when it came due, and in fact repaid the mortgage in full.

As the court observed in Barrios v. State, 75 So.3d 374 (Fla. 4th DCA 2011), a misrepresentation on a mortgage application does not prove that the applicant never intended to repay the borrowed funds. Cf. Vroom v. State, 48 So.3d 82, 84 (Fla. 2d DCA 2010) (noting that while evidence established that the victim had been deprived of funds because of a mortgage broker’s actions, the State failed to prove that the broker intended to deprive the victim of his funds; the fact that the broker was not very successful in selling loans did not establish that he knew he would be unable to complete a transaction a client had paid him for; conviction for grand theft reversed). Likewise, here the evidence of Green’s misrepresentations on the mortgage application was not inconsistent with the reasonable hypothesis that he intended to repay the loan.

We reverse Green’s conviction for grand theft of Argent’s property. We remand to the circuit court to discharge him on this crime and to resentence him based solely on his other conviction for grand theft.

Affirmed in part, reversed in part, and remanded.

KELLY, J., Concurs in result only.

ALTENBERND, J., Concurs Specially.

ALTENBERND, Judge,

Specially concurring.

I concur in the outcome of this unusual case because the State never proved that Mr. Green unlawfully obtained or used, endeavored to obtain or use, or appropriated the bank’s property to his use or the use of another not entitled to use the property. But I am not entirely convinced that the outcome of this case is controlled by the special standard generally applicable to cases “where a conviction is wholly based on circumstantial evidence.” State v. Law, 559 So.2d 187, 188 (Fla.1989); see also Walker v. State, 957 So.2d 560, 577 (Fla.2007); Galavis v. State, 28 So.3d 176, 178 (Fla. 4th DCA 2010). I am the first to admit that the line that distinguishes direct evidence from circumstantial evidence is sometimes not intuitive to me. Moreover, it is not always easy for me to decide whether a conviction or an element of an offense is based wholly on circumstantial evidence, or based on both direct and circumstantial evidence thereby rendering it unnecessary to apply the special standard of review applicable to circumstantial evidence cases. See Wilson v. State, 493 So.2d 1019, 1022 (Fla.1986), receded from on other grounds by Evans v. State, 838 So.2d 1090 (Fla.2002).

As explained in the court’s opinion, Mr. Green submitted an application for a loan that contained at least one material representation that was “utterly false.” There is direct evidence that Mr. Green submitted the application and received these funds. A jury could have decided that Mr. Green knowingly submitted an application for a loan relying on his mother’s credit history and on an exaggerated income. He did this either to obtain a loan that the bank would not have extended to him alone or to obtain a loan at an interest rate more favorable than the rate that would have been extended based on his own earnings and credit history.

But the information charged that he “did unlawfully obtain or use, or endeavor to obtain or use” money, i.e., loan proceeds in the amount of $100,000. The problem, as I see it, is that the bank gave him these funds in a completely normal, secured transaction. The bank obtained rights to the real property identified in the mortgage, and it received all payments to which it was entitled. There is no question that Mr. Green did not permanently deprive the bank of any rights in this money. As charged, I am not convinced that he even temporarily deprived the bank of any property rights.

If the information had charged that Mr. Green knowingly and unlawfully obtained money that the bank would have received under a higher interest rate associated with the correct risk in this transaction, the alleged theft would have been a matter of lost interest income and the amount taken would have been much smaller than $100,000. Assuming that such a “theft” of income would qualify as a theft under the broad language of the statute, if this had been the charge alleged in the information and all other elements were proven, I am inclined to believe that intent would have been an issue appropriate for jury resolution. See Walker, 957 So.2d at 577; Galavis, 28 So.3d at 178.

This is simply a very unusual case, and I would not wish our evaluation of the circumstantial nature of the evidence of intent in this case to apply in more typical criminal eases.

      . This assumption might be wrong. As this court's opinion notes, Mr. Green obtained the loan by misrepresentation. The bank was not deprived of property. Rather, it was deprived of future income that would have resulted from a higher interest rate.


text:
    Cornelius Lavella ROLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-769.
    District Court of Appeal of Florida, First District.
    May 9, 2012.
    Rehearing Denied July 3, 2012.
    Cornelius Lavella Roland, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

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


author: SILBERMAN, Chief Judge.

text:
    Ronald Blake HATTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2119.
    District Court of Appeal of Florida, Second District.
    May 11, 2012.
    Rehearing Denied July 5, 2012.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
   SILBERMAN, Chief Judge.

Ronald Hatton seeks review of the order summarily denying his motion for postcon-viction relief which was filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of all claims but claim two.

In January 2005, a Pinellas County jury found Hatton guilty of sexual activity by a person in familial authority and lewd and lascivious exhibition. The trial court sentenced Hatton to thirty years in prison for the first charge concurrent with a fifteen-year term on the second charge. The court subsequently granted Hatton a new trial based on allegations of juror misconduct. Hatton was retried in front of a successor judge, found guilty, and sentenced to the same prison terms, but they were to be served consecutively. For reasons not reflected in the record, the successor judge subsequently vacated that judgment and sentence. In November 2005, the successor judge resentenced Hatton to thirty years in prison for the first charge and a consecutive fifteen years for the second charge. This court affirmed Hatton’s judgment and sentence on direct appeal. See Hatton v. State, 970 So.2d 831 (Fla. 2d DCA 2007) (table).

In February 2009, Hatton filed his rule 3.850 motion, which he later amended. In pertinent part, Hatton asserted that counsel was ineffective for failing to advise him that he could receive a harsher sentence on retrial. He contended that he would not have agreed to the filing of a motion for new trial if counsel had informed him of his potential sentence. In denying relief on this claim, the postconviction court concluded that Hatton had not established prejudice because the determination of the sentence on retrial was within the trial court’s discretion. The court also noted that defense counsel would have been ineffective for failing to make the motion for new trial because it was granted based on fundamental error.

We cannot agree with the postconviction court’s ruling. Hatton has adequately alleged prejudice by asserting that he was exposed to a harsher sentence, that he did not know he could get a harsher sentence, and that the trial court actually imposed a harsher sentence than the one originally imposed. And it was ultimately Hatton’s decision whether to seek a new trial, regardless of whether the error was fundamental. While it seems questionable that Hatton would not have pursued a new trial, the record does not refute his claim that he would have declined that opportunity if he knew he would be exposed to a harsher sentence. Accordingly, we reverse and remand for reconsideration.

Affirmed in part, reversed in part, and remanded.

KELLY and BLACK, JJ., Concur.


text:
    Timmy E. PILGREEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2046.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Rehearing Denied July 3, 2012.
    Timmy E. Pilgreen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


author: GRIFFIN, J.

text:
    WHISTLER’S PARK, INC., Appellant, v. The FLORIDA INSURANCE GUARANTY, etc., Appellee.
    No. 5D10-2410.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2012.
    Rehearing Denied June 28, 2012.
    Scott Dornstein and Keith J. Lambdin, of Katzman Garfinkel Berger, Maitland, for Appellant.
    Hinda Klein, of Conroy, Simberg, Ga-non, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, and Harold Davis Lewis, Jr. and Dale R. Hightower, of Hightower, Stratton, Wilhelm, Orlando, for Appellee.
   GRIFFIN, J.

Whistler’s Park, Inc. [“Whistler’s Park”] appeals the summary final judgment entered in favor of The Florida Insurance Guaranty Association [“FIGA”], as Successor in Interest for Southern Family Insurance Company [“Southern Family”], based on Whistler’s Park’s refusal to submit to an Examination Under Oath [“EUO”]. We reverse.

Background — The 2005 Suit

On August 13, 2004, Banana Cay Apartments, Inc. d/b/a Bristol Bay Apartments [“Banana Cay”] sustained property damage during Hurricane Charley. At the time, Banana Cay had a property insurance policy through Southern Family and made a claim. Southern Family paid $363,635.79. On June 23, 2005, James F. Basque [“Basque”], as counsel for Banana Cay, sent a letter to the Florida Department of Insurance, Consumer Assistance/Civil Remedy Section, referencing Banana Cay’s policy with Southern Family:

On behalf of Banana Cay Apts., Inc., the insured under the referenced policy, we are filing herewith a Civil Remedy of Insurer Violation. As described in such Notice, we are making this filing on the basis of the Insurer’s grossly underestimated value of the Insured’s loss, in violation of Sec. 624[.]155(l)(b)(l) of the Florida Statutes; and the Insurer’s failure to acknowledge and act promptly upon communications with respect to the Insured’s claim, in violation of Sec 626.9641(l)(i).

On August 18, 2005, Alec D. Russell [“Russell”], as counsel for Southern Family, sent Banana Cay a letter regarding Banana Cay’s claim:

Our firm represents Southern Family Insurance Company with regard to the above-referenced claim. This letter is to request the most knowledgeable representative(s) of Bristol Bay Apartments submit to an examination under oath as provided in the above-referenced Policy. If Bristol Bay Apartments is represented by counsel in this matter, please forward this letter to your attorney and ask him or her to contact us immediately so that all future contact from our office will be through your counsel.
We wish to schedule the examination under oath within the next sixty (60) days. However, for the examination to be meaningful, we first need to review various documents relevant to your claim. To that end, we hereby request that you provide the following documents to the address above within the next thirty days:
1.All estimates, paid and unpaid invoices, cancelled checks, contracts or other documents evidencing repairs or damage to the premises caused by the hurricane;
2. All contractors’ logs and notes or other documents reflecting inspections, test results or work performed on the premises;
3. All expert reports regarding damage to the premises caused by the hurricane;
4. A list of all personal property damaged, including dates of purchase, places of purchase, purchase prices, current replacement costs and descriptions of damage;
5. Copies of purchase receipts for all personal property items being claimed;
6. All Association minutes for the past five (5) years (redacting only attorney/client communications);
7. A calculation of all claimed loss of income and/or business interruption, including all supporting schedules and documentation;
8. Federal corporate tax returns for the years ended December 31, 2002 and December 31, 2003, including all schedules;
9. Year End Statements of Income (Profit/Loss Statements) for the years ended December 31, 2002 and December 31, 2003, as well as the Year-To-Date August 31, 2004;
10. Monthly Statements of Income (Profit/Loss Statements) from September 2004 through April 2005, and throughout the period of restoration, as they become available;
11. Monthly bank statements from January 2002 through April 2005, and throughout the period of restoration, as they become available;
12. Quarterly payroll tax returns, forms 941 and UST-6, from the quarter ended March 31, 2002 through the quarter ended December 31, 2004, and throughout the period of restoration, as they become available;
13. Payroll journals from July 1, 2004, through April 81, 2005, and throughout the period of restoration, as they become available.
14. All contracts and related documents concerning the sale of the premise and/or its redevelopment or conversion from apartments into condominiums;
15. All bank statements, bank accounts, cancelled checks, ledgers and insurance trusts, if any, of the named insured, as well as those for any related corporations and officers or shareholders from the date of the loss until the present; and,
16. Extra expense documentation, including but not limited to invoices and receipts.
Please call me directly or my assistant ... to schedule the examination under oath for a mutually convenient time and to confirm that you will provide the requested documents. You may provide us with copies of the requested documents and produce the original documents at the examination. We will, of course, work with you if you need a reasonable extension of time to assemble voluminous documents. Thank you for your anticipated cooperation.

Shortly thereafter, on September 13, 2005, Basque, as counsel for Banana Cay, sent a letter to Russell advising Russell of his and his firm’s representation of Banana Cay, and instructing Russell to direct all future correspondence and communication to him.

On September 27, 2005, Banana Cay assigned its right, title, and interest in the claim under the Southern Family Policy, “including all causes of action arising out of or related thereto,” to Whistler’s Park. Ken Dixon, as Vice President of Banana Cay, and as Vice President of Whistler’s Park, executed the assignment. The assignment appears to have resulted from a change in operation of the property from apartments to a condominium.

Southern Family’s attorney, Russell, on December 13, 2005, sent a letter to Banana Cay’s attorney, Basque:

In your letter of September 13, 2005, you acknowledge receipt of my August 18, 2005 letter, a copy of which I am enclosing for your review. It has been more than three months since you received our request for document production and an examination under oath of your corporate representative and you have not responded to either request. As you are aware, we are entitled to both under the terms of the Policy. Please advise at your earliest convenience when we can expect production of the requested documents and when your corporate representative will be available to give an examination under oath.

Basque responded, stating:

Following up on our telephone conversation yesterday, this confirms my client is assembling appropriate documents in response to your request. These documents will be made available for inspection and copying at my client’s headquarters at 1637 East Vine Street, Suite E, Kissimmee, FL. Given the holidays and related travel absences, I anticipate that the assembled documents will be ready for examination by mid to late January. As I mentioned yesterday, my chent’s corporate representative is Kenneth G. Dixon.

On or about December 20, 2005, Whistler’s Park filed suit against Southern Family for breach of the insurance contract based upon Southern Family’s alleged failure/refusal to pay all of Banana Cay’s covered losses, and for violations of chapter 624, Florida Statutes. Southern Family moved for summary judgment, asserting:

10. Under Florida law, PLAINTIFF materially breached the Policy by filing suit against SOUTHERN FAMILY before PLAINTIFF’S assignor, Banana Cay, complied with SOUTHERN FAMILY’S EUO request. Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 306 (Fla. 4th DCA 1995)
11. PLAINTIFF’S material breach bars this Action and thus SOUTHERN FAMILY is entitled to summary judgment as a matter of law. See id.

On May 31, 2006, FIGA became the successor in interest to Southern Family, through an order appointing FIGA as receiver of Southern Family for purposes of liquidation and policy transition, and providing notice of an automatic six month stay for all proceedings in which Southern Family was a party or was obligated to defend a party.

On January 15, 2007, counsel for Whistler’s Park wrote counsel for FIGA a notice pursuant to section 57.105, Florida Statutes, asking that the motion for summary judgment be withdrawn because an EUO was never actually scheduled and there had been no refusal to attend one. The letter also reiterated a willingness to appear for an EUO or deposition. According to appellant, FIGA did not respond.

On February 13, 2007, the trial court entered its order granting the summary judgment motion, concluding: “[DJefen-dant is entitled to judgment as a matter of law because the plaintiff failed to comply with a condition precedent to filing suit by failing to attend an ‘EUO’ which was requested by the defense prior to the filing of plaintiffs complaint.” This order was subsequently rescinded for procedural reasons.

The Current Litigation

Whistler’s Park later sought to amend the complaint in order to substitute FIGA as a party, but for reasons not apparent on the record, the trial court denied the motion. Whistler’s Park filed a separate suit against FIGA for breach of the insurance contract based upon Southern Family’s and FIGA’s refusal to pay all of the covered losses sustained by Banana Cay during Hurricane Charley. FIGA, in turn, filed a petition for declaratory relief and decree. The trial court granted FIGA’s motion to transfer the underlying suit to the Complex Business Litigation Court and ordered consolidation with FIGA’s petition.

FIGA then filed its motion for summary judgment on the basis of Whistler’s Park failure to comply with Southern Family’s requests for an EUO before filing suit. Ultimately, the trial court granted FIGA’s motion for summary judgment:

As to whether the condition precedent was complied with, review of the affidavits submitted by both Plaintiff and Defendant show that Defendant’s assignor did not sit for a requested examination under oath prior to the filing of the 2005 Lawsuit. (Russell Aff. 3, 4 & 6; Dixon Aff. 6-8; Basque Aff. 4; Hardy Aff. 4.) As such, it is undisputed that an examination under oath was requested and that Defendant’s assignor did not sit for such an examination prior to the filing of the 2005 Lawsuit. Defendant’s argument that its assignor was willing and ready to sit for an examination has no merit. The clear language of the Policy requires full compliance on Defendant’s part. Consequently, the Court finds that Defendant failed to comply with a condition precedent prior to the filing of the 2005 Lawsuit, making the entry of summary judgment in favor of Plaintiff proper. See Amica Mut. Ins. Co. v. Drummond, 970 So.2d 456 (Fla. 2d DCA 2007) (an insured’s failure to submit to a requested examination under oath is a material breach of a condition precedent and relieves the insurer of its obligations under the policy).
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiffs motion for summary judgment is GRANTED.

On June 15, 2010, the trial court entered final judgment in favor of FIGA in its suit for declaratory relief and decree as well as in the underlying suit.

The outcome of this appeal is determined by this court’s recent decision in State Farm Mutual Automobile Insurance Company v. Curran, 83 So.3d 793 (Fla. 5th DCA 2011). In Curran, we held: “[T]o avoid liability under the insurance policy based on non-compliance with the CME clause, it was essential that [the insurer] plead and prove a material breach, which means a breach causing prejudice.” Id. at 803. This case illustrates the soundness of the reasoning behind Curran.

As discussed in Curran, several of Florida’s district courts of appeal have concluded that the failure of an insured to appear for an EUO prior to filing suit to recover an unpaid claim is a material breach of contract, requiring forfeiture of coverage. These decisions have led to a cottage industry of EUO litigation. If an insurer can procure a failure to comply — or, even better, a refusal to comply — with the EUO requirement, they have a perfect defense to payment. Similarly, if counsel for insureds can bait the insurer into refusing payment without adequate justification, this may trigger a bad faith claim. The actual, if unglamorous, true purpose of the EUO — verification of the insured’s loss— has been lost in this larger battle. No doubt there can be genuine instances of insurance fraud, but the recent and ever— escalating number of EUO cases that have arisen all over the state appear to be more about strategy than truth.

Most policies provide that an insurer can demand multiple EUO’s and unlimited records and that insureds cannot even have counsel present. The breadth of this power, combined with the promise of forfeiture if the insured is not compliant, has had predictable results, an example of which can be seen in the recent decision of the Third District Court of Appeal in De Leon v. Great American Assurance Co., 78 So.3d 585 (Fla. 3d DCA 2011). There, the court concluded that the insurer took advantage of its contractual right to conduct an EUO by “unwarranted” and “intrusive” EUO questioning that the court found to be impertinent, improper and irrelevant to the claim. De Leon, 78 So.3d at 587, 591. In the face of repeated threats by the insurer’s counsel that refusal to answer whatever questions the insurer’s counsel chose to ask would void coverage, the Third District Court of Appeal said that the insured was “completely justified” in refusing to answer. Id. at 588-89.

In Curran, this Court concluded that the insured breached the insurance policy by failing to attend two scheduled compulsory medical examinations [“CME”] and by filing suit before complying with the CME provision in the contract, but that the breach did not defeat coverage because the insurer was not prejudiced by the breach. Curran, 83 So.3d at 795. In reaching its conclusion, this Court addressed the effect of contract language that “precludes any action against the insurer ‘until’ the claimant complies with the terms of the contract.” Id. at 803. Curran explained that when a presuit request for a CME is made, it becomes a condition to the right of the plaintiff insured to file suit, and, if failure to meet the condition is raised as an issue, it may be cured under most circumstances. Id. at 803. Also, with respect to the effect of the insured’s breach, this Court said:

Our conclusion that a breach occurred does not end our labor, however. While the policy provides that no right of action against the insurer exists until all policy terms have been met, nothing in the language of the policy imposes a forfeiture of benefits in the event of a breach of the duty to submit to a CME. The CME requirement is grouped with other duties (conditions subsequent) a claimant has when an accident occurs and a claim is asserted. Those other duties include, for example, the duty to notify police within 24 hours, report the claim within 30 days, allow an inspection of the vehicle, give an examination under oath and deliver suit papers to the insurer “at once.” In the absence of policy language imposing a penalty or forfeiture in the event of non-compliance with these provisions, we think the remedy must be proportionate to the harm that results from the breach, just as it is in other contractual disputes. Had the alleged breach here involved the failure to report the accident to the police within 24 hours or to deliver the suit papers “at once,” in the absence of resulting prejudice, we would glibly dismiss the breach as inconsequential. The same prejudice analysis should apply here.

Id. at 802.

In this case, Southern Family requested an EUO, but never set a time or place for it. Rather, it instructed Banana Cay to call to schedule the EUO. Banana Cay does not appear to have called to schedule the EUO before filing suit; however, counsel for Banana Cay and Whistler’s Park did provide the name of Kenneth G. Dixon as his “client’s corporate representative,” and when FIGA raised the failure to submit to an EUO as a defense, the offer to submit was renewed. By that time, however, under the case law that was rejected in Curran, even though the EUO was never actually scheduled by the insurer, by not having appeared for the requested EUO before filing suit, the defense to the claim was complete. Nothing could revive the insured’s right to be paid for its loss.

In light of Curran, FIGA carried the burden of pleading and proving a breach that caused prejudice. FIGA did not plead or assert prejudice. In fact, in its motion for rehearing, reconsideration, and/or clarification, Whistler’s Park asserted:

19.... There is simply no prejudice to FIGA if this matter is stayed or abated to allow the EUOs to be taken. This is not a case where the insured is hiding the property or evading the insurance company. Once the conditions precedent are complied with, both parties will be virtually trial ready, thus making an economical use of judicial resources.

The record contains the affidavit of Kenneth G. Dixon, in which he states:

1. My name is KENNETH DIXON. I am at least 18 years of age and I was an officer and/or agent of the company that owned Bristol Bay Apartments. I have personal knowledge of the facts below.
2. On August 13, 2004, Hurricane Charley struck the Bristol Bay Apartments property, causing major damages.
3. Following Southern Family Insurance Company’s (“Southern Family”) initial adjustment of the claim, I retained a public adjuster to further evaluate the property damage. I also began calculating damages for business interruption, for which I was covered under the Southern Family policy.
4. My public adjuster, Thomas Stone, forwarded his estimate of damages to Southern Family in December, 2004.
5. Southern Family failed to re-inspect the property or perform any further investigation for nearly one year. In mid-2005 I engaged the services of James Basque, Esq., to represent me in my claim against Southern Family.
6. Despite Mr. Basque’s efforts, no further response from Southern Family was forthcoming, until August, 2005 when it requested the production of documents and an examination under oath.
7. I advised my counsel that I would appear for an examination under oath at any time and that I would prepare the documentation Southern Family had requested as soon as possible.
8. To my knowledge, Southern Family never scheduled my examination under oath.
9. I have never refused to appear for an examination under oath, nor would I under any circumstances.
10. Following the filing of the lawsuit against Southern Family, no examination under oath was ever requested.
11. Similarly, FIGA has never scheduled or requested my examination under oath, nor requested my deposition. FIGA has also engaged in very limited written discovery, which I have complied with.
12. There was never a refusal to produce documents or a withholding of evidence from Southern Family Insurance Company or Florida Insurance Guaranty Association, Inc.
13. I remain ready willing and able to comply with the Examination Under Oath and Document Inspection.

The record evidence in this case indicates that the delay in obtaining Banana Cay’s EUO caused by Banana Cay’s failure to comply with Southern Family’s request to schedule an EUO prior to filing suit did not prejudice FIGA. See Southgate Gardens Condo. Ass’n v. Aspen Specialty Ins. Co., 622 F.Supp.2d 1332, 1337 (S.D.Fla. 2008) (“[D]ismissal without prejudice to allow belated compliance with the EUO provision is the most prudent course of action”); Wright v. Life Ins. Co. of Ga., 762 So.2d 992 (Fla. 4th DCA 2000).

REVERSED and REMANDED.

TORPY and LAWSON, JJ., concur.

      . Banana Cay was doing business as Bristol Bay Apartments.


author: DAVIS, Judge.

text:
    Dustin D. ODOM, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2075.
    District Court of Appeal of Florida, Second District.
    May 18, 2012.
    Rehearing Denied June 19, 2012.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Dustin D. Odom challenges the thirty-six-month prison term imposed following a revocation of his community control for the original offense of possession of a controlled substance. The only issue raised by Odom’s counsel and answered by the State is related to the possession issue discussed in State v. Adkins, 71 So.3d 184 (Fla. 2d DCA), review granted, 71 So.3d 117 (Fla.2011). But Odom’s revocation was based on a technical violation and does not involve any possession-related new law violations. Because the Adkins issue relates only to his underlying conviction and not to the revocation and sentence currently before this court, we affirm Odom’s revocation and resulting sentence without further comment.

Affirmed.

NORTHCUTT and BLACK, JJ., Concur.


text:
    Timothy McWINN, Petitioner, v. Mediha KAPETANOVIC, Respondent.
    No. 1D12-2015.
    District Court of Appeal of Florida, First District.
    May 22, 2012.
    Rehearing Denied July 5, 2012.
    Timothy McWinn, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.100(c)(1).

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    Harvey TEMPEL and Lisa A. Tempel, Appellants, v. SOUTHERN HOMES OF PALM BEACH, L.L.C., Appellee.
    No. 3D11-2521.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.

      Cohen, Norris, Wolmer, Ray, Telepman & Cohen, and Robert M. Weinberger, North Palm Beach, for appellants.
    Michael J. Yates, and Matthew M. To-nuzi, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The buyers, Harvey Tempel and Lisa A. Tempel, appeal the trial court’s order in which the court determined that the seller, appellee Southern Homes of Palm Beach, L.L.C., substantially complied with the requirements set forth in section 720.401, Florida Statutes (2011). We conclude that the subject residential purchase and sale agreement, along with pertinent provisions of the accompanying addenda, is not in compliance with the requirements of section 720.401, and therefore reverse.

In May of 2005, the parties entered into a purchase and sale agreement in which the seller agreed to build a new home in a residential community. The agreement contained Addendum “M” Community Addendum, which disclosed additional terms, and the buyers’ obligations and liability to the homeowner’s association. It also contained Addendum “H” Association Disclosure Summary.

There are three relevant provisions. Paragraph 3 of the Disclosure Summary states: “[PjURCHASER WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE ASSOCIATION. PURCHASER MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE RESPECTIVE MUNICIPALITY, COUNTY OR SPECIAL DISTRICT. ALL ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE.” Paragraph 5 of the Disclosure Summary states: “[TjHERE WILL BE AN OBLIGATION TO PAY RENT OR LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN OBLIGATION OF THE ASSOCIATION.” Paragraph 8.1 of the Community Addendum states: “[ajssessments are estimated to be 385.00 Dollars ($385.00) per month at this time.”

In December of 2007, the buyers terminated the agreement. They filed a two count complaint against the seller, seeking to void the agreement. In count I, the seller sought revocation of the agreement based upon the Interstate Land Sales Full Disclosure Act, 15 USC § 1701 et. seq. In count II, they sought to void the agreement based upon section 720.401, Florida Statutes (2011), arguing that the disclosure summary failed to comply with the requirements of section 720.401. The buyers moved for summary judgment, and the seller cross-claimed as to count II and moved for summary judgment on count I. The court entered summary judgment in favor of the seller on counts I and II, and this order forms the basis of this appeal.

Section 720.401 requires the seller to provide a prospective buyer with a disclosure summary, if the property is located within a community subject to association membership. The disclosure summary-must be presented to the prospective buyer prior to the execution of the contract for sale, see § 720.401(l)(a), and it must be in a form that is substantially similar to the following form:

DISCLOSURE SUMMARY FOR (NAME OF COMMUNITY)
(6) THERE MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS’ ASSOCIATION. IF APPLICABLE, THE CURRENT AMOUNT IS $_PER_

See § 720.401(l)(a)(6), Fla. Stat. (2011). The Florida legislature amended section 720.401 in 2004. The predecessor statute, section 689.26(l)(a), provided as follows:

5. THERE (IS) (IS NOT) AN OBLIGATION TO PAY RENT OR LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS’ ASSOCIATION. (If such obligation exists, then the amount of the current obligation shall be set forth.)

See § 689.26(l)(a), Fla. Stat. (2003).

The buyers argue that the disclosure summary fails to summarize information consistent with the requirements of section 720.401 as amended. More specifically, the buyers argue that the disclosure statement fails to disclose the amount of the current assessment and the time period the assessment covered. Furthermore, the buyers argue the court erred when it searched outside of the disclosure summary for information required to be disclosed. We agree.

We first consider the express language of section 720.401(a)(l)(6). It is well established that courts -will not look behind the plain language of a statute or resort to rules of statutory construction to ascertain legislative intent if a statute is clear and unambiguous. See Lee County Elec. Co-op., Inc. v. Jacobs, 820 So.2d 297, 308 (Fla.2002); Turnberry Investments, Inc. v. Streatfield, 48 So.3d 180, 182 (Fla. 3d DCA 2010). Furthermore, an unambiguous statute must be given its plain and obvious meaning. See Turnberry Investments, 48 So.3d at 182. Section 720.401(a)(1)(6) clearly and unambiguously states that a disclosure summary must include, if applicable, the current amount for membership in the homeowners’ association and the time period which the amount covers.

It is undisputed that the disclosure summary itself does not contain the current amount due for membership in the association and the period which the amount covers. The seller argues, however, that the agreement is in a form substantially similar so as to satisfy the requirements of section 720.401. The court agreed that Addendum H, along with pertinent provisions of the agreement, did not violate section 720.401. We cannot agree with the court’s conclusion.

The only reasonable conclusion to be drawn from the omission of the assessment amount and the time period to be covered is that the disclosure summary itself constitutes a violation of section 720.401. The meaning of each word as it was written in the statute is plain, obvious, and does not contemplate resort to other contractual documents for any determination. Neither is this Court prepared or required to carve out any exceptions to it. The legislature passed the current statute, which now calls for greater specificity in the assessment amount and applicable time period, with legitimate legislative objectives. We are without power to construe an unambiguous statute in a way that would modify the express terms of the statute or its reasonable and obvious obligations. See Turnberry Investments, 48 So.3d at 182. See also Metropolitan Dade County v. Milton, 707 So.2d 913, 915 (Fla. 3d DCA 1998).

The seller further argues that it could not provide an exact amount of rent or land use fees, consistent with the requirements of section 720.401(l)(a)(6), because there was “no obligation to pay rent or land use fees for recreational or other commonly used facilities at the time of the [agreement].” This is of no consequence because the statute does not excuse a seller from its obligation to state the current assessment amount and the time period with specificity.

Thus, the seller’s failure to provide the buyers with the information consistent with the requirements of section 720.401 renders the agreement voidable by the buyers. We therefore reverse.

Reversed.

      . Paragraph 7.4 of the Community Addendum also references section 689.26, Florida Statutes (2003), and its requirements in detail. This is the statute that preceded section 720.401. The seller acknowledged in paragraph 7.4 that its failure to provide the disclosure summary as section 689.26 required would render the contract voidable by the buyers. The seller nonetheless did not comply with the statutory requirements.


author: PALMER, J.

text:
    BLACK DIAMOND PROPERTIES, INC., Black Diamond Realty, Inc., and Stanley C. Olsen, Appellants, v. Charles S. HAINES, Kathy Haines, Richard O. Conboy, Jackson Randolph, Larry Laukka, Angelo Masut, Brenda Masut and Tom Howell, Appellees.
    No. 5D11-589.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2012.
    Rehearing Denied July 2, 2012.
    Edward A. Marod, of Gunster Yoakley and Stewart, P.A., West Palm Beach, and Anne S. Mason of Mason Law, P.L., Clear-water, for Appellant.
    Steve A. Rothenburg, Ocala, and John C. Bell, Jr., Bell & Brigham, Augusta, Georgia, for Appellee.
   PALMER, J.

Appellants, Black Diamond Properties, Inc., Black Diamond Realty, Inc., and Stanley C. Olsen appeal an order awarding statutory prevailing-party attorney’s fees and costs to appellees, Charles and Kathy Haines, Angelo and Brenda Masut, Tom Howell, and Richard Conboy. See § 817.41(6), Fla. Stat. (1997). The award was based on the previously entered final judgment finding that the appellees had sustained damages as a result of the appellants’ misleading advertising, as prohibited by section 817.41(2). While this appeal was pending, we reversed and remanded the final judgment entered in favor of the appellees. Black Diamond Properties, Inc. v. Haines, 69 So.3d 1090 (Fla. 5th DCA 2011). As such, the award of attorney’s fees and costs must be reversed because the appellees are no longer prevailing parties. See Montgomery v. English, 902 So.2d 836 (Fla. 5th DCA 2005); F.J.W. Enters. Inc. v. Johnson, 749 So.2d 573 (Fla. 5th DCA 2000); Ass’n Fin. Servs., Inc. v. Lewis, 551 So.2d 590 (Fla. 5th DCA 1989).

REVERSED and REMANDED.

SAWAYA and MONACO, JJ., concur.


author: POLEN, J.

text:
    Jane DOE, a minor child, by and through Jane DOE’S MOTHER and Jane Doe’s Father, as her Parents and Natural Guardians, and Jane Doe’s Mother and Jane Doe’s Father, individually, Appellants, v. Blake F. SINROD and Palm Beach County School Board a/k/a School District of Palm Beach County, Appellees.
    No. 4D11-557.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Rehearing Denied July 11, 2012.

      Mare A. Wites of Wites & Kapetan, P.A., Lighthouse Point, for appellants.
    Shannon P. McKenna of Conroy, Sim-berg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appel-lees.
   POLEN, J.

Appellant, Jane Doe, appeals the trial court’s final order of dismissal with prejudice granting appellee’s, Palm Beach County School Board (“School Board”), motion to dismiss her amended complaint. We hold that the trial court did not err in dismissing with prejudice Doe’s claims against the School Board because she failed to comply with the time limitations placed on her asserted claims and did not satisfy the pre-suit notice requirements. We affirm.

On September 13, 2010, appellant filed a complaint against the Palm Beach County School Board and School Board employee, Blake Sinrod. On October 25, 2010, an amended complaint against the same was filed. The amended complaint alleged that Sinrod, a second-grade teacher in Palm Beach County, sexually assaulted and molested his student, seven-year-old Jane Doe, while in his role as a School Board employee. The incident occurred in May of 2003. Doe’s father reported the incident to the school’s vice principal the next day and the administrator allegedly did not believe Doe and refused to investigate the allegations. The vice principal also would not transfer Doe to another class and threatened to call the truancy officer if Doe did not attend the class.

In her amended complaint, Doe claimed that the vice principal of the school acted with deliberate indifference in failing and refusing to investigate the complaint and that her parents were left with no alternative other than to remove her from the school and relocate to another school district. As a result, Doe alleged emotional injury. Doe argued that she complied with the notice requirements of section 768.28, Florida Statutes, by noticing the School Board and the Florida Department of Financial Services of their claims on January 29, 2010. The claims against Sin-rod were assault, battery, and intentional infliction of emotional distress. The claims against appellee, the School Board were a violation of Title IX, 20 U.S.C. §§ 1681, et seq., negligent supervision, negligent retention, and negligent infliction of emotional distress.

Both the School Board and Sinrod filed motions to dismiss the amended complaint. Relevant to this appeal is the School Board’s motion to dismiss. The School Board moved to dismiss based on the statute of limitations time-barring the claims. Specifically, the School Board claimed that Doe failed to comply with the notice requirements of section 768.28(6)(a), Florida Statutes. According to the School Board’s motion to dismiss, a four-year statute of limitations existed for the action. Therefore, Doe must have filed her complaint by May of 2007. However, Doe did not file her complaint until September of 2010, over three years after the four-year period expired. Additionally, the School Board alleged that Doe’s claims were barred for failure to comply with notice requirements under section 768.28(6)(a). The statute requires those bringing claims against the state or a state agency to provide notice in writing to the agency and Florida Department of Financial Services within three years after the claim accrued. Doe did not place the School Board on notice until

January 2010. After a hearing on the matter, the trial court entered an order granting the School Board’s motion to dismiss Doe’s amended complaint with prejudice. This appeal followed.

Appellate courts review a trial court order granting a motion to dismiss with prejudice using the de novo standard of review. Garnac Grain Co. v. Mejia, 962 So.2d 408, 410 (Fla. 4th DCA 2007).

Doe argues that her claims are not time-barred, pursuant to section 95.11(7), Florida Statutes, because her claims are based on the abuse of a minor. The School Board contends that section 768.28(14), Florida Statutes, governs whether Doe’s claims are time-barred, not section 95.11(7). Doe relies on section 95.11(7), limitations for intentional torts based on abuse, to support her argument that she had seven years from the time she reached the age of majority, rather than four years from the accrual of the cause of action, to file her complaint.

Section 95.11(7), titled “For Intentional Torts Based on Abuse,” provides that:

An action founded on alleged abuse ... may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later.

§ 95.11(7), Fla. Stat. (2011).

Section 768.28(14) provides that:

Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues....

§ 768.28(14), Fla. Stat. (2011).

The two statutes argued are applied to two different types of torts. Section 95.11(7) applies to intentional torts committed by an individual, while section 768.28 applies to negligent torts committed by the state or one of its agencies. Here, the causes of action against appellee, the School Board, were all in negligence — supervision, retention, and negligent infliction of emotional distress. The causes of action against Sinrod, who is not a party to this appeal, were intentional torts. Doe argues that because she was abused under the definition provided by section 39.01(2), Florida Statutes, section 95.11(7) governs her claims. The School Board contends that a state agency can only be sued to the extent that sovereign immunity is waived, as noted in section 768.28. We agree with the position of the School Board.

In Rodriguez v. Favalora, 11 So.Bd 393 (Fla. 3d DCA 2009), the court held that a minor child who has been abused should be protected from having his or her claim dismissed due to failure to bring the cause of action within a four-year period. Id. at 397. Our supreme court has explained that a child may suffer from shock or experience emotions which may cause him or her to suppress the abuse from his or her mind. Hearndon v. Graham, 767 So.2d 1179, 1186 (Fla.2000). While this is not the ease here, as Doe immediately reported the abuse to her parents and the school, Heamdon provides that a child should not, as a result of this reaction to abuse, be denied the opportunity to bring a claim against his or her attacker. See id. These cases are distinguished from the instant case because the former victims did not seek to bring claims against state agencies and, instead, sought to bring claims against private individuals.

Section 768.28(14) sets forth limitations for negligent tort claims involving state agencies, while section 95.011 provides that a civil action is barred unless it is brought within the time provided in chapter 95, unless a different time is stated elsewhere in the Florida Statutes. § 768.28(14); § 95.011, Fla. Stat. (2011). Section 768.28 provides a four-year statute of limitations, whereas section 95.11 gives the minor victim of intentional abuse a longer period to bring a claim. According to the language in section 95.011, time limitations set forth under chapter 95 are secondary to those listed under other chapters. As such, the time limitation under chapter 768 should control. Additionally, section 768.28(14) bars negligence claims against state agencies, unless the action is filed within four years from the accrual of the claim. § 768.28(14). Section 768.28(14) makes two exceptions, neither of which have any effect on relevant sections of chapter 95.

Public Health Trust of Dade County v. Menendez, 584 So.2d 567 (Fla.1991), further explains that when “a governmental entity subject to the waiver of sovereign immunity” is involved, chapter 768, rather than chapter 95, governs for purposes of that entity. Id. at 569. The Supreme Court of Florida held in Board of Public Instruction of Broward County v. State ex rel. Allen, 219 So.2d 430 (Fla. 1969), that “[a] county school board is part of the state system of public education ... and has been held to be a state agency for the purpose of immunity from suit.” Id. at 432. Therefore, the School Board is a governmental entity, subject to the waiver of sovereign immunity. As such, the time limitations in section 768.28 are applicable, rather than those set forth under section 95.11.

Doe also argues that the tolling provisions under section 95.11(7), Florida Statutes, should apply to the notice provisions set forth under section 768.28(6)(a). The School Board explains that the heading of section 95.11(7), For “Intentional Torts Based on Abuse,” proves the inapplicability of the statute because none of the claims against the School Board are intentional torts. Therefore, the School Board contends that failure to notify it of the claim within three years from the time of the act warranted dismissal of her claim with prejudice.

Section 768.28(6)(a), Florida Statutes, requires those bringing claims against the state or a state agency to provide notice in writing to the agency or Florida Department of Financial Services, depending on which agency the claim is brought against, within three years after the claim accrued. § 768.28(6)(a), Fla. Stat. (2011). Doe did not place the School Board on notice until January 2010, almost seven years after the alleged act, and the Department of Financial Services was not notified at all before the claims were filed.

As previously discussed, the claims against the School Board are solely based on negligence, not intentional torts. Doe seeks to apply an intentional torts statute to toll the time for when she must have submitted the sexual assault claims. While the claims against Sinrod do fit under the category of intentional torts, those filed against the School Board are squarely within the category of negligence. As a result, section 95.11(7) is inapplicable as to Doe’s claims against the School Board and, accordingly, cannot be used to toll the times in which she must have given notice to the School Board of her claims and in which she must have filed, those claims.

Chapter 95 expressly states that its time limitations are secondary to other times prescribed in the Florida Statutes. Therefore, the time restraints set forth in chapter 768 take precedence. We hold that Doe did not comply with the requirements set forth under section 768.28(6)(a) when she did not notify the School Board or the Department of Financial Services of her claims within the statutory three-year period.

We note that if the legislature intended to extend chapters 95 and 768 as to both individuals and governmental entities under the theory of respondeat superior, it should have expressly provided as such. Instead, chapter 95 expressly bars civil actions against governmental entities which are not brought within the time period prescribed in the Florida Statutes, while chapter 768 expressly requires negligence claims against the state or one of its agencies to be commenced within four years of the time the action accrues. The interplay between the two statutes evidences a precedential effect of the time limitations in chapter 768, as noted by the language in section 95.011, which provides that civil actions are “barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere.” § 95.011, Fla. Stat.

Additionally, Doe brought a Title IX claim against the School Board and argued that the claim was not time-barred, even if she could no longer bring her state claim. “[A] Title IX claim for damages is most closely analogous to a common law action for personal injury; therefore, the statute of limitations for personal injury actions controls.” M.H.D. v. Westminster Schools, 172 F.3d 797, 803 (11th Cir.1999). “[W]here state law provides multiple statutes of limitations for personal injury actions, courts ... should borrow the general or residual statute for personal injury actions.” Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). As Owens describes, several states have multiple statutes governing intentional torts, presenting the question of which statute is the proper one on which to rely for a time limitation. See id. at 243. Owens solves this confusion by providing that a general or residual statute is a better option because “each State would have no more than one.” Id. at 248. In an effort to eliminate the confusion discussed in Owens, we rely on 95.11(3), Florida Statutes, a general statute of limitations statute, rather than one of the several which govern intentional torts. Section 95.11(3) prescribes four-year time periods for negligence under subsection (a) and “assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort,” unless expressly excluded, under subsection (o). § 95.11(3), Fla. Stat. (2011).

Based on this statute, Doe did not file her Title IX claim within the prescribed four-year statutory period and, therefore, her claim was properly dismissed.

Accordingly, we affirm the trial court’s order and hold that the trial court did not err in dismissing with prejudice Doe’s claims against the School Board because she did not comply with the applicable time limitations, nor did she satisfy the pre-suit notice requirements. We take no position on the remaining claims against Sinrod, which were intentional torts against an individual person.

Affirmed.

HAZOURI and LEVINE, JJ., concur.

      . Section 768.28, Florida Statutes, governs negligent torts and, specifically, the waiver of sovereign immunity in tort actions, recovery limits, limitation on attorney fees, statute of limitations, exclusions, indemnification, and risk management programs. § 768.28, Fla. Stat. (2011).

      . Under section 39.01, Florida Statutes,
      "Abuse” means any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.
      § 39.01(2), Fla. Stat. (2011).


text:
    Israel BROIDE and Weston Steakhouse, LLC, Appellants, v. Carlos ALVAREZ, individually, Brasero’s Restaurants International, LLC, a Florida Limited Liability Company, and Omar Malpica, individually, Appellees.
    No. 4D09-4991.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Scott M. Behren of the Behren Law Firm, Weston, for appellants.
    No brief filed on behalf of appellees.
   PER CURIAM.

We reverse the final judgment dated November 4, 2009, awarding damages in the amount of $100,000 plus interest to Carlos Alvarez and Brasero’s Restaurants International, LLC (the “plaintiffs”), because the promissory note upon which the judgment is based is unenforceable for lack of consideration. We affirm all other issues raised on appeal without further discussion.

The parties signed both a written “Operational and Administrative Agreement” (the “Operational Agreement”) and a Promissory Note (the “Note”) on December 2, 2004. In paragraph five of their complaint, the plaintiffs specifically alleged that the defendants had executed the Note “[i]n consideration” of the Operational Agreement. Thus, it is undisputed that the Operational Agreement was the sole consideration for the Note. Subsequently, pursuant to a counterclaim for declaratory judgment, the trial court declared that the Operational Agreement was void due to a lack of mutual assent. Neither party disputes this conclusion. Because the Operational Agreement is invalid and because that agreement was the sole consideration for the Note, the Note is unenforceable for lack of consideration. See § 673.3031(2), Fla. Stat. (2004) (“The drawer or maker of an instrument has a defense if the instrument is issued without consideration.”); § 673.3051(l)(b), Fla. Stat. (2004) (“[T]he right to enforce the obligation of a party to pay an instrument is subject to ... [a] defense of the obligor that would be available if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract....”). Accordingly, the trial court erred in entering a final summary judgment in the plaintiffs’ favor on their claim for breach of the Note.

Reversed and remanded for further proceedings consistent with this opinion.

TAYLOR, CIKLIN and GERBER, JJ., concur.


author: CIKLIN, J.

text:
    Lawrence GILBERT, Appellant, v. Dany KATZ-GILBERT, Appellee.
    No. 4D10-4556.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Rehearing Denied July 13, 2012.
    Troy W. Klein, West Palm Beach, for appellant.
    Sophia Blair and Robin Bresky of the Law Offices of Robin Bresky, Boca Raton, for appellee.
   CIKLIN, J.

Lawrence Gilbert, the former husband, appeals the trial court’s amended final judgment of dissolution of marriage. The former husband contends, among other things, that the trial court erred in allocating a disproportionate share of the marital liabilities to him without including factual findings to explain or justify the unequal distribution. We agree and reverse the equitable distribution portion of the amended final judgment and remand for reconsideration. We affirm all other aspects of the amended final judgment without comment.

A review of the equitable distribution provisions of the amended final judgment shows that the trial court allocated over $200,000 in liabilities, mostly credit card debt, to the former husband and less than $2500 to the former wife. Pursuant to section 61.075(3), Florida Statutes (2010), when a trial court makes an unequal distribution of the marital assets and liabilities in a contested dissolution action, the trial court must include “factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in” section 61.075(1) to explain or justify the disproportionate equitable distribution. Failure to include these findings in the final judgment constitutes reversible error. See, e.g., Lule v. Lule, 60 So.3d 567, 568 (Fla. 4th DCA 2011); Jalileyan v. Jalileyan, 4 So.3d 1289 (Fla. 4th DCA 2009). On remand, the trial court must reallocate the marital liabilities or make factual findings necessary to support an unequal distribution. Montalvo v. Montalvo, 949 So.2d 350, 351 (Fla. 4th DCA 2007).

We find the other issues raised by the former husband to be without merit and áffirm in all other respects the amended final judgment of dissolution.

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

TAYLOR and GERBER, JJ., concur.


text:
    David LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2445.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Rehearing Denied July 13, 2012.

      Carol Stafford Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Davis v. State, 52 So.3d 697 (Fla. 4th DCA 2010); Williams v. State, 919 So.2d 645 (Fla. 4th DCA 2006).

POLEN, GROSS and LEVINE, JJ., concur.


author: JACOBUS, J.

text:
    PUBLIX SUPER MARKETS, INC., Appellant, v. William WORLEY and Rhonda Worley, Appellees.
    No. 5D11-2595.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.
    Rehearing Denied June 26, 2012.
    Edward G. Guedes of Weiss Serota Helfman, Pastoriza, Cole & Boniske, P.L., Coral Gables, for Appellant.
    Mark A. Cornelius of Law Office of Mark A. Cornelius, P.A., Maitland, for Ap-pellees.
   JACOBUS, J.

Appellant, Publix Super Market, Inc., appeals the trial court’s order granting Appellee, William Worley, a new trial after Worley rejected an additur of $20,000 for past non-economic damages. Publix contends that the trial court abused its discretion in granting Worley an additur and, by extension, a new trial on damages because the evidence adduced at trial supported the jury’s decision not to award past non-economic damages. We disagree with this contention and affirm the trial court’s order granting a new trial.

This case arises out of a slip-and-fall accident at Publix in which Worley hit his head on the handle of the door to a refrigerated case. The door handle cut Worley’s forehead and required nine sutures to close the wound. The jury found that Publix was 100% at fault and awarded Worley $6,079.19 in past medical expenses but gave him nothing for future medical expenses, past or future lost wages, or past or future non-economic damages. The trial court determined that Worley should have received something for past non-economic damages in light of the jury finding that he was entitled to past medical expenses and that Publix was 100% at fault. The court awarded an additur of $20,000 or alternatively a new trial. Worley elected a new trial.

We find that there is no abuse of discretion on the part of the trial court in its findings. See Beauvais v. Edell, 760 So.2d 262, 264-65 (Fla. 4th DCA 2000) (holding that a motion directed to the inadequacy of a verdict awarding past medical expenses but no past non-economic damages is left to the broad discretion of the trial judge). The order of the trial court is affirmed and the matter is remanded for a new trial on past non-economic damages.

AFFIRMED and REMANDED.

LAWSON and COHEN, JJ., concur.


text:
    Joanna M. BLYTHE and James T. Blythe, Jr., Petitioners, v. ATLAS INDUSTRIAL ENTERPRISES, INC., Respondent.
    No. 5D12-465.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.
    Rehearing Denied June 29, 2012.
    Kathryn D. Weston of Cobb Cole, Day-tona Beach, for Petitioners.
    No Appearance for Respondent.
   PER CURIAM.

Petitioners seek certiorari review of an order requiring them to post a bond in the amount of $747,143 “so long as the lis pendens filed by and on their behalf remains valid and enforceable as to Respondent’s properties identified therein,” as well as a subsequent order discharging the lis pendens as to one of the parcels at issue.

We conclude that the trial court departed from the essential requirements of law by failing to hold an evidentiary hearing prior to entering the aforesaid orders. See Suarez v. KMD Constr., Inc., 965 So.2d 184 (Fla. 5th DCA 2007) (trial court required to control or discharge notice of lis pendens by considering at evidentiary hearing whether lis pendens should remain in place and, if so, amount of bond required); Licea v. Anllo, 691 So.2d 29 (Fla. 3d DCA 1997) (before setting amounts of lis pendens bond, trial court is to afford parties evidentiary hearing on issues of whether property-holder would likely incur damage if lis pendens was unjustified, and, if so, amount of such loss); see also Mitchell v. Metro. at Lake Eola, LLC, 947 So.2d 1263 (Fla. 5th DCA 2007) (burden is on party seeking lis pendens bond to demonstrate by evidence amount of potential damage it might suffer if later determined notice of lis pendens was unjustified).

PETITION GRANTED; ORDERS DATED JANUARY 6, 2012 AND JANUARY 13, 2012 QUASHED.

ORFINGER, C.J., MONACO and EVANDER, JJ., concur.