author: GRIFFIN, J.

text:
    James JOSEPH, Appellant, v. UNIVERSITY BEHAVIORAL LLC, et al., Appellee.
    No. 5D10-1128.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2011.

      Annabel C. Majewski, of Wasson & Associates, Chartered, Miami, for Appellant.
    Michael R. D’Lugo, of Wicker Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee.
   GRIFFIN, J.

James Joseph [“Joseph”] appeals the summary final judgment entered in favor of University Behavioral Center [“UBC”] after the trial court determined that Joseph’s negligence claim against UBC was a claim for medical malpractice, but that Joseph had failed to comply with the presuit requirements of Florida’s Medical Malpractice Act, and that the two-year statute of limitations for a medical malpractice claim had expired before he filed suit. Joseph contends that his negligence claim was a claim of ordinary negligence, not medical malpractice, making the presuit requirements of the medical malpractice statute and the two-year statute of limitations inapplicable to his case. We agree and reverse.

UBC is a psychiatric facility. Joseph was fourteen years old when he was confined to UBC for one year, by court order, after he was charged with arson, making a bomb threat, and destruction of school property. He was diagnosed with bipolar disorder, schizoaffective disorder, manic depression, and multiple personality disorder. L.F. was also admitted to UBC a few months after Joseph.

Joseph and L.F. participated in a tackle football game at UBC. Joseph tackled L.F., who responded by throwing punches at Joseph. UBC personnel separated the boys, but L.F. subsequently continued to bully Joseph by making threats and calling Joseph names. Joseph asked UBC to separate him from L.F. In his deposition, Joseph testified that UBC staff refused his request.

In the spring of 2004, Joseph and L.F. were in the cafeteria lunch line. Joseph was talking to a friend, who was also in the lunch line, about football and he recounted how he had tackled L.F. L.F. overheard the discussion, became angry and punched Joseph in the left eye. As a result, Joseph suffered a detached retina, eventually causing the loss of his left eye.

Joseph filed a negligence action against UBC and L.F. The second amended complaint asserted the following general allegations:

4. That in or about the third week of May, 2004 or possibly as early as the second week of March, 2004, [Joseph] was a resident of [UBC], and at all times material was under the care, control and supervision of said facility, its agents, servants and employees.
6. That in the weeks leading up to and during the incident complained of, [Joseph] endured periods of being bullied, taunted and suffered abuse by [L.F.] at said facility. That [UBC] knew or should have known about the abuse and should have taken action to correct it.
7. That the abuse toward [Joseph], continued and culminated in a situation in which [Joseph] was physically battered and assaulted by [L.F.], who with a closed fist struck [Joseph] in the side of [Joseph’s] head, [sic] causing [Joseph] a very serious medical injury. That the incident in which [L.F.] physically assaulted [Joseph] took place in the facilities [sic] cafeteria during a time the residents were supposed to be under the control and supervision of the staff and teachers of said facility.

The allegations of negligence in the second amended complaint were as follows:

12. That at all times material, [UBC], in operating a private psychiatric facility with young males as residents, had a legal duty to at all times supervise and control the behavior of those residents under their charge.
13. That [UBC] had an affirmative duty to provide adequate security to reduce the risk of one resident assaulting another.
14. That [UBC] had an affirmative duty to ensure its staff was properly trained so as to recognize and react to emergency medical situations and conditions.
15. That [UBC] knew or should have known from prior events that [Joseph] was the victim of verbal and or physical abuse, and therefore should have been on notice of [Joseph] being the potential victim of bullying and/or a physical assault. Despite having this knowledge or despite the fact it should have had this knowledge, [UBC] was negligent in failing to protect [Joseph] or in failing to correct the situation leading to the physical assault on [Joseph].
16. Regardless, [UBC] was also negligent for failing to provide adequate supervision and for failing to provide adequate security at the time of the incident complained of, both duties imposed on [UBC] by operation of law.
17. [UBC] was further negligent in its failure to ensure [Joseph] was provided with timely and adequate medical treatment. The failure to provide such medical care contributed to or directly caused the loss of [Joseph’s] sight in his left eye.
18. As a consequence of the lack of adequate supervision and/or security and as a consequence of the failure of [UBC] to control its young male residents, [Joseph] was assaulted and battered as indicated above when he was struck by [L.F.], all while the residents were on [UBC’s] property and under the control and supervision (or lack thereof) of [UBC], its agents, servants and employees.
19. At the time and place mentioned above, [UBC], directly and through its agents and employees was negligent in the following manners although not exclusively:
a)In carelessly and negligently failing to properly, adequately or reasonably control, supervise and/or protect the residents in its charge.
b) In carelessly and negligently permitting the minor [L.F.] to abuse [Joseph], both verbally and physically.
c) In carelessly and negligently failing to correct the situation before it culminated in the physical assault as described above.
d) In the failure of [UBC], its employees and agents to act as reasonable and prudent people by obtaining timely and adequate medical treatment for [Joseph’s] medical emergency.
e) In the failure of [UBC] to ensure its employees and agents were properly trained to properly supervise and control its young charges.
f) In the failure of [UBC] to ensure its employees and agents were properly trained with regard to providing emergency medical care or recognizing the need for emergency medical care.
g) In the failure of [UBC], its employees and agents to act as reasonable and prudent people would act under the same or similar circumstances, particularly in ignoring [Joseph’s] protestations after his injury that he was blind or had distorted vision in his left eye.
h) In the failure of [UBC] to properly train and instruct its agents and employees to perform their jobs in a safe and reasonable manner so as to recognize and prevent bullying of students and so as to ensure the availability of emergency medical treatment.
i) Any and all of their acts of negligence which may be shown at the trial of this matter.

UBC answered the second amended complaint and asserted the following affirmative defense: “This action was brought more than two years from the time that [Joseph] knew or should have known of the injury or knowledge that there was a reasonable possibility that the injury was caused by medical negligence, and therefore is barred pursuant to Florida Statutes § 95.11.” UBC also alleged: “[UBC] asserts that this Court lacks subject matter jurisdiction over this action by [Joseph’s] failure to comply with the conditions precedent prior to the filing of this action pursuant to Florida Statutes § 766.106 and § 766.203.” UBC then moved for summary judgment on the grounds set forth in their affirmative defenses. The trial court rendered a summary final judgment in UBC’s favor.

Section 766.106 imposes presuit requirements on a claim for medical negligence or malpractice. Such a claim is one “arising out of the rendering of, or the failure to render, medical care or services.” Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005) (quoting Burke v. Snyder, 899 So.2d 336, 338 (Fla. 4th DCA 2005); § 766.106(1)(a), Fla. Stat. (2008). Claims of simple negligence or intentional torts which do not involve the provision of medical care or services do not require compliance with chapter 766 presuit requirements. See Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000) (patient’s negligence claim arising from slip and fall between her hospital bed and bathroom was not cause of action for medical negligence subject to presuit requirements); Garcia v. Psychiatric Insts. of Am., Inc., 693 So.2d 66 (Fla. 5th DCA 1997). The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766.106 is whether a defendant is liable under the medical negligence standard of care set forth in section 766.102(1). The fact that a wrongful act occurs in a medical setting does not necessarily mean that it involves medical malpractice. Robinson v. West Fla. Reg’l Med. Ctr., 675 So.2d 226 (Fla. 1st DCA 1996); Durden v. Am. Hosp. Supply Corp., 375 So.2d 1096 (Fla. 3d DCA (1979) (complaint grounded in general negligence after finding no medical diagnosis, treatment, or care rendered by blood collection agency to patient who sold his blood). The wrongful act must be directly related to the improper application of medical services and the use of professional judgment or skill. Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995) (general negligence claim allowed where process of complying with statutory requirements did not involve medical skill or judgment). A court must, on a case-by-case basis, look to the allegations in the complaint when determining whether a suit raises an issue of ordinary negligence or medical malpractice. Southern Baptist Hosp. of Fla., Inc. v. Ashe, 948 So.2d 889, 890 (Fla. 1st DCA 2007).

Similarly, the statute of limitations applicable to medical malpractice contained in section 95.11(4)(b), Florida Statutes (2011), provides:

(b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care....

(emphasis added). Thus, under the statute, the inquiry is twofold: (1) whether the action arose out of “medical ... diagnosis, treatment or care,” and (2) whether such diagnosis, treatment or care was rendered by a “provider of health care.” Silva v. Sw. Fla. Blood Bank, Inc., 601 So.2d 1184, 1186 (Fla.1992). The supreme court previously has held that the terms “diagnosis,” “treatment,” and “care” are unambiguous. Specifically, the court found:

In ordinary, common parlance, the average person would understand “diagnosis, treatment, or care” to mean ascertaining a patient’s medical condition through examination and testing, prescribing and administering a course of action to effect a cure, and meeting the patient’s daily needs during the illness.

Id. at 1187.

In Mobley, a patient sued a dentist after one of his dental assistants accidentally struck the patient in the face causing injuries. The patient sued for simple negligence. The dentist raised the affirmative defense that the patient failed to comply with the presuit requirements of section 766.106. The trial court granted the dentist’s motion for summary judgment, ruling that the case was a medical malpractice case because the patient was injured during the course of treatment. The Fourth District, however, reversed, holding that the patient’s claim that she was negligently banged in the face with a piece of equipment involves a simple negligence claim independent of the standard of care imposed on a health care provider. 915 So.2d at 218. Deciding how to unstick the arm of the x-ray machine was not a medical service requiring the use of a medical professional’s judgment or skill. In rejecting the argument that chapter 766 applied merely because the accident occurred after the patient was positioned in the dental chair for treatment, the court held that if an intentional tort or negligence does not arise out of the rendering of medical services, chapter 766 does not apply even if an injury occurs after the delivery of medical services has commenced. Id. at 219.

Likewise, in Tenet St. Mary’s, Inc. v. Serratore, 869 So.2d 729 (Fla. 4th DCA 2004), a patient was injured after receiving dialysis treatment at St. Mary’s. The patient was sitting in a reclining chair after completing dialysis treatment and a St. Mary’s employee attempted to assist her by returning the chair to its upright position so that the patient could stand up. The employee attempted to kick the footrest of the chair to return the chair to the upright position, but instead accidentally kicked the patient’s right foot. The injury did not heal and eventually required a below-the-knee amputation. St. Mary’s filed a motion to dismiss claiming that the patient did not comply with the chapter 766 presuit requirements. St. Mary’s argued that even though the patient was alleging simple negligence, the patient was required to file her complaint as a medical malpractice case because the injury occurred while she was under the care of a hospital employee after receiving dialysis treatment. The Fourth District disagreed, deciding that the allegations of the complaint were not for medical negligence.

Similarly, in Ashe, the First District denied the hospital’s petition for writ of cer-tiorari because the respondent’s cause of action, negligence in the release of respondent’s daughter under the Baker Act, did not sound in medical malpractice, but instead in ordinary negligence. 948 So.2d at 890. The court found that the respondent did not challenge any medical diagnosis or decision that required professional skill or judgment. Id. at 891. Additionally, in Palm Springs General Hospital, Inc. v. Perez, 661 So.2d 1222, 1223 (Fla. 3d DCA 1995), the Third District denied a hospital’s petition for writ of certiorari after ■finding that negligently placing the plaintiff, a patient of the hospital, in a room with another patient, who committed a homosexual attack on the plaintiff was a cause of action for common law negligence, not medical malpractice.

Most analogous to this case is Robinson. There, the appellant was a patient at a psychiatric facility at West Florida Regional Medical Center. While there, she was attacked and injured by another patient. In her complaint, she alleged that the hospital negligently failed to provide adequate security for the safety of its occupants, including herself. She also alleged that the patient who assaulted her had previously assaulted another patient and that this fact was known to the hospital. In her deposition, the appellant indicated that she was alone in her room in a closed ward of the facility at the time of her assault. The hospital moved for summary judgment, asserting that the manner in which mental patients are supervised is necessarily governed by a medical standard of care. The trial court granted summary judgment, applying the two-year statute of limitations for medical malpractice. The First District noted that the complaint was for inadequate security, independent of any medical diagnosis, treatment or care. The court reversed the summary final judgment because the claim did not arise “out of the rendering of medical care by licensed health care providers subject to the prevailing professional standard of care.” 675 So.2d at 228.

In the trial court, UBC essentially adopted the approach that everything that happens in a psychiatric care facility is psychiatric treatment and any negligence is within the realm of medical malpractice. On appeal, UBC concedes, in the abstract, that it could be guilty of ordinary negligence, but UBC contends that the facts of this case would only support a claim of medical negligence. According to UBC, the decision to not separate Joseph and L.F. was a “medical” decision having to do with the “socialization” of Joseph and that it accordingly falls within the category of medical care and treatment for which compliance with the medical malpractice statute and statute of limitations were required. UBC acknowledges, as it must, that the record does not refute the existence of any issue of fact supporting the claims of negligence contained in the complaint. UBC also acknowledges that there is no record evidence that Joseph’s injuries resulted from any decision made in the course of Joseph’s psychiatric treatment. UBC suggests that Joseph only complained in his deposition of the failure of UBC to separate the two boys and that any decision not to separate them was necessarily part of psychiatric care and treatment. First, it is not accurate that Joseph only complained of the failure to separate the two boys and nothing in the deposition comes close to abandonment of the pleaded allegations of ordinary negligence. Nor does the deposition suggest that any psychiatric treatment decisions resulted in his exposure to the injury he suffered. Joseph’s suit is not barred by the failure to comply with the medical malpractice presuit requirements or the two-year statute of limitations. We accordingly reverse and remand for a decision on the merits.

REVERSED.

LAWSON, J., and ZAMBRANO, R.A., Associate Judge, concur.

      . Chapter 766.02 et seq., Florida Statutes (2003).

      . Section 766.102(1), Florida Statutes (2008), states:
      (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William A. KISH, Jr., Appellant, v. Emily J. KISH n/k/a Emily J. Whelan, Appellee.
    No. 5D10-2862.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2011.
    Marcia K. Lippincott of Marcia K. Lip-pincott, P.A., Lake Mary, for Appellant.
    Clifton H. Gorenflo of Gray & Gorenflo, P.A., Sanford, for Appellee.
   PER CURIAM.

William A. Kish, Jr., appeals a final order granting his former wife’s motion to relocate their children to California. We have carefully considered the issues raised, and find no abuse of discretion in the trial court’s decision. However, we agree with Appellant that the trial court should have memorialized the detailed timesharing plan on which the relocation order was premised in the order itself. This plan included a provision for the former husband to have frequent contact with the children via internet video chat, and an agreement that the former wife would bear most of the travel costs for the children to regularly return to Florida to spend time with their father. We also agree that when ordering the former wife to pay half of the fee for the expert who testified at the hearing, the trial court should have set a reasonable deadline for this payment in the order.

Accordingly, we affirm the order on appeal but remand with directions that the trial court formally adopt the timesharing plan by order, and set a deadline for payment of the former wife’s portion of the expert’s fees.

AFFIRMED and REMANDED with Directions.

GRIFFIN, LAWSON, JJ., and ZAMBRANO, R.A., Associate Judge, concur.


author: EVANDER, J.

text:
    Thomas CHILDREE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1510.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2011.
    Thomas Childree, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Thomas Childree appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find only one of the issues raised by Childree to have merit. In his motion, Childree alleged that the trial court had improperly imposed a Prison Releasee Reoffender (PRR) sentence. The trial court erroneously concluded that Childree’s claim was not cognizable in a motion for post-conviction relief. Where, as was alleged in the instant case, a defendant does not qualify for a PRR sentence, the imposition of same constitutes an illegal sentence for which relief may be sought under rule 3.850. See, e.g., Cassista v. State, 57 So.3d 265 (Fla. 5th DCA 2011); Brinson v. State, 851 So.2d 815 (Fla. 2d DCA 2003).

On remand, the trial court shall either attach portions of the record that conclusively refute Childree’s claim or hold an evidentiary hearing on the motion. Cas-sista.

AFFIRM, in part; REVERSE, in part.

PALMER and TORPY, JJ., concur.

      . See § 775.082(9), Fla. Stat. (2009).


text:
    Sebastien J. MOROSE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2068.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2011.
    Sebastien J. Morose, Bushnell, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the judgment and sentence in Case No. 2009-CF-006953, in the Circuit Court in and for Orange County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ORFINGER, C.J., PALMER and COHEN, JJ., concur.


text:
    Henry Percy GREENE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2684.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2011.
    Henry Percy Greene, Lowell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the motion for post-conviction relief in Case No. 05-1987-CF-004152-A in the Circuit Court in and for Brevard County. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, PALMER and COHEN, JJ., concur.


text:
    Misty Janette CUMMINGS a/k/a Misty Croslin, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-242.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2011.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence imposed upon the appellant, Misty Janette Cummings, in all respects except one. The sentencing transcript indicates that the trial court imposed a $15 cost for the alcohol-drug trust fund. On the judgment and sentence form, however, the box for the $151 rape crisis trust fund was checked in error, and the box for the alcohol-drug trust fund is mistakenly left unchecked. Thus, we remand for the trial court to correct the scrivener’s error.

AFFIRMED in part, REVERSED in part, and REMANDED.

PALMER, MONACO and EVANDER, JJ., concur.


text:
    Susan A. MORROW, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4140.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2011.
    Susan A. Morrow, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Pettway v. State, 776 So.2d 930 (Fla.2000).

BENTON, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Maurice BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4950.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2011.
    Maurice Bell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Jermaine TOLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5062.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2011.
    Jermaine Toles, 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.

BENTON, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Dennis T. HUTTO, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3328.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2011.
    Dennis T. Hutto, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Miller v. State, 996 So.2d 954 (Fla. 1st DCA 2008).

BENTON, C.J., VAN NORTWICK, and SWANSON, JJ., concur.


text:
    James JACOBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4894.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2011.
    James Jacobs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Tyler J. GORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1462.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2011.
    Tyler J. Gore, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006).

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


author: LaROSE, Judge.

text:
    In the Interest of G.M., JR., a child. G.M., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D11-1511.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2011.

      Patrick R. Cunningham, Bradenton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee Department of Children & Family Services.
    Laura E. Lawson, Tavares, for Appellee Guardian ad Litem Program.
   LaROSE, Judge.

G.M. appeals the order terminating his parental rights to his son, G.M., Jr. We have jurisdiction. See Fla. R.App. P. 9.146. The trial court found that G.M. failed to complete his case plan tasks and abandoned the child. The Department of Children and Family Services and the Guardian ad Litem Program properly concede that termination was error. We reverse.

“[P]arents have a fundamental liberty interest in the care, custody, and management of their children.” J.R. v. Dep’t of Children & Family Servs., 923 So.2d 1201, 1205 (Fla. 2d DCA 2006) (citing Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). To grant a petition for termination of parental rights, the trial court must find that the Department proved the allegations supporting termination by clear and convincing evidence. E.E.A. v. Dep’t of Children & Family Servs., 846 So.2d 1250, 1251 (Fla. 2d DCA 2003). We review the trial court’s order to determine whether it is clearly erroneous or lacking in evidentiary support. See R.C. v. Dep’t of Children & Family Servs., 33 So.3d 710, 714 (Fla. 2d DCA 2010). In this case, the evidence does not support the trial court’s ruling.

Failure to Comply with Case Plan

“Where a court is terminating parental rights based on a parent’s failure to comply with a case plan or a performance agreement, it is axiomatic that the parent must have the substantial ability to comply with the plan or agreement.” Hutson v. State, 687 So.2d 924, 925 (Fla. 2d DCA 1997). G.M. argues that termination is inappropriate where “the failure to substantially comply with the case plan was due ... to the failure of the department to make reasonable efforts to reunify the parent and child.” See § 39.806(1)(e)(1), Fla. Stat. (2010). G.M. is incarcerated and scheduled for release in early 2012.

In W.L. v. Dep’t of Children & Family Servs., 15 So.3d 866, 868 (Fla. 2d DCA 2009), the trial court terminated the father’s parental rights under section 39.806(l)(e)(l), Florida Statutes (2007), finding that the father failed to comply with the terms of his case plan. Nothing in the record showed the father was ever served with a copy of his case plan. W.L., 15 So.3d at 868. The line designated for the father’s signature was left blank, and the Department failed to explain the circumstances concerning the father’s non-participation and the efforts made to secure his participation. Id. Additionally in W.L., the Department failed to assist the father with completing the case plan while he was incarcerated. Id. The case managers made no concerted effort to visit the father to review the terms of the case plan and admitted that they delayed sending information to him because they believed that he would not receive the paperwork before his release. Id. The Department ignored the father’s calls, letters, and visits to inquire about his case plan. Id. We reversed, holding that the Department failed to demonstrate a reasonable effort to reunify the father with his child. Id. at 869; see also C.C. v. Dep’t of Children & Family Servs., 854 So.2d 720, 721 (Fla. 2d DCA 2003).

Similarly, G.M. is incarcerated and has been throughout the duration of the case. The Department failed to communicate G.M.’s ease plan to him. The seven case managers assigned to his case made no attempt to confer with him, nor did they send him a copy of his case plan. The line designating G.M.’s signature on the plan was blank. The Department ignored G.M.’s written requests for assistance. Despite the Department’s failure to assist him, G.M. took steps to improve himself. He sought transfer to another facility in order to participate in a parenting class and other programs. It is clear that G.M. did not have the ability to comply with his case because of his incarceration and the Department’s failure to assist him.

Abandonment

The trial court also determined that G.M. abandoned the child because he failed to support and communicate with the child. See § 39.806(l)(b). Section 39.806(l)(e)(l) provides that a parent’s failure to complete a case plan within nine months after an adjudication of the child as dependent is evidence of abandonment, abuse, or neglect. Section 39.01(1) provides that “[t]he incarceration of a parent ... may support a finding of abandonment.” Incarceration, however, does not constitute abandonment as a matter of law. Rather, it is a factor for consideration. T.H. v. Dep’t of Children & Family Servs., 979 So.2d 1075, 1080 (Fla. 2d DCA 2008). “[T]he parent’s efforts, or lack thereof, to assume parental duties while incarcerated must be considered in light of the limited opportunities to assume those duties while in prison.” Id. at 1080 (citing Wirsing v. Dep’t of Health & Rehabilitative Servs., 498 So.2d 946, 948 (Fla.1986)). The record supports G.M.’s argument that he communicated with his child as he best could while incarcerated.

J.R. v. Department of Children and Family Services, 9 So.3d 707 (Fla. 2d DCA 2009), addressed similar facts. The father was incarcerated. Id. at 708. During his incarceration, the father wrote letters to the child. Id. He communicated with his child as soon as he was informed of dependency proceedings. Id. Unfortunately, he was not given a case plan and never had the opportunity to show that he intended to assume parental responsibilities. Id. We reversed and held that the father did not abandon his child. Id.

Here, G.M. wrote to the mother and foster caregiver inquiring about the child’s welfare. He sent photographs of himself for the child. G.M. inquired through the Department as to his son’s progress and status but received no response. When the Department did send three letters to G.M. in reference to the mother’s case plan tasks, G.M. responded to the letters, included pictures of himself, and sought clarification. He transferred to a facility where he completed a parenting class. G.M. established a communication link with the child. As in J.R., 9 So.3d at 709, termination of his parental rights was improper. Although we reverse, we note that the child remains dependent. We remand to the trial court for further proceedings.

Reversed and remanded.

CRENSHAW and BLACK, JJ„ Concur.


author: THOMAS, J. PADOVANO, J.,

text:
    Jared Joseph KELLER, Appellant, v. STATE of Florida, Appellee. Dustin L. Burns, Appellant, v. State of Florida, Appellee.
    Nos. 1D10-4582, 1D10-4977.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2011.

      Nancy A. Daniels, Public Defender, Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Therese A. Savona and Helene S. Parnés, Assistant Attorneys General, Tallahassee, for Appellee.
   THOMAS, J.

The defendant, Jared Keller, pled nolo contendere to possession of a controlled substance; sale, manufacture or delivery of hydrocodone; possession of drug paraphernalia; and possession of less than 20 grams of cannabis, reserving the right to appeal. Co-defendant Dustin Burns pled nolo contendere to possession of controlled substances, reserving the right to appeal. The court withheld adjudication and placed each of them on three years’ probation. Both defendants appealed the orders, arguing that a motion to suppress evidence should have been granted below. We disagree, and affirm.

The State’s primary witness, a citizen informant, was working at a convenience store in Fort Walton Beach. He testified that he was putting trash in a dumpster at work when he observed a black Scion parked next to the dumpster. He saw the two occupants of the vehicle “doing something in their lap.... Their arms [were] moving. They put their head down, come back up wiping their nose.” He did not actually see any drugs and did not see the two men exchange anything, although they appeared to exchange something underneath the dash, out of his view. These observations occurred in the afternoon, and the two men were in plain view. One of the men in the Scion (later identified as defendant Keller) got out of the Scion and into a red SUV that was parked by a gas pump.

The citizen informant called the sheriffs office, and two deputies pulled into the store’s parking lot about five minutes later. The deputies were looking for the black Scion. The citizen informant told them there had been two men in the Scion, one got out and got in the red SUV, and the driver of the Scion left; the person reportedly doing the drugs was now in the red SUV parked to their left. The citizen informant did not see the driver of the red SUV do anything illegal or suspicious, and he did not tell the deputies anything about the driver. After about 45 seconds to a minute, the deputies turned them attention to the red SUV and watched it legally drive out of the parking lot.

The deputies did not personally see any suspicious behavior other than suspicious “furtive movements” once being followed by the deputies. Based on the citizen informant’s information, rather than the movement, the sheriffs deputies made a traffic stop of the red SUV and encountered the defendants, Keller and Burns. Burns was driving. One of the deputies asked to search the car and was given permission. At that time he asked Keller to get out of the car.

A citizen informant is a person “motivated not by the desire for pecuniary gain but by the desire to further the ends of justice.” Barfield v. State, 396 So.2d 793, 796 (Fla. 1st DCA 1981). The information provided by this witness was entitled to the “high end of the tip-reliability scale.” State v. Evans, 692 So.2d 216, 219 (Fla. 4th DCA 1997). As the Fourth District noted in Evans, both legal scholars and the United States Supreme Court have recognized that citizen witnesses who report suspected criminal activity are more reliable than an informant from the “criminal milieu.” Id. (quoting Wayne LaFave, Search and Seizure, § 3.3 (3d ed. 1996)); see United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Here, the citizen informant observed behavior that provided a founded suspicion of criminal activity to support detaining Appellants, as did the citizen informant in Evans.

After questioning from defense counsel regarding his motivation for calling law enforcement, the citizen informant stated that he had never provided such a tip regarding suspicious activity, other than calling in to report a theft from his workplace. He stated that “nothing’s happened like that before, like — in daylight like that.” When defense counsel attempted to ask if it was “possible” that the two men had a sinus condition, the citizen informant answered no and laughed. During redirect examination, the citizen informant stated that he had seen people bend over and “snort cocaine” and he observed them wiping their noses after seeing that behavior.

The trial court found that the witness “is an average citizen who, by chance, found himself in the position of being a witness to criminal conduct and felt, as a matter of civic duty, the need to report the conduct to law enforcement.” The court relied on Evans when holding that the witness qualified as a citizen informant whose observation was entitled to a high degree of reliability. The trial court further found, citing Baptiste v. State, 995 So.2d 285, 290 (Fla.2008), that the witness’s tip must provide a founded suspicion based on “the existence of a reasonable suspicion that is based upon specific and articulable facts, and the rational inferences that may be drawn from those facts.” (Emphasis added.)

The trial court concluded that the citizen informant relayed reliable information that Appellant was engaged in drug use based on the citizen informant’s “experience of witnessing people perform the same motions while ingesting cocaine, [thus] he associated this behavior with drug use and in fact told the Deputies that the [Scion’s] occupants were involved in drug activity.... Therefore this Court finds that the tip provided by [the citizen informant] was sufficient in content as well as credibility and provided [the deputies] the requisite reasonable suspicion to stop and temporarily detain the Defendant Keller as well as the Defendant Burns.”

This well-reasoned order is supported by the necessary facts and reasonable inferences to withstand Appellant’s challenge on appeal. Under the totality of the circumstances, the officers’ reliance on the citizen informant’s information was reasonable. See Evans, 692 So.2d at 219. As in Evans, this citizen informant provided a founded suspicion of criminal activity based on his own experience and the behavior he observed in daylight — behavior so brazen and suspicious that the citizen was motivated to report the activity to law enforcement to “further justice.”

AFFIRMED.

LEWIS, J., Concurs; PADOVANO, J., Dissenting with Written Opinion.

PADOVANO, J.,

dissenting.

I have no doubt that the citizen informant was reliable but I do not think that the information he provided to the police was sufficient to create a reasonable suspicion. The observation the informant made could have been a sign that the occupants of the vehicle were snorting cocaine but it could also have been an indication of innocent conduct. Because the suspicion of criminal activity did not rise to the threshold of a “reasonable suspicion” as defined in the law of search and seizure, the detention was unlawful and the evidence seized from the automobile should have been suppressed.

The argument for suppression of the evidence in this case is at least as compelling as the one that prevailed in Ford v. State, 783 So.2d 284 (Fla. 2d DCA 2001). In that case, a woman saw a man approach another man in front of a store. The first man put something in his pocket and gave the second cash. The woman assumed she had witnessed a drug deal and reported it to the police. She identified the first man as the person she saw, and the police approached the man and searched him without conducting any further investigation.

Based on these facts, the court held in Ford that the officers lacked a founded suspicion. The court concluded that the information they had received from the citizen informant was not in itself sufficient to establish a reasonable suspicion. As the court explained, a founded suspicion of criminal activity is dependent upon both the informant’s reliability and the content of the information she relays. Courts consider both factors in determining whether the totality of the circumstances justifies a stop.” Ford, 783 So.2d at 285.

Here we have a very similar situation. The observation that the suspect may have been snorting cocaine was not made by a trained police officer but rather by a lay person. The officers conducted no investigation of their own and saw nothing that would independently lead them to conclude that the suspect was engaged in illegal activity. The informant may have been suspicious of the two men he saw in the car, but the information he passed along to the police did not rise to the level of a reasonable suspicion as defined by law.

For these reasons, I respectfully dissent. I would reverse the order with directions to suppress the evidence on the ground that the officers lacked a reasonable suspicion to justify the detention.


text:
    Thomas W. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2879.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2011.
    Matt Shirk, Public Defender, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 17, 2011, the Court has determined that the notice of appeal failed to invoke its jurisdiction in a timely manner. The corrected judgment and sentence was rendered on April 14, 2011. The notice of appeal was filed more than BO days later on May 20, 2011. The lower tribunal’s April 26, 2011, amended order is a republication of the February 14, 2011, Order Granting in Part and Denying in Part the Defendant’s Motion to Correct Illegal Sentence, and therefore, failed to restart the time within which to seek appellate review. See St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971); Churchville v. Ocean Grove R.V. Sales, Inc., 876 So.2d 649 (Fla. 1st DCA 2004); Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So.2d 973 (Fla. 4th DCA 2003). Accordingly, the appeal is dismissed as untimely. The dismissal is without prejudice to the appellant’s right to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

DISMISSED.

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


text:
    STATE of Florida, DEPARTMENT OF the LOTTERY, Petitioner, v. Anna Maria CURCIO, Respondent.
    No. 1D11-3130.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2011.
    Pamela Jo Bondi, Attorney General, and James A. Peters, Special Counsel, Tallahassee, for Petitioner.
    Lawrence G. Walters of Walters Law Group, Altamonte Springs; Howard S. Marks of Burr & Forman, LLP, Winter Park, for Respondent.
   PER CURIAM.

The State of Florida, Department of the Lottery, petitions this court for a writ of prohibition or certiorari. For the reasons set forth below, we deny the request for prohibition relief but grant the petition for writ of certiorari.

Respondent Curcio holds a ticket which she contends entitles her to collect a prize of $500,000 from the Department. When her request for payment was denied, she brought suit in the Circuit Court for Leon County. The amended complaint seeks to recover damages under four causes of action: breach of contract (Count I), equitable estoppel (Count II), unfair and deceptive trade practices (Count III), and misleading advertising (Count IV).

The Department argues that Curcio’s claims are barred by the doctrine of sovereign immunity and this court should issue a writ of prohibition, directing that the circuit court litigation be resolved in its favor for that reason. The trial court has not yet ruled on these defense theories and the petition, insofar as it seeks a writ of prohibition, is therefore denied. See Campbell v. Lungstrum, 732 So.2d 437 (Fla. 1st DCA 1999).

The Department also invokes this Court’s certiorari jurisdiction to review the trial court’s order of June 6, 2011, which granted Curcio’s motion to compel and denied the Department’s motions for protective order with regard to discovery. We find that the sovereign immunity defense to Counts III and IV raises questions of law and can be resolved without resort to discovery. We also find that the court must rule on the sovereign immunity defense to Counts I & II before authorizing discovery on the merits of Curcio’s claims. The discovery ordered by the trial court is overbroad for this purpose. We grant certiorari and quash the trial court’s order of June 6, 2011. The trial court shall issue an amended order which authorizes only the discovery necessary to resolve the sovereign immunity defense to Counts III & IV.

PETITION GRANTED IN PART AND DENIED IN PART.

BENTON, C.J., HAWKES and RAY, JJ., concur.


text:
    Jean M. TRANQUILLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3264.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2011.
    Jean M. Tranquille, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a rule 3.850 motion raising two claims. We affirm the summary denial of claim two without further discussion. For the reasons discussed below, we reverse the summary denial of the first claim and remand for the trial court to either attach record documents conclusively refuting it or to hold an evidentiary hearing.

The appellant was arrested in Duval County for cocaine possession charges and then bonded out. He claims his public defender was attempting to negotiate with the state to have him placed in a drug program rather than receiving incarceration. While out on bond, he was arrested in Jackson County on new charges of resisting arrest with violence and “false 911 calls[.]” He states that after this Jackson County arrest counsel advised him that all pending negotiations were off due to the new charges. He later retained private counsel and told counsel that he believed the Jackson County charges would be dismissed. He claims that he insisted to counsel that he felt strongly that it was still possible to negotiate with the state for the appellant to be placed in a drug treatment program rather than to be incarcerated for the Duval County charges.

The appellant claims that on October 14, 2010, just prior to the appellant’s appearance before the Duval County court, counsel took the appellant out of the courtroom holding cell and told him that because of the Jackson County charges the state was no longer willing to negotiate to send the appellant to a drug treatment program. Instead, according to the appellant, the state offered to make a deal of 13 months’ imprisonment, and the state told counsel that that was its final offer. Based on counsel’s representation, the appellant then pled to the possession charges, and the court sentenced him to 13 months’ imprisonment. The appellant then claims that he later learned that the state had dropped the new Jackson County charges on October 8, 2010, or six days before he pled to the Duval County charges.

The appellant argues that pursuant to Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), counsel acted ineffectively because he failed to investigate and determine that the pending Jackson County charges had been dropped prior to the hearing before the Duval County court when the appellant entered a plea in this case. He argues that if counsel had so acted, then he likely would have received a better offer from the state, and as an example he cites the previously discussed placement in a drug treatment program which he insists was on the table for negotiation prior to the Jackson County charges being lodged against him.

We conclude that the appellant has made a facially sufficient claim that he suffered prejudice as a result of counsel’s failure to determine that the Jackson County charges had been dropped six days prior to the appellant’s plea hearing in the Duval County court. See Strickland. We therefore reverse and remand for the trial court to either attach portions of the record that conclusively refute the appellant’s claim or to hold an evidentiary hearing on the matter.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

WOLF, LEWIS, and WETHERELL, JJ., concur.


text:
    Bryan Keith TRUETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4645.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2011.
    Matt Shirk, Public Defender, and J. Mark Wright, Assistant Public Defender, Green Cove Springs, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 31, 2011, the Court has determined that the appeal is untimely. In order to invoke the Court’s jurisdiction in a timely manner, the appellant must file a notice of appeal within 30 days of rendition of the judgment and sentence. Fla. R.App. P. 9.140(b)(3). The lower tribunal rendered the judgment and sentence on July 25, 2011. Fla. R.App. P. 9.020(h). The thirtieth day following rendition was Wednesday, August 24, 2011. Thus, the notice of appeal, filed the next day, failed to timely invoke the Court’s jurisdiction. Accordingly, the appeal is dismissed for lack of jurisdiction.

DISMISSED.

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


author: PER CURIAM. EVANDER, J.,

text:
    Karen J. CALLOWAY f/k/a Karen Johnson Tawil, Appellant, v. Nabil TAWIL, n/k/a Nick Tawil, Appellee.
    No. 5D10-2972.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2011.
    William S. Graessle, of William S. Graes-sle, P.A., Jacksonville, for Appellant.
    Catherine G. Swain, of Catherine G. Swain, P.A., Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.

EVANDER, J., concurs specially, with opinion.

EVANDER, J.,

concurring specially.

The mother appeals from an order granting the father’s supplemental petition for modification. The order had the effect of transferring majority timesharing with the parties’ minor child to the father. Because there was substantial competent evidence to support the trial court’s decision, I agree that an affirmance is required. I write only to address the trial court’s decision to permit the parties’ sixteen-year-old child to remain in the courtroom during the testimony of the mother and the court-appointed psychologist.

In overruling the mother’s objection to the presence of the child in the courtroom, the trial judge stated: “Once he’s been released as a witness, he’s a member of the public just like anybody else.” The trial judge’s decision was in contravention of Florida Rule of Family Procedure 12.407. That rule prohibits the attendance of the minor child at a hearing unless there has been a showing of good cause. While there may have been good cause to permit this minor child to testify, the record is devoid of a justifiable reason to have the child hear the testimony of his mother and the court-appointed psychologist in this exceedingly contentious trial.

It is also noteworthy that Florida courts have recognized that, except in extreme circumstances, a parent has the obligation to encourage a positive relationship between the minor child and the other parent. See Schutz v. Schutz, 581 So.2d 1290 (Fla.1991); Marcus v. Marcus, 902 So.2d 259 (Fla. 4th DCA 2005); Levy v. Levy, 861 So.2d 1211 (Fla. 3d DCA 2003); see also § 61.13(3)(a), Fla. Stat. (2010) (demonstrated capacity and disposition of parent to facilitate and encourage close and continuing parent-child relationship is factor for court to consider in determination of time-sharing schedule). Yet, in this case, the mother was compelled to give testimony in the presence of her minor child — even where her testimony included allegations of severe misconduct by the father. I would suggest that in disputed family law cases, it would be a rare situation in which it would be appropriate to permit a minor child (who has the mental capacity to understand common speech) to be present during the testimony of one of the child’s parents.

      . No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.
      Fla. Fam. L.R.P. 12.407.


author: WARNER, J.

text:
    Daniel G. SIEGEL, Simon B. Siegel, Beverly Siegel, Randy T. Siegel and Nancy S. Nasto, Appellants, v. JP MORGAN CHASE BANK, Judith S. Novak, and J.P. Morgan Trust Company, N.A., Appellees.
    No. 4D09-699.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.

      John R. Hargrove of Hargrove Pierson & Brown, P.A., Boca Raton, and Bernard A. Jackvony of Pannone, Lopes, Dever-eaux & West LLC, Providence, Rhode Island, for appellants.
    Matthew Triggs and Jonathan Galler of Proskauer Rose LLP, Boca Raton, for ap-pellee JP Morgan Chase Bank and J.P. Morgan Trust Company, N.A.
    Peter A. Sachs, Theodore S. Kypreos and Jennifer G. Ashton of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee Judith S. Novak.
   WARNER, J.

We grant appellees’ motions for rehearing, withdraw our previously issued opinion and substitute the following in its place.

This is an appeal of a final judgment determining that the beneficiaries of a trust did not have standing to challenge certain pre-death distributions and expenditures from the trust by the trustee and the settlor/decedent’s attorney-in-fact, because the expenditures and distributions were within the discretion allowed to the trustee under the terms of the trust. We reverse, because the beneficiaries did have standing, and an evidentiary hearing was required to determine whether the expenditures and distributions were a breach of fiduciary duty.

This is the second appearance of this case in this court. The underlying facts may be read in Siegel v. Novak (“Siegel I”), 920 So.2d 89 (Fla. 4th DCA 2006). Briefly, Dorothy H. Rautbord established a trust to benefit her for her life, with the remainder to be distributed to her children who survived her, including her sons, Daniel and Simon Siegel. The trust permitted the trustee to pay from income and principal, so much “as the Trustee, in its sole discretion, shall deem appropriate or advisable for the support, maintenance, health, comfort or general welfare of the Settlor [Rautbord].” It reserved to the settlor alone the power of amendment, modification and revocation, in whole or in part, specifically excluding an attorney-in-fact from exercising those powers. That is important, because Rautbord also executed a power of attorney to her daughter, No-vak, giving her multiple powers, including the power to make gifts to individuals or charitable organizations “provided that such gift either (i) shall be reasonably consistent with any pattern of my giving or with my estate plan or (ii) shall not exceed the annual exclusion available from time to time for federal gift tax purpose.” The power of attorney specifically excluded any power to revoke or amend or withdraw principal from any trust where Rautbord had reserved the power to amend or revoke.

Rautbord appointed JP Morgan Chase Bank as her trustee in 1995, at which time the trust was also amended to provide that New York law would govern the trust. In addition, another trust amendment provided that the trustee could relocate the trust corpus, which JP Morgan did in 2008, transferring the assets to Florida. At some point after the execution of the 1995 amendment, Rautbord developed severe dementia.

As noted in Siegel I, during Rautbord’s lifetime Novak made large withdrawals of principal from the trust by signing revocation letters, which the trustee approved. In addition, the trust issued checks for many gifts, and the trustee spent considerable amounts for what is termed Raut-bord’s general welfare.

Rautbord died in 2002. After her death, JP Morgan Chase Bank filed a complaint for a judicial accounting pursuant to chapter 737, Florida Statutes, seeking a discharge from liability for its actions as trustee. The Siegels — Daniel and Simon Siegel, along with Simon’s wife Beverly and two children, Randy and Nancy — filed an answer and affirmative defenses, alleging that some of the trustee expenditures may not have been made for purposes specified in the trust, namely the support, maintenance and general welfare of Rautbord. The trial court granted JP Morgan’s motion for summary judgment, finding that the Siegels lacked standing to challenge any distributions made prior to Rautbord’s death, because the trust was revocable, and the brothers had no present interest in the trust assets during their mother’s life.

In Siegel I, Judge Gross detailed New York law and concluded that the brothers did have standing to challenge the trust distributions. Specifically, the opinion held:

[U]nder New York law, after the death of the settlor, the beneficiaries of a revocable trust have standing to challenge pre-death withdrawals from the trust which are outside of the purposes authorized by the trust and which were not approved or ratified by the settlor personally or through a method contemplated through the trust instrument. By outside the purposes of the trust we mean any expenditures that were not “appropriate or advisable for the support, maintenance, health, comfort or general welfare of’ Mrs. Rautbord.

Id. at 95-96 (emphasis in original). Explaining this holding, Judge Gross relied on New York law, which governs the trust:

The court in Estate of Morse, 177 Misc.2d 43, 676 N.Y.S.2d 407, 409 (N.Y.Sur.1998), described the broad reach of New York’s concept of standing:
In that light, it has been noted that “anyone who would be deprived of property in the broad sense of the word ... is authorized to appear and be heard upon the subject” of whether a will that would thus affect him adversely should be admitted to probate (Matter of Davis, 182 N.Y. [468, 472, 75 N.E. 530 (N.Y.1905) ]). Accordingly, standing to object to probate does not require an interest that is “absolute”; a contingent interest will be enough (see Matter of Silverman, 91 Misc.2d 125, 397 N.Y.S.2d 319). In other words, the uncertainty of an interest should not preclude its holder from seeking to protect it, i.e., she should have standing to object to a propounded instrument that makes the possibility of benefit even more remote or eliminates such possibility entirely.

Id. at 95-96. Judge Gross noted, “With an interest in the corpus of the trust after the death of their mother, the Siegels have standing to challenge the disbursements; they have alleged a concrete and immediate injury, caused by Novak and the Bank, which could be redressed by the circuit court. Without this remedy, wrongdoing concealed from a settlor during her lifetime would be rewarded.” Id. at 96 (emphasis added).

Following remand, JP Morgan filed an amended complaint, and the Siegels filed a counterclaim for breach of fiduciary duty, as well as a cross-claim against Novak for an accounting, breach of fiduciary duty, and for interference with an expectancy. The central issue involved the propriety of distributions authorized by the trustee pri- or to the death of Rautbord. The Siegels alleged that although Novak, as attorney-in-fact, had the power to make gifts, she did not have the power to revoke the trust. Despite this, she signed letters of partial revocation of substantial portions of the trust assets, which JP Morgan routinely approved, contrary to the practice of the predecessor trustee, who refused to make distributions as gifts because Rautbord had been taken advantage of because of her generosity.

The Siegels challenged four categories of distributions. First, JP Morgan had issued 111 checks for gifts to friends and family from 1995 to 2002. Some of the recipients were employees of Novak and the JP Morgan employee in charge of administering the trust. In addition, some of those gifts incurred gift tax liability, contrary to the specific provisions of the power of attorney. Second, Novak, as attorney-in-fact, forgave substantial debts owed to Rautbord, claiming that these were in fact gifts. Third, the trust agreement provided that, upon Rautbord’s death, a trust for the benefit of her sister-in-law, Ruth Haas, would be established. Despite the trust’s terms, Novak established the trust, and the trustee distributed funds to create it prior to Rautbord’s death, causing a substantial gift tax liability. Fourth, the Siegels challenged the excessive expenditures for the “welfare” of Rautbord.

In an effort to streamline the trial of the action, JP Morgan moved for a preliminary determination “as to whether the Sie-gels have standing with respect to each distribution that they seek to challenge.” In its motion, it pointed to Siegel I and argued that the Siegels had standing to challenge only “those trust distributions that were outside of the purposes authorized by the discretionary invasion standard set forth in the trust.” Noting that the Siegels had identified approximately 75 distinct trust expenditures that they intended to challenge at trial, JP Morgan suggested that the court first hear evidence and make a determination as to whether those expenditures were “appropriate or advisable for the support, maintenance, health, comfort or general welfare of’ Mrs. Rautbord.

At the commencement of the trial, JP Morgan again suggested that the court first determine the “standing” issue. The Siegels’ attorney agreed that issues regarding the interpretation of the documents were questions of law and that whether the documents allowed disbursement of trust funds to third parties as gifts could be determined first by the court. The court then granted the motion and directed that it first make the determination of the Siegels’ standing to make objections.

The parties proceeded to give argument to the court both on the law and the facts as to why the trust instrument did or did not permit gifts by the trustee or the attorney-in-fact. At the end of the argument, the parties agreed that the court could decide whether the trust instrument authorized the making of gifts. The court stated, “You would like me to come back with a decision as to whether the language of the trust authorized the trustee to invade the principal of the trust to make gifts.” The Siegels’ attorney added, “Principal and income and as to Judy Novak, whether or not the paragraph 3, subsection 6, in the durable power of attorney prohibited her from modifying or revoking or withdrawing principal from the 1990 trust.” Novak’s attorney objected and instead requested the court to determine “whether the gifts authorized by Judy No-vak were appropriate” under the power of attorney. He urged the court to determine whether the gifts were approved or ratified by the settlor, to which the Siegels’ attorney stated that this would require the presentation of additional evidence. They objected to the court making these determinations.

The next day the court delivered its order on the preliminary issue of standing. In it, the court stated the question as follows:

More specifically, the Court is to decide whether the challenged withdrawals from the Trust are outside the purposes authorized by the Trust (that is, not appropriate or advisable for the support, maintenance, health, comfort or general welfare of Ms. Rautbord), and were not approved or ratified by the settlor personally or through a method contemplated through the Trust instrument. By consent, the parties also tried the issue of the propriety of the actions of Ms. Novak, Ms. Rautbord’s attorney-in-fact, with respect to these transactions.

The court then made specific findings with respect to each category of challenged expenditures. The first category “deals with expenditures for birthday parties, health expense, pets, etc. On their face, they seem appropriate or advisable for the support, maintenance, health, comfort, or general welfare of the settlor, Mrs. Raut-bord. Accordingly, the Siegels have NO STANDING to challenge these expenditures from the Trust.” The second category included the forgiveness of debts, owed to Ms. Rautbord, by the attorney-in-fact. The court noted that no details were presented in the arguments. “However, assuming the debts were forgiven by Ms. Rautbord’s attorney-in-fact, Ms. Novak, such forgiveness is an appropriate and valid exercise of Novak’s broad powers set forth in Section II of the Florida Durable Power of Attorney (JPM — 9). The provisions of section III of that Power of Attorney do not prohibit the forgiveness of the debts set forth in List B.” The court equated the power to make gifts with the power to forgive debts. As to the third category, which included the expenses incurred by the trust in making gifts that exceeded the gift tax exclusion for federal income tax purposes, as well as the premature funding of the Ruth Hass trust, the court concluded that these too were within the broad power of gifting, as they were consistent with a long history of gifting by Mrs. Rautbord. Likewise, the court concluded that the final category of gifts to employees, friends and relatives also continued Mrs. Rautbord’s history of gift giving. The court supported its conclusions with a finding that no showing of lack of good faith on the part of the attorney-in-fact had been made. The court essentially found that all gifts in each category were permitted. Thus, the court found that the Siegels had no standing to challenge them. From this order, the Siegels appeal.

From a reading of the transcript of the trial, it is clear to us that no agreement actually existed as to what would constitute this “preliminary” determination of standing. The Siegels suggested that the court interpret the documents and decide whether the trustee and attorney-in-fact had the power to gift from the trust. JP Morgan appeared to agree with this limited determination. Novak expanded it to ask the court to determine whether the particular gifts were appropriate and not outside the purposes authorized in the trust. The court decided the latter as well as the former questions. In other words, not only did it decide that gifts generally were authorized by the terms of the trust and power of attorney, it also decided that each of the gifts made was authorized, as were all of the various other challenged expenses. We think the trial court went beyond the issues which all parties agreed to submit as a preliminary issue of standing.

In any event, the trial court and parties did not interpret Siegel I correctly. Our opinion in Siegel I determined that the Siegels did have standing to challenge the trustee’s actions, because they had a direct interest in the corpus of the trust after their mother’s death. The issue of whether the withdrawals and expenses were appropriate and authorized was not a preliminary standing question but the entire substance of the proceeding, i.e., whether the trustee and attorney-in-fact breached their fiduciary duties. The trial court incorrectly treated the question of whether the withdrawals were appropriate and authorized as a question of standing. We do not conclude that the Siegels consented to this interpretation or waived their right to challenge specific expenses as unauthorized. The Siegels agreed that the court could make a legal determination as to whether the trust agreement and power of attorney authorized gifts. They did not agree that the court could simply determine from that legal issue that each of the gifts given was authorized, as we shall explain.

In Siegel I we noted that New York law should be applied to the substantive matters in this case. This included both a determination of standing and the construction of the trust instrument. The interpretation of the various documents is a question of law. See Gitelson v. Du Pont, 17 N.Y.2d 46, 268 N.Y.S.2d 11, 215 N.E.2d 336 (1966). We review questions of law de novo. See, e.g., Davis v. Rex, 876 So.2d 609, 613 (Fla. 4th DCA 2004).

The trial court found that the trustee had the power to pay gifts from the trust, because the power of attorney contained a specific power of the attorney-in-fact to make gifts. Because the gifts were within that broad power, the trustee acted appropriately in making expenditures for such gifts as requested or directed by No-vak. The gifts were part of a long history of generosity on behalf of the settlor, and they were “appropriate or advisable for the support, maintenance, health, comfort, or general welfare of Ms. Rautbord.” The court was incorrect in its interpretation of the trust instrument.

The trust agreement gives no power to the trustee to make gifts. The trustee does have the power to invade the principal for the welfare of the settlor. Specifically, the trustee had the power to disburse income and principal “for the support, maintenance, health, comfort, or general welfare of the Settlor.” The power of attorney, on the other hand, gives the attorney the power to gift as follows:

To make any gift, either outright or in trust, to any individual (including my Attorney-in-Fact) or any charitable organization, provided that any such gift either (i) shall be reasonably consistent with any pattern of my giving or with my estate plan or (ii) shall not exceed the annual exclusion available from time to time for federal gift tax purposes.

(Emphasis added). Significantly, the power of attorney also prohibited the attorney-in-fact from invading the principal of the trust by stating that the attorney in fact was not granted the power “[t]o amend, modify or revoke, in whole or in part, or withdraw any of the principal of, any trust over which I have reserved or have been granted such power....”. The trust agreement specifically provided that the power of amendment, modification, and revocation were personal to the settlor and could not be exercised by her attorney-in-fact. Thus, the power of attorney specifically prohibited the attorney-in-fact from exercising the power Mrs. Rautbord reserved to herself to revoke the trust. The Siegels claim that the attorney-in-fact attempted to do just that by signing letters of partial revocation to the Trustee to withdraw principal. The trial court’s ruling on standing prevented this issue from being litigated.

Despite the lack of power of the trustee to make gifts, the trustee made gifts and permitted Novak to withdraw principal to pay other gifts. The trustee had no authority to make gifts itself. We can find no legal support which holds that gifts to others can constitute payments for the “comfort or general welfare” of the beneficiary of a trust. Nevertheless, such a finding must be based upon a factual record, which the trial court did not have in concluding otherwise.

The Siegels cite Kemp v. Paterson, 4 A.D.2d 153, 163 N.Y.S.2d 245 (1957), which provides some support for the proposition that the clause does not include giving away principal to others. In Kemp, a set-tlor created a trust providing for the payment of income during the life of the set-tlor to the settlor’s mother. However, should the settlor die before her mother, then the income would continue to be paid to the mother and then to the settlor’s daughter. Upon the daughter’s death the corpus would be distributed to the daughter’s issue, or if none, to other designated persons. The mother died and the daughter became the recipient of the income of the trust. Pursuant to a term of the trust which permitted the trustees to pay over so much of the principal of the trust from time to time as the trustees deemed in the “best interest” of the daughter, the trustees distributed the entire principal to the daughter. The trustees argued that giving the entire amount to the daughter would permit her to utilize the funds to support her children and would permit her to transfer some of the property to her own children, free of estate taxes.

When brought before the trial court for approval, the court concluded that the termination of the trust was within the trustees’ discretion, so long as they were acting in good faith. The appellate court disagreed. In concluding that the trustees had not shown that termination of the trust was in the “best interest” of the beneficiary, the court noted:

While undoubtedly, in a sense, these purposes will serve the beneficiary’s “best interest”, the latter words must be interpreted not in the broadest meaning but in a manner which is consistent with the trust deed. Her “best interest” must be judged within the framework of the status bestowed upon her by the settlor, the status of a life beneficiary, not of a recipient of the entire trust res.
In creating a trust, the settlor was not merely designating trustees as conduits through whom a gift could be made to the daughter whenever it would be to her advantage. The trust represented a plan of the settlor that included not only the beneficiary Margaret, but also re-maindermen. In adding a flexible provision for the invasion of principal for the “best interest” of the beneficiary, the settlor was not injecting a facile means for destroying the trust.
By limiting the invasion of principal to those instances where it will be for the “best interest” of the beneficiary, the settlor was, in effect, restricting the power of the trustees, and imposing a duty on them to limit such invasion for such objects and purposes as, in their judgment, would be beneficial to the ces-tui que trust.

Kemp, 4 A.D.2d at 156, 163 N.Y.S.2d 245. Applying that reasoning to the facts of this ease, the trust restricted the power of the trustees and imposed a duty to invade principal only for the “support, maintenance, health, comfort or general welfare of the Settlor.” Furthermore, the trust had significant provisions to dispose of the trust property on her death to specific persons. Thus, the settlor had a purpose not only to benefit herself during her lifetime but to benefit specific other persons. Permitting the trustee to deplete the trust principal by lavishing gifts on others does not provide for the support or welfare of the settlor and disregards the duty to the remainderman. The trial court erred in its preliminary legal determination that the trust instrument permitted the trustee to make gifts.

The trial court should not have relied on the attorney-in-fact’s authority to gift as indirect support for its granting of gifts. First, the power of attorney limited such gifts to those which were consistent with Ms. Rautbord’s pattern of giving or her estate plan. That is a fact question, requiring proof of the pattern of giving. That Ms. Rautbord was a generous person does not establish that her pattern of giving would include the gifts made in this case, particularly when some of the gifts went to employees of the attorney-in-fact and to the trustee, as well as persons whom she did not know. Secondly, and more importantly, the attorney-in-fact was prohibited from revoking the trust. Only Ms. Rautbord had that power. The durable power of attorney prohibited the attorney-in-fact from exercising the power “to revoke, in whole or in part” any trust where the settlor reserved that power to herself. At least some authority refuses to recognize a distinction between a partial revocation and a withdrawal of principal. See In re Shapley’s Deed of Trust, 353 Pa. 499, 46 A.2d 227 (1946) (“We are not prepared to recognize a distinction between settlor’s right to withdraw principal from the trust and his right to revoke the trust in whole or in part. Both cause an amendment or partial revocation, and with the same legal effect. For example: If a set-tlor placed $100,000 in an inter vivos trust, with all the reservations hereinbefore discussed, and subsequently concluded to reduce the trust to $50,000, there would seem to be no difference in principle if settlor by written instrument revoked or modified the trust by reducing it by one-half, or exercised his right to withdraw one-half from the operation of the trust.”). A determination of whether these withdrawals of principal constitute partial revocations of the trust should await the full development of the evidentiary record on each transaction.

While not directly on point, In re Mueller, 19 Misc.3d 536, 853 N.Y.S.2d 245 (N.Y.Sur.2008), is an example of the misuse of a power to gift by an attorney-in-fact. There, a 98-year-old woman gave a power of attorney to her neighbor. The instrument included a broad power to make gifts, including gifts to the attorney-in-fact. The neighbor then used this power, transferring all of the woman’s accounts and property to himself. After her death, when her heirs sued to set aside the transfers, the attorney-in-fact defended based upon the provision of the power of attorney absolving the attorney-in-fact of all liability to her estate or heirs for any act done under the power of attorney. The court rejected this claim. In doing so it noted:

Respondent’s use of the POA is a classic example of how such an instrument may be abused by an attorney-in-fact for his personal benefit. At his deposition respondent admitted that he transferred to himself or his mother virtually all of decedent’s liquid assets and secured a life tenancy in the real property.

19 Misc.3d at 541, 853 N.Y.S.2d 245. The court concluded that a clause which seeks to exonerate an attorney-in-fact from any and all liability runs afoul of the spirit of New York’s public policy and the duty of an attorney-in-fact as established under Ferrara [Matter of Ferrara, 7 N.Y.3d 244, 819 N.Y.S.2d 215, 852 N.E.2d 138 (2006) ]. Ferrara, in turn, held that an attorney-in-fact must act in the best interests of the principal, which is consistent with the fiduciary duties that the courts have imposed on the attorney-in-fact.

“[A] power of attorney ... is clearly given with the intent that the attorney-in-fact will utilize that power for the benefit of the principal” (Mantella v. Mantella, 268 A.D.2d 852, 852, [701 N.Y.S.2d 715] [3d Dept.2000] [internal quotation marks and citation omitted]). Because “[t]he relationship of an attorney-in-fact to his principal is that of agent and principal ..., the attorney-in-fact must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principles of morality, fidelity, loyalty and fan* dealing” (Semmler v. Naples, 166 A.D.2d 751, 752, [563 N.Y.S.2d 116] [3d Dept.1990] [internal quotation marks and citations omitted]).

Ferrara, 7 N.Y.3d at 254, 819 N.Y.S.2d 215, 852 N.E.2d at 144. Although the power of attorney in this case was a Florida durable power of attorney, Florida law states that an attorney-in-fact must exercise the powers conferred as a fiduciary. See, e.g., In re Estate of Schriver, 441 So.2d 1105 (Fla. 5th' DCA 1983); § 709.08(8), Fla. Stat. (2011). Therefore, the principles of the foregoing case are applicable as they also consider an attorney-in-fact a fiduciary.

We do not mean to suggest that the attorney-in-fact has exercised her power to gift to enrich herself. In fact, it does not appear that she made any substantial gifts to herself, even though the terms of the power of attorney permitted them. However, the fact that substantial gifts were given to so many people suggests that the power to gift was not exercised with Mrs. Rautbord’s best interests in mind. Whether the gifts that she made as attorney-in-fact were in the best interest of Mrs. Raut-bord is an issue of fact for determination by the court. Nevertheless, where the gifts were made from substantial invasion of principal, which if tantamount to a partial revocation was beyond the powers assigned to the attorney-in-fact, that alone at least suggests that she breached her fiduciary duty and did not act in the best interest of her principal. A trial on this issue is required.

Because we conclude that the trustee did not have the power to gift, the trial court’s justification for the pre-death funding of the trust for Carl and Ruth Haas also fails. Here, however, a specific provision of the trust provided that the trust be funded at the settlor’s death, undoubtedly to avoid the substantial gift taxes that the trust ended up paying to set up the trust during the settlor’s lifetime. “[T]he trust instrument is to be construed as written and the settlor’s intention determined solely from the unambiguous language of the instrument itself.” See Matter of Chase Manhattan Bank, 6 N.Y.3d 456, 460, 813 N.Y.S.2d 361, 846 N.E.2d 806 (2006) (citation omitted). The settlor unmistakably directed the creation of the trust on her death. The premature funding of the trust violated its terms, and the trial court erred in concluding otherwise. We remand this issue for an evidentiary hearing, because the trustee raised various affirmative defenses to this claim including waiver.

As to the forgiveness of debts, which the trial court also justified by the power to gift, we must remand for further consideration. First, as noted above, a determination must be made as to whether those gifts were consistent with the settlor’s pattern of giving and in her best interests. Second, we do not know whether the forgiven notes were an asset of the trust. If so, the attorney-in-fact has no power over the principal of the trust. She had no specific power to essentially dispose of a trust asset.

Finally, the Siegels objected to expenditures for Mrs. Rautbord such as for lavish birthday parties, airline tickets for friends, health expenses, pets, and similar items. The trial court, without any evidence whatsoever, found that “on their face, they seem appropriate or advisable for the support, maintenance, health, comfort, or general welfare of the settlor, Ms. Rautbord.”

The trust instrument gives the trustee authority to “pay to or apply for the benefit of the Settlor, at any time or from time to time, so much or all of the net income and principal thereof as the trustee, m its sole discretion, shall deem appropriate or advisable for the support, maintenance, health, comfort or general welfare of the Settlor.” Under New York law, even though the trustee has the sole discretion to determine the appropriateness of expenditures, it does not foreclose all inquiry by a court of the proper use of such discretion. See In re Lyons’ Estate, 13 Misc.2d 287, 176 N.Y.S.2d 769 (N.Y.Sur.1958). “[T]he court has the responsibility to ensure that the trustees do not abuse their discretion. Accordingly, the court has the authority to correct abuses in the exercise of absolute discretion that are arbitrary or the result of bad faith.” In re Goodman, 7 Misc.3d 893, 901, 790 N.Y.S.2d 837 (N.Y.Sur.2005). Where distributions fall within a class of expenditures authorized by the trust, a trustee must still act reasonably and with good faith in carrying out the terms of the trust. See In re Estate of Wallens, 9 N.Y.3d 117, 122, 847 N.Y.S.2d 156, 877 N.E.2d 960 (2007). In Wallens, the court required a hearing to determine whether the expenditures were authorized and in the best interests of the beneficiary. Similarly, in this ease, the trial court had no evidence before it to determine whether some of the expenses fall within the trustee’s duty to provide for Mrs. Rautbord’s support, care, comfort, and general welfare. We likewise remand for a hearing to make this determination.

We affirm without further comment on the other issues raised on appeal. We dismiss the “cross-appeal” as untimely. The cross-appealed order was a final order entered in 2006 which should have been appealed within 30 days of its rendition. See Pearson v. Cobb, 701 So.2d 649, 650 (Fla. 5th DCA 1997). Even if it were not untimely, we would find no error in the court’s construction of the settlement agreement.

In conclusion, we reverse for a trial on the issues addressed in this opinion. We have determined that the trial court erred in disposing of the entire case on the issue of standing contrary to our prior opinion which determined that appellants did have standing to contest the various expenditures. They now must have the opportunity to present evidence to support their claims of breach of fiduciary duty by both the trustee and the attorney-in-fact. Likewise, the appellees have the right to defend and offer proof of their affirmative defenses.

Reversed in part; affirmed in part; and remanded for further proceedings consistent with this opinion.

POLEN and LEVINE, JJ., concur.


author: RAMIREZ, J.

text:
    The STATE of Florida, Appellant, v. Guillermo MARTINEZ, Appellee.
    Nos. 3D10-1007, 3D10-906.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.

      Pamela Jo Bondi, Attorney General and Nikole Hiciano, Assistant Attorney General, for appellant.
    Arthur Joel Berger, Miami, for appellee.
    Before RAMIREZ, SHEPHERD, and SALTER, JJ.
   ON MOTION FOR REHEARING

RAMIREZ, J.

This case is before us on the defendant’s motion for rehearing. We grant the motion for rehearing, withdraw our opinion dated August 31, 2011, and substitute the attached corrected opinion in its place.

The State of Florida appeals the trial court’s order granting defendant’s motion to suppress evidence. We reverse because the search warrant included the items that the trial court suppressed.

On September 2, 2008, the Miami Dade Police Department received an anonymous tip about a possible marijuana hydroponics lab located on 19707 SW 84th Place, Cutler Bay (“first property”). The department dispatched Detective Diaz, along with five other officers, to perform a “knock-and-talk” at the location. When the officers arrived at the first property, they noticed a white pick-up truck and a white van parked on the premises. Detective Diaz and the other officers approached the home. As the officers walked to the front door of the residence, they intercepted Evert Soler Vier leaving the residence.

The officers questioned Vier, asking where they could find the owner of the home. Vier explained that the owner could be found inside the residence and that he was only on the property to perform air conditioning repairs. Officers sat Vier on the exterior of the home to await further instruction. The officers then continued towards the residence. As they approached, Diaz noticed the smell of “live marijuana.” Once at the door, Diaz knocked and was greeted by Guillermo Martinez. Diaz explained why he was there and asked Martinez of the whereabouts of the homeowner. Martinez told the officers that he did not live there and did not know what was going on. The officers asked Martinez if they could search the property. Martinez did not consent to the search. Diaz escorted Martinez outside, and sat him next to Vier.

Noting the smell of marijuana, faint humming sounds, and uninterrupted air conditioning flow, Diaz decided that sufficient indicators of illegal activity were present to seek a warrant. Before leaving the premises, the officers entered the property to perform a protective sweep to ensure no one was present inside the home that could threaten an officer’s or the evidence’s safety. While performing the sweep, officers spotted a third man, Marin, who was then held at gunpoint and asked if he knew where the owner of the home was. Marin explained to the officers that he was inside the home to use the restroom and did not know any information regarding the owner. Marin was made to join the other two men outside the residence.

After performing the protective sweep of the property, Diaz left the residence and sought a search warrant for the first property. In his affidavit for the search warrant, Diaz gave his history of being a narcotics officer, as well as his experiences. Given his years of experience, he stated that the property had several indicators for the presence of illegal activity. Diaz listed the smell of “live marijuana,” humming sounds, and uninterrupted air conditioning flow. Diaz requested that the officers be allowed to search the premises, the house and any vehicles and/or containers located on the curtilage of the property. Magistrate Meyer granted the warrant to search the first property. The warrant allowed the officers to “enter and search forthwith the premises above described, the curtilage thereof, including any vehicles and/or temporary structures within the curtilage, and all persons found on the premises.” (internal quotations omitted). The “premises” was to include “titles, receipts and any other documents and records evidencing illegal activity, or that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances.”

Later that day, Diaz returned to the scene with the warrant and was joined by several other officers. The officers secured the three men within two separate squad cars, and then carried out a search of the residence. Inside the home, police officers found thirty-seven pounds of marijuana and evidence of a hydroponics marijuana lab. After searching the residence, the officers used Martinez’s keys, without his consent, to search through his pick-up truck. Inside the truck, the officers found an electric bill for a separate property located at 14957 SW 59 Street (second property) in the name of Malavy Estrada, who was not present at the first property. The officers also found receipts for payment of the second property’s electric bill within Martinez’s wallet. In addition, the officers also searched the mailbox at the first property. The mailbox contained a water and sewer bill for the first property, sealed and addressed to Martinez. The officers, without an additional warrant, opened the sealed mail hoping to establish a time frame for Martinez’s payment history for the first property.

On September 3, 2008, given the billing information found on the first property, Diaz went to perform another “knock-and-talk” at the second property. When the officers approached the property, they noted the smell of “live marijuana” a persistent humming noise, and the constant running of an air conditioning unit. After noticing the same indicators as the first property, Diaz concluded the need for an additional search warrant. Diaz’s affidavit for the warrant relied on the indicators, his experiences as a narcotics officer, and the crux of the affidavit, was the bills found at the first property, both in the mail and in Martinez’s vehicle. The magistrate granted Diaz the second warrant. Later that day, Diaz and other officers returned to search the second property. The officers entered the second property and found another hydroponics marijuana lab with approximately twenty-eight pounds of marijuana.

Martinez was charged with first-degree trafficking in cannabis based on the evidence found at the first property and was subsequently charged with trafficking in cannabis, use or possession of drug paraphernalia, and grand theft based on the evidence found in the second property. He filed a motion to suppress evidence as to both cases, and the trial court suppressed the evidence seized from the mailbox and the truck at the first property and all evidence found at the second property. With respect to the mailbox and vehicle evidence, the court explained that the officers, when requesting the search warrant for the first property, did not specify either the mailbox or the truck in the affidavit provided for the warrant. Furthermore, the trial court reasoned that the search of the second property was done solely on the basis of the evidence found in the mailbox and truck, thus making it invalid.

On appeal, Martinez concedes that the search of the truck was encompassed within the warrant. The warrant included any vehicles within the curtilage, and the truck was parked within the curtilage. He maintains, however, that the trial court properly suppressed items found in the mailbox and in the truck.

We review the granting of the motion to suppress de novo as the factual findings are not in the dispute. See State v. Quinn, 41 So.3d 1011 (Fla. 5th DCA 2010). In United States v. Frank, No. 99-30118, 2000 WL 420638 (9th Cir. April 18, 2000), the circuit court of appeals affirmed the denial of a motion to suppress evidence seized pursuant to a search warrant, stating:

Appellant argues that the trial judge erroneously admitted three “Post-it” notes, a letter, and a phone book under the plain view exception to the Fourth Amendment’s warrant requirement. Although the incriminating nature of each of these items was immediately apparent only after opening or otherwise manipulating them, the search warrant gave the police officers a lawful right to manipulate and examine the evidence because it targeted “books, papers, documents, and/or memoranda concerning the implementation of the crimes of possession, manufacture and mailing of improvised explosive devices.”

Likewise here, the officers seized three individuals at a house where they had just found thirty-seven pounds of marijuana and evidence of a hydroponics marijuana lab. None of the individuals admitted ownership or possession of the house. The warrant allowed the police to search for “titles, receipts and any other documents and records ... that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances.” When they found an electric bill inside the truck for a separate property located at 14957 SW 59 Street in the name of Malavy Estrada, who was not present at the first property, this bill could properly be considered as one that would “lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances.” The relevance of that electric bill became more apparent when the officers also properly search for and found receipts for payment of the second property’s electric bill within Martinez’s wallet.

In addition, the search warrant properly included the premises and curti-lage and “any vehicles and/or temporary structures within the curtilage.” A vehicle found on the premises is considered included within the scope of a warrant authorizing a search of that premises if the objects of the search might be located in a vehicle. See State v. Ferris, 623 So.2d 752, 753 (Fla. 2d DCA 1993); State v. Musselwhite, 402 So.2d 1235, 1237-38 (Fla. 2d DCA 1981).

As to the search of the mailbox, the mailbox was clearly within the curtilage and was included in the premises to be searched pursuant to the search warrant. The scope of a lawful search of a fixed premises pursuant to a warrant extends to the entire area in which the object of the search may be found. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). This includes the authority to search through any containers that would reasonably contain the items specified in the warrant. Id. at 809, 102 S.Ct. 2157. See also Jackson v. State, 18 So.3d 1016, 1027-29 (Fla.2009) (trial court correctly determined that a locked safe in a motel room may be opened if the items specified in the search warrant could reasonably be concealed in that location). Accordingly, the search of the home’s mailbox was also proper.

Moreover, as in Frank, the incriminating nature of the utility bills may not have been immediately apparent, but the officers had been given the right to seize any documents that would lead to the identification of persons responsible for the unlawful possession of controlled substances. These bills satisfied this requirement, which became readily apparent when Martinez’s wallet also contained a receipt for payment of an electric bill for the second property.

We thus reverse the trial court’s order granting Martinez’s motion to suppress evidence.

Reversed and remanded.

      . Although the Ninth Circuit Court of Appeals does not permit citing its unpublished opinion within its jurisdiction, see 9th Cir. R. 36-3, and case law from federal circuit courts is not binding on state courts, see State v. Dwyer, 332 So.2d 333, 335 (Fla.1976), we find this opinion persuasive.


text:
    Jamel Ra Shaud WESCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1827.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Jamel Ra Shaud Wescott, challenges his convictions and sentences for grand theft, burglary of a structure, and criminal mischief on multiple grounds. As properly conceded by the State, the trial court reversibly erred in failing to conduct a Richardson hearing when the State failed to disclose relevant evidence until the second day of the trial, in denying Appellant’s request to recall two witnesses to question them about this new evidence, and in questioning the jury about whether Appellant’s booking sheet, which was located in the jury room without being admitted into evidence, influenced its verdict in this case. Accordingly, we reverse Appellant’s convictions and remand for a new trial. We affirm all other issues raised on appeal without further discussion.

REVERSED and REMANDED.

DAVIS, PADOVANO, and ROWE, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).