author: PALMER, J.

text:
    Scott WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2608.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.
    Rehearing Denied Feb. 29, 2012.
    Chandler R. Muller of Muller & Som-merville, P.A., Winter Park, and David A. Henson of David A. Henson, P.A., Bre-vard, NC, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

PALMER, J.

We deny Scott Wheeler’s motion for rehearing; however, we withdraw our previous opinion issued on October 21, 2011, and substitute the following opinion in its stead.

Scott Wheeler (defendant) appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of driving under the influence causing death to a human being (DUI manslaughter). Determining that no showing of reversible error has been made, we affirm. However, we write to address one of the claims of error raised by the defendant.

The defendant argues that the trial court erred in the manner in which it weighed the evidence presented during his pretrial suppression hearing. Specifically, he maintains that, in issuing its verbal ruling, the trial court stated that the standard for reviewing the defendant’s suppression motion was as follows:

The trial court must view the evidence in a light most favorable to the prosecution unless the testimony is implausible or incredible as a matter of law.

In so ruling, the trial court cited to State v. Johnson, 695 So.2d 771 (Fla. 5th DCA 1997). The defendant contends that, contrary to the trial court’s verbal statement, during suppression hearings trial courts must weigh the evidence based on the totality of the circumstances, without having any favoritism toward the prosecution. To support this claim, he cites to Lewis v. State, 979 So.2d 1197, 1200 (Fla. 4th DCA 2008). We agree that Lewis properly sets forth the standard to be used by trial courts when ruling on a motion to suppress. See also State v. Littles, 68 So.3d 976 (Fla. 5th DCA 2011). Therefore, we have reviewed this appeal en banc in order to recede from the language in Johnson.

However, we reject the defendant’s claim that the trial court’s error constitutes reversible error because the instant record demonstrates that, as the State aptly notes in its brief, no objection was raised by the defendant during the suppression hearing regarding the trial court’s reliance on the Johnson standard of review. As such, this claim of error has been waived for purposes of appellate review. See Harrell v. State, 894 So.2d 935 (Fla.2005) (explaining that, to properly preserve an issue for appellate review, a defendant must make a timely, specific objection). Furthermore, the defendant did not raise a claim of fundamental error relating to this issue in his initial brief; therefore, this court is not required to undertake a fundamental error analysis. See Fike v. State, 4 So.3d 734, 739 (Fla. 5th DCA 2009) (noting that the burden is on the appellant to demonstrate fundamental error); Williams v. State, 845 So.2d 987 (Fla. 1st DCA 2003) (holding that defendant failed to preserve claim of fundamental error where he did not raise issue until he filed reply brief). See also Sampson v. State, 903 So.2d 1055, 1058-59 (Fla. 2d DCA 2005) (Altenbernd, J., concurring).

AFFIRMED.

ORFINGER, C.J., GRIFFIN, SAWAYA, MONACO, TORPY, LAWSON, EVANDER, COHEN and JACOBUS, JJ., concur.

      . See. § 316.193(3)(c)3.a., Fla. Stat. (2008).


source: Caselaw Access Project

author: FERNANDEZ, J.

license: Public Domain

text:
    I.B., by and through his next friend and parent, R.B., Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 3D11-596.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Rehearing Denied May 11, 2012.

      Christopher T. White, for appellant.
    Tracy Lee Cooper, for appellee.
    Before SHEPHERD, LAGOA, and FERNANDEZ, JJ.
   FERNANDEZ, J.

I.B. appeals the final order of the Florida Department of Children and Families’ Office of Appeal Hearings, affirming the Agency for Health Care Administration’s decision to reduce Medicaid-funded personal care assistance hours based on a Medicaid regulation in Florida that prohibits the hours be used for transporting recipients. We reverse and remand, concluding that the hearing officer erroneously relied upon an incorrect and inapplicable rule from the Florida Administrative Code to determine medical necessity and that the final order was not supported by competent, substantial evidence.

I.B. is five years-old. He is autistic, non-verbal, and requires assistance with activities of daily living (ADL) including meal preparation, feeding, dressing, hygiene, and incontinence care/diaper changes. He lives with his mother, R.B., and five year-old sister. I.B. attends school on weekdays and Medicaid-paid one-hour speech and occupational therapy sessions Monday through Thursday.

In July 2010, I.B.’s pediatrician, Dr. Valeria Salinas-Sanchez, signed an order for I.B. to receive home health services, including “unskilled nursing for personal care assistance and t<3 assist with ADL.” Her order recommended six hours a day, Sunday through Friday, and thirteen hours on school holidays for one-hundred eighty days. I.B. is eligible for Medicaid and the single state agency in Florida for administering Medicaid is the Agency for Health Care Administration (“AHCA”). Keystone Peer Review Organization South (“KePRO”) is contracted by AHCA to review incoming prior authorization requests.

On October 12, 2010, a board-certified, Florida-licensed physician consultant under contract with KePRO determined that I.B.’s personal care assistance (“PCA”) hours should be limited to four hours Monday through Friday, six hours on Sunday, and eleven hours on school holidays (denying hours to, from, and during I.B.’s therapy sessions). I.B. exercised the right to a re-consideration by a second KePRO physician consultant. On November 13, 2010, the second physician reduced I.B.’s PCA hours to two hours Monday through Thursday, three hours on Friday, and eight hours on school holidays (denying the hours to, from, and during I.B.’s therapy sessions; and denying R.B.’s Sunday church and work hours). I.B. exercised the right to a Fair Hearing on the matter.

On December 16, 2010, Hearing Officer Robert Akel from the Department of Children and Families Office of Appeal Hearings presided over the hearing and placed the burden of proof on AHCA. The hearing officer affirmed the second KePRO physician consultant’s hours, citing testimony and evidence presented by Dr. Jeffrey N. Nathanson (KePRO’s medical director for Florida operations) and Nurse Savia Smith (AHCA’s representative). The two expert witnesses presented a mixture of confusing and erroneous testimony, to which AHCA has conceded, and those statements are directly related to the hearing officer’s ruling.

The hearing officer relied upon a mixture of Florida Administrative Code Rules, relying on Florida Administrative Code Rule 59G-1.010, which defines “medical necessity.” He also relied on Florida Administrative Code Rule 59-G-4.290, which discusses skilled services. The hearing officer’s denial of I.B.’s hours is the subject of this appeal.

We first address the law upon which the hearing officer relied to determine that I.B. was not entitled to the hours requested. I.B.’s pediatrician recommended unskilled nursing services for his PCA hours. The hearing officer, however, reviewed an unskilled PCA recommendation using the skilled nursing medical necessity standard. The hearing officer should have applied the standard of care for PCA, as defined in the Florida Medicaid Home Health Services Coverage and Limitations Handbook, incorporated into law through Florida Administrative Code Rule 59G-4.130. The application of this correct standard would have resulted in the reversal of AHCA’s denial of LB.’s PCA hours because I.B. met the medical necessity requirements. Thus, the hearing officer erred in his application of the law and determination that I.B. was not entitled to the PCA hours requested.

Next, we turn to the issue of whether the agency’s determination was based upon competent substantial evidence. An administrative agency’s findings of fact are subject to a competent, substantial evidence review; while findings that are interpretations of relevant law are subject to a de novo review. Jacoby v. Bd. of Med., 917 So.2d 358, 359 (Fla. 3d DCA 2005). Although courts typically uphold agency decisions that are supported by competent, substantial evidence, no deference is due an error of law. C.F. v. Dep’t of Children & Families, 934 So.2d 1, 5 (Fla. 3d DCA 2005).

In C.F., an autistic, disabled nine year-old had his PCA hours reduced when it was discovered that some of the hours were used for transportation to and from his different therapies and services. Id. at 4-5. The hearing officer improperly applied more restrictive definitions of medical necessity and personal care assistance that violated federal Medicaid law. Id. at 5. This Court reversed and remanded, finding that states are required to cover Early Periodic Screening, Diagnosis, and Treatment (“EPSDT”) services for all Medicaid-eligible minors under age twenty-one. Federal and state EPSDT mandates provide “necessary health care, diagnostic services, treatment, and other measures [... ] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” Id. See also § 409.905(2), Fla. Stat. (2011). This Court ordered the department to coordinate C.F.’s transportation to and from his various therapies at no cost to him. Id. at 7.

I.B.’s disabilities and circumstances are nearly identical to those of C.F. Like C.F., I.B. is a Medicaid-eligible minor that requires assistance with ADL, conditions where his parent cannot provide transportation to therapy sessions and services, and his Medicaid administration agency reducing hours based on overly restrictive state protocol. Although the handbook may not cover transportation to and from I.B.’s therapy sessions, he would receive those services as a Medicaid-eligible minor under the EPSDT regulations. Id. at 2. However, the EPSDT regulations were never mentioned at the Fair Hearing. AHCA has conceded that its witnesses’ testimony applied erroneous criteria to justify denying I.B.’s PCA hours. By AHCA’s own admission, its expert witnesses failed to provide competent, substantial evidence at the hearing.

Furthermore, the hearing officer claimed that his ruling was based partly on Dr. Nathanson’s testimony that I.B.’s claim was moot because AHCA had changed its approach to caring for autistic children. This contradicts AHCA’s assurance that it is not changing rules regarding Medicaid Home Health Services or personal care services to autistic children. Also, Dr. Nathanson mistakenly gave testimony regarding an irrelevant waiver program. I.B. never enrolled in a waiver program.

Consequently, the hearing officer’s final order was not predicated on competent, substantial evidence, but rather on misleading and mistaken testimony on issues of law and protocol from AHCA’s and Ke-PRO’S representatives. AHCA has conceded this point.

In conclusion, the hearing officer erroneously relied upon an incorrect and inapplicable rule to determine medical necessity. Furthermore, competent, substantial evidence does not support the hearing officer’s determination. For these reasons, we reverse the decision of the hearing officer. AHCA is ordered to provide I.B. with six hours per day of personal care assistance services Sunday through Friday and thirteen hours of personal care assistance services on school holidays.

Reversed and remanded with directions.

      .Florida Administrative Code Rule 59G-1.010(166) defines medical necessity, in pertinent part, as follows:
      (166) “Medically necessary” or "medical necessity” means that the medical or allied care, goods, or services furnished or ordered must:
      (a) Meet the following conditions:
      1. Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;
      2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs;
      3. Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;
      4. Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and
      5. Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.

        See Fla. Admin. Code R. 59G-1.010(166X2003).

      .Florida Administrative Code Rule 59G-4.290(3)(b) describes the criteria that must be met to qualify for skilled nursing care as follows:
      1. Ordered by and remain under the supervision of a physician;
      2. Sufficiently medically complex to require supervision, assessment, planning, or intervention by a registered nurse;
      3. Required to be performed by, or under the direct supervision of, a registered nurse or other health care professionals for safe and effective performance;
      4. Required on a daily basis;
      5. Reasonable and necessary to the treatment of a specific documented illness or injury; and
      6. Consistent with the nature and severity of the individual's condition or the disease state or stage.

      .The Home Health Handbook describes PCA services as that which “provide medically necessary assistance with activities of daily living that support a recipient’s medical care needs.” See Florida Medicaid Home Health Services Coverage and Limitations Handbook (July 2008), pp. 2-22.

      . To ameliorate these errors, AHCA in its Answer Brief has volunteered to raise I.B.’s PCA hours to three and one-half hours Monday through Thursday, four hours on Friday, and thirteen hours on school holidays. However, this is inconsistent with what I.B.’s pediatrician ordered.


author: SUAREZ, J.

text:
    CRESTVIEW II, LTD., etc., Marsol One LLC, etc., and Marcial Solis, Appellants, v. TOTALBANK, etc., Appellee.
    No. 3D11-1768.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.

      Harry A. Payton and Teresa J. Urda; Tew Cardenas and Dexter Lehtinen, Miami; Steven M. Peña, for appellants.
    Berger Singerman, and Charles H. Lichtman and Jeffrey S. Wertman, Fort Lauderdale, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Crestview II, Ltd., Marsol One LLC, and Marcial Solis (“Crestview”) appeal a non-final order granting an amended order to appoint receiver in favor of TotalBank. We have jurisdiction. Fla. R.App. P. 9.130(a)(3)(D); Interdevco, Inc., v. Brickellbanc Savs. Ass’n, 524 So.2d 1087 (Fla. 3d DCA 1988). We affirm the non-final order below appointing receiver as the order complies with the authority given To-talBank in the loan documents executed by Crestview.

TotalBank loaned approximately $32,000,000 to Crestview, a real estate developer, for a residential development. The promissory note executed by Crest-view in favor of TotalBank incorporated other loan documents and instruments including a construction loan agreement and amendment. The construction loan agreement provided that TotalBank had the right to complete construction in the event of default, including the right to perform all work and labor to complete improvements, to employ contractors and subcontractors and to apply for permits. Crest-view defaulted on its obligation under the promissory notes and mortgages. Total-Bank sued Crestview for breach of promissory notes, guarantees and the assignment of rents, and to foreclose its security interests.

In accord with the mortgages, which provided for appointment of a receiver and assignment of rents in favor of TotalBank, on August 9, 2010, TotalBank served an amended verified motion to appoint receiver and for turnover of rents. In seeking the appointment of the receiver, TotalBank relied upon paragraph 2.05 of the Crest-view mortgages, which provided that, in the event of default, “[mjortgagee shall be entitled, as a matter of right and without regard to the value or occupancy of the security, to have a receiver appointed to enter upon and take possession of the Mortgaged Property, collect the rents and profits therefrom and apply the same as the court may direct, such receiver to have all the rights and powers permitted under the laws of Florida.”

At the evidentiary hearing on the appointment of receiver which followed, the evidence revealed that the fair market value of the Crestview property was significantly less than the outstanding indebtedness owed to TotalBank; that Crestview failed to pay the real estate taxes for the property since 2008; that there was some physical damage and neglect to the property; that there were outstanding federal tax liens against the property; and that the Crestview property consisted of homes that were approximately 80% complete and eight lots upon which slabs had been constructed. The trial court granted Total-Bank’s motion to appoint receiver for the reasons stated in its order. Paragraphs 9, 10(c), (h), (j), (l) and (m) of the order are the subject of this appeal.

On appeal, Crestview challenges the authority of the trial court to appoint the receiver with powers designated in paragraphs 9, 10(e), (h), (j), © and (m) of the trial court’s order. It contends that these powers exceed the scope of a receiver’s authority in a mortgage foreclosure proceeding. We do not agree. We find that the authority of the receiver, as referred to in the order appointing receiver, in effect, are one and the same as the duties already having been designated to TotalBank in the agreed-to notes, mortgages, and construction loan agreements themselves and were properly within the purview of the appointed receiver, related to keeping the value of the property from declining and to preserving the status quo. See Interdevco, Inc. v. Brickellbanc Sav. Ass’n, 524 So.2d at 1087. We therefore affirm the .trial court’s order.

Affirmed.

      . ORDER GRANTING PLAINTIFF TOTAL-BANK’S AMENDED VERIFIED MOTION TO APPOINT RECEIVER AND FOR TURNOVER OF RENTS

      THIS CAUSE came before the Court for hearing on April 20, 2011 and April 21, 2011 upon Plaintiff TotalBank's Amended Verified Motion to Appoint Receiver and for Turnover of Rents (the "Motion”). The Court has reviewed the Motion, all filings related to the Motion, the Court file, and applicable case law. The Court further conducted a two-day evidentiary hearing, observed the demeanor and credibility of the witnesses, heard argument of counsel, and being otherwise fully advised, the Court finds:
      1. The subject promissory notes executed by Defendants, Crestview II, Ltd. ("Crestview”), and Marsol One, LLC ("Mar-sol"), in favor of TotalBank, matured in 2008 and were not paid at or at any time after maturity. Therefore, Crestview and Marsol defaulted on their obligations under the promissory notes and mortgages.
      2. The subject Crestview and Marsol mortgages both provide for the appointment of a receiver and an assignment of rents in favor of TotalBank. Mortgage provisions consenting to the appointment of a receiver on default, like the provision in this case, are to be accorded due weight. Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241 (1930). The parties also entered into separate enforceable written assignment of lease agreements for Crestview and Marsol.
      ORDERED AND ADJUDGED:
      1. The Motion is hereby GRANTED.
      2. Appointment. Tony Palumbo of Shores Development Group is hereby appointed Receiver (the "Receiver”) of all of the real and personal property, together with all improvements, which real property is described in the Second Amended Complaint and is the subject of:
      9. Possession and Turnover of Property, Books, Records and Data. The Receiver shall immediately take possession of and Defendants and their respective officers, directors, shareholders, members, employees, accountants, representative and agents, including Steven Pena, Esq., shall immediately turnover to Receiver all the books, records, ledgers, assets, files, papers, contracts, leases, documents, data, insurance policies and certificates, plans, specifications and drawings, monies, deposits, rents, profits, securities, accounts, keys, pass codes, computers, hard drives, portable media devices, software disks, electronic mail, electronic mail accounts, and all other property, real, personal or mixed, in the possession, custody or control of Crestview and Marsol One, relating directly or indirectly, to the operation and maintenance of the Properties, the Properties themselves, the operations of Crestview or Marsol, and any other matter not specifically described in this Order, but which is reasonably necessary for the Receiver to perform his duties as described herein, and shall retain custody of all such property, records and documents until further order of this Court.
      10. Specific Powers and Duties of Receiver. Subject to any restrictions set forth herein, Receiver is hereby empowered, directed and authorized by this Court to act on its behalf as Receiver of the Properties, and to do any and all things necessary for the proper operation, preservation, maintenance, protection, conservation and administration of the Properties, including, but not limited to, the following:
      (c) Property Maintenance and Repair. The Receiver shall maintain the buildings, appurtenances and grounds of the Properties substantially in marketable condition, making such repairs and renovations as are necessary and appropriate to ensure the life, health and safety of any persons on the property, but only to the extent the Receiver determines, after consultation with Total-Bank, that such repairs and renovations are economically feasible and in the best interest of the Properties.
      (h) Major Repairs and Improvements. The receiver, with the written consent of TotalBank, has the authority to complete the construction of the substantially completed (and unoccupied) home, located at 16371 S.W. 60th Terrace on the Crestview Property, and hire such professionals and contractors as may be necessary to accomplish the same. The Receiver shall not incur any obligation for major repairs, improvements, additions or alterations of the Properties requiring expenditures in excess of $5,000.00 without prior order of this Court or a written stipulation of TotalBank.
      (j) Service Contract. The Receiver shall not enter into any service contracts relating to the Properties having a term which cannot be cancelled (without premium or penalty), upon the termination of the receivership or upon thirty (30) days’ notice, whichever is earlier, or for a total compensation of more than $5,000.00, except with prior order of this Court or a written stipulation of TotalBank. In submitting all such service contracts to the Court for its approval or to TotalBank, the Receiver shall disclose any affiliate relationship, or pecuniary interest, that he may have with or in such contracting party.
      (Z) Permits, Approvals, Entitlements. The Receiver has the authority to apply for any permits, licenses, plats, tentative plats, registrations, approvals, permissions, extensions, renewals, concurrencies or entitlements for the Properties as for and on behalf of and in the name of Crestview or Marsol.
      (m) Crestview II Community Development District. The Receiver has the authority to act for and on behalf of Crestview in matters involving the Crestview II Community Development District ("CDD”), including, but not limited to, executing agreements and documents to convey to Lake Tract "A”, as identified on the Rivendall East (Plat Book 165, Page 64), and certain fountain improvements located in the two lakes with the CDD's boundaries, to the CDD, with the express written consent of Total-Bank.

      . Crestview's challenge to paragraph 9 of the trial court’s order may be resolved upon remand by way of a motion for protective order and an in camera inspection, including a privilege log, for determination by the trial judge of which records, if any, are subject to production.


author: SAWAYA, J.

text:
    Paul L. HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-234.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    Rehearing and Rehearing En Banc Denied May 10, 2012.
    Paul L. Henderson, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   SAWAYA, J.

We affirm the trial court’s summary denial of Defendant’s Motion to Correct Illegal Sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). However, we remand this case to the trial court to strike the sentence imposed for Count II because Defendant was acquitted of the charges alleged in that count. The sentence imposed in the sentencing order attached to the judgment of conviction is an obvious scrivener’s error that should be corrected.

AFFIRMED and REMANDED.

GRIFFIN and PALMER, JJ., concur.


author: POLEN, J.

text:
    ELSTON/LEETSDALE, LLC, a Delaware limited liability company, Appellant, v. CWCAPITAL ASSET MANAGEMENT LLC, solely in its capacity as Special Servicer on behalf of U.S. Bank, N.A., Successor to State Street Bank and Trust Company, as Trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Mortgage Pass-Through Certificates, Series 2001-C1BC1, Appellee.
    No. 4D11-3151.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.

      Mitchell W. Berger and Anthony J. Car-riuolo of Berger Singerman, P.A., Fort Lauderdale, for appellant.
    Joseph E. Foster and Carrie Ann Wozniak of Akerman Senterfitt, Orlando, and Joan Levit of Akerman Senterfitt, Fort Lauderdale, for appellee.
   POLEN, J.

Elston/Leetsdale, LLC (Elston) appeals the trial court’s non-final order, requiring it to make payments to CWCapital Asset Management LLC, solely in its capacity as special servicer on behalf of U.S. Bank, N.A., successor to State Street Bank and Trust Company, as trustee for the Registered Holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Mortgage Pass-Through Certificates, Series 2001-C1BC1 (CW) during the pendency of the action. Because CW did not properly plead standing, we reverse.

The facts are as follows. Elston executed a promissory note as evidence of a loan made by First Union National Bank; to secure payment, Elston executed a mortgage and security agreement, along with an assignment of leases and rents. First Union assigned its rights in the loan documents to Morgan Guaranty Trust Company of New York, which then assigned its right, title and interest in the loan to State Street Bank and Trust Company, as Trustee for J.P. Morgan Chase Commercial Mortgage Securities Corp., Series 2001-C1BC1 (the trust). Presently, the trust is the current owner and holder of all the loan documents subject to this appeal.

CW, the special servicer for the trust, filed a verified complaint, in its own name, for foreclosure. The complaint alleged that Elston defaulted on the loan, and the trust elected to accelerate and declare immediately due and owing the entire unpaid principal balance together with accrued interest. In response to CW’s motions, the trial court ordered Elston to show cause as to why payments should not be made during the pendency of the foreclosure action. Elston then moved to dismiss the complaint, arguing that CW failed to properly allege standing to pursue enforcement of the security instruments. CW argued that it had standing to bring the foreclosure action because it is duly authorized by the trust to do so and, as special servicer for the loan, it is entitled to take all required action to protect the interests of the trust. After a hearing, the trial court entered a payment order, requiring Elston to pay CW $42,404.91 per month during the pen-dency of the action. This appeal followed.

Elston argues that the trial court erred by ordering it to make payments to CW because CW failed to properly allege standing. CW argues that Elston has not furnished a sufficient record for this court to review the trial court’s ruling. On the merits, CW argues that, as agent and special servicer to the trust, which owns the loan documents at issue, it has standing to foreclose.

“Whether a party is the proper party with standing to bring an action is a question of law to be reviewed de novo.” FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So.3d 905, 909 (Fla. 4th DCA 2010) (quoting Westport Recovery Corp. v. Midas, 954 So.2d 750, 752 (Fla. 4th DCA 2007)).

Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.

Fla. R. Civ. P. 1.210(a). “In its broadest sense, standing is no more than having, or representing one who has, ‘a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.’ ” Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178, 1182 (Fla. 3d DCA 1985) (quoting Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)).

In the mortgage foreclosure context, “standing is broader than just actual ownership of the beneficial interest in the note.” Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007). “The Florida real party in interest rule, Fla. R. Civ. P. 1.210(a), permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest.” Id. (quoting Kumar, 462 So.2d at 1183). “Thus, where a plaintiff is either the real party in interest or is maintaining the action on behalf of the real party in interest, its action cannot be terminated on the ground that it lacks standing.” Kumar, 462 So.2d at 1183. See also BAG Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010) (“The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative.”).

In securitization cases, a servicer may be considered a party in interest to commence legal action as long as the trustee joins or ratifies its action. In re Rosenberg, 414 B.R. 826, 842 (Bankr.S.D.Fla.2009) (emphasis added). In CWCapital Asset Management, LLC v. Chicago Properties, LLC, 610 F.3d 497 (7th Cir.2010), the Seventh Circuit found that CW, as a special servicer to a loan, had standing to bring an action in its own name against a mortgagor and landlord for money paid by a tenant in settlement of a suit for unpaid rent. Id. at 499-500. Significantly, however, in opposition to the defendant’s motion for judgment on the pleadings (based on CW’s lack of standing), CW filed an affidavit of the trustee, which was not contradicted, ratifying the servicer’s (CW’S) commencement of the lawsuit. Id. at 502 (emphasis added). Additionally, the pooling and servicing agreement was placed in evidence as additional evidence that CW’s principal granted CW authority to enforce the debt instruments that CW neither owned nor held. Id. at 501.

In Juega v. Davidson, 8 So.3d 488 (Fla. 3d DCA 2009), relied on by the trial court, the Third District reversed an order of dismissal for lack of standing, finding that because the plaintiff was an agent who had been granted full authority to act for the real party in interest, there was no violation of rule 1.210(a). Id. at 489. However, in Juega, there was evidence in the trial court that the agent/plaintiff had been granted full authority to act on the real party in interest’s behalf: The real party in interest filed an affidavit in opposition to the motion to dismiss for lack of standing, averring that Juega was pursuing the litigation for the real party in interest’s benefit and ratifying all actions taken by Juega since the inception of the lawsuit. Id. at 489. Finding the affidavit filed by the real party in interest to be indistinguishable from the affidavit filed by the principal in Kumar, the Third District held that “the facts stated in [the affidavit] establish that the agent, Juega, has standing.” Id. at 490 (emphasis added).

Here, the caption of the verified complaint states that the underlying action is brought by CW “solely in its capacity as special servicer on behalf of U.S. Bank, N.A.” In the complaint, CW alleges, and verifies as true, that it “has been and is duly authorized by the Trust- to prosecute this action as agent and special servicer for the Trust.” However, CW did not file any evidence, affidavits or other documents, supporting its allegation that it was authorized to prosecute the action on behalf of the trust, as was done in Kumar, Juega and Chicago Properties. Although CW’s complaint is verified, it is verified by the “SVP” for CW — not by the real party in interest, the trust. CW relies on nothing more than its own allegations and affidavit to support its argument that it has standing to sue on behalf of the trust. This is insufficient evidence to prove that it is authorized to sue on the trust’s behalf.

We affirm on the other issue raised by-Elston, as we find that the trial court properly determined that CW was not required to register as a commercial collection agency or as a licensed mortgage broker under Chapters 559 and 494, Florida Statutes.

Reversed and Remanded.

TAYLOR and HAZOURI, JJ., concur.

      . The transcript of the payment order show cause hearing is not part of the record on appeal.

      . CW argues that because the payment order show cause hearing was not transcribed and because Elston has not proposed a stipulated statement of what occurred at the hearing, this court must affirm. We disagree, as the issues raised in this appeal can be decided on the merits without the transcript of the hearing.


author: WARNER, J.

text:
    CITY OF RIVIERA BEACH, a Municipal Corporation of the State of Florida, and Riviera Beach Community Redevelopment Agency, Appellants, v. RIVIERA BEACH CITIZENS TASK FORCE, a political committee, Emma Bates, in her capacity as chairperson of the political committee, and Susan Bucher, in her official capacity as Palm Beach County Supervisor of Elections, Appellees.
    Nos. 4D10-4770, 4D10-4813.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.

      Christy L. Goddeau and Glen J. Torcivia of Law Offices of Glen J. Torcivia & Associates, P.A., West Palm Beach, for appellant City of Riviera Beach.

      Leonard G. Rubin of Leonard G. Rubin, P.A., West Palm Beach, for appellant Riviera Beach Community Redevelopment Agency.
    Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, for appellee Susan Bucher.
    Andrew Degraffenreidt, III, West Palm Beach, for appellees Riviera Beach Citizens Task Force, Inc. and Emma Bates.
   WARNER, J.

The City of Riviera Beach and the Riviera Beach Community Redevelopment Agency appeal from a final judgment of the trial court allowing a charter question to appear on the ballot for the November 2, 2010 general election to ask voters whether the city’s charter should be amended. The appellants claim that the ballot language was ambiguous; that the question was placed on the ballot in violation of section 101.161(1), Florida Statutes, which requires the council to pass an enabling resolution, which the council did not vote affirmatively to do; and that the ballot question was unconstitutional because it was in violation of section 163.3167(12), Florida Statutes, which prohibits a referendum process involving a comprehensive land use change affecting five or fewer parcels of land. We affirm on all issues, finding that the ballot language is not ambiguous; that the city’s stipulation that the city council approved by motion the placement of the referendum on the ballot satisfied its ministerial duty pursuant to section 101.161(1); and that the ballot did not involve a comprehensive plan amendment, rendering section 163.3165(12) inapplicable.

Riviera Beach Citizens Task Force and Emma Bates organized a petition to amend the City’s charter by referendum. They proposed changing Article VII, section 3.5 of the City’s charter by adding the following underlined language:

The city’s municipal marina shall not be sold. However, the city council may enter into management, license or lease agreements with marina users and/or outside operators for a term of not more than 50 years in order to facilitate marina activities, use or operations and to provide that the use of dedicated submerged] public lands be limited to municipal park and recreational purposes according to the terms State of Florida Dedication No. 2UU38-A (2725-50) by the Board of Trustees of the Internal Improvement Fund, to include the Marina and public Municipal Marina properties, Newcomb Hall, Bicentennial Park, and Spanish Court shall be owned, managed, and operated solely by the City of Riviera Beach for municipal and public uses; the use of the manna shall not be changed to industrial commercial, to include an industrial commercial boat repair operation.

The Task Force obtained a sufficient number of signatures on the petition and sought to have the issue included on the ballot on the November 2, 2010 general election. The ballot summary to be placed on the ballot read:

AMENDMENT TO CITY MARINA PROPERTY
Shall The City Of Riviera Beach Charter Be Amended To Provide That The Use of Dedicated Submerged Public Lands At The City Marina Remain Limited To Municipal Park And Recreational Purposes According To Florida Dedication No 24438-A; (2725) the Municipal Marina Properties, Newcomb Hall, Bicentennial Park, And Spanish Court Shall Be Owned, Managed, And Operated Solely By the City Of Riviera Beach; The Municipal Marina Properties Shall Not Permit Industrial Commercial Boat Repair Operations?

The Supervisor of Elections filed a certification with the City asserting that the Task Force’s petition was in accordance with section 166.031(1). The City Clerk presented the initiative to the City Council but did not request a resolution, because it was her opinion that none was required pursuant to the statute. Nevertheless, with the approval of the council the City Clerk sent a letter to the Supervisor of Elections which acknowledged that the City Council disagreed with the language in the petition but stated that a majority have agreed to comply with section 166.031 and have the referendum placed on the ballot at the general election. The Clerk’s letter contained the proposed ballot summary from the Task Force. The supervisor received the City Clerk’s letter and placed the ballot summary and title on the ballot for the November 2, 2010 general election. On September 1, 2010, the City Council agreed by motion but without an enabling resolution to allow the amendment to be put on the ballot. The City Clerk sent a letter to the Supervisor of Elections and the Supervisor placed the Task Force’s proposed charter amendment question on the ballot.

The Community Redevelopment Agency (“CRA”), which owns Spanish Courts, filed a complaint in the circuit court seeking declaratory and injunctive relief regarding the proposed charter amendment and ballot question. Subsequently, the City also filed a similar complaint in the circuit court seeking a determination that the amendment and question were unconstitutional and invalid. The City’s and CRA’s complaints were consolidated and the trial court conducted a trial, ultimately issuing a final judgment, ruling that the proposed charter amendment and question were clear and not misleading, revealed the chief purpose of the proposed charter amendment, and thus, could appear on the ballot. The City and CRA now appeal.

We review de novo the issue of whether the ballot summary was misleading. Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000); Citizens for Term Limits & Accountability, Inc. v. Lyons, 995 So.2d 1051, 1054 (Fla. 1st DCA 2008). “[0]ur task is to determine whether the ballot language sets forth the substance of the amendment in a manner that satisfies the requirements of section 101.161, Florida Statutes....” Fla. Educ. Ass’n v. Florida Dep’t of State, 48 So.3d 694, 700 (Fla.2010).

Section 101.161(1),- Florida Statutes (2010), requires that “the substance of ... [any] ... public measure [submitted to the voters] shall be printed in clear and unambiguous language.... ” The ballot language “shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.” The purpose of this requirement is to

“advise the voter sufficiently to enable him intelligently to cast his ballot.” Askew [v. Firestone], 421 So.2d [151, 155 (Fla.1982) ] (emphasis omitted) (quoting Hill v. Milander, 72 So.2d 796, 798 (Fla.1954)). While the ballot title and summary must state in clear and unambiguous language the chief purpose of the measure, they need not explain every detail or ramification of the proposed amendment. See Carroll v. Firestone, 497 So.2d 1204, 1206 (Fla.1986). The ballot language must, however, give “the voter fair notice of the decision he [or she] must make.” Askew, 421 So.2d at 155.

Fla. Educ. Ass’n, 48 So.3d at 700.

Two questions must be asked in order to determine if the proposed language is defective: first, whether the ballot title and summary fairly inform the voter of the chief purpose of the public measure, and second, whether the language of the title and summary, as written, misleads the public. Fla. Dep’t of State v. Slough, 992 So.2d 142, 147 (Fla.2008). Only where the record shows that the ballot language is “clearly and conclusively defective” should the court invalidate the ballot question. Armstrong, 773 So.2d at 11. “A ballot title and summary cannot either ‘fly under false colors’ or ‘hide the ball’ as to the amendment’s true effect.” Id. at 16. A ballot summary must not be “affirmatively misleading.” Fla. Educ. Ass’n, 48 So.3d at 704.

Judged by the foregoing standard, the ballot summary does not mislead and cannot be said to be clearly and conclusively defective. The ballot summary informs voters of the amendment’s chief purpose. The first portion of the question limits the use of the City Marina to municipal and recreational purposes in accordance with the state dedication. The second portion requires that each of the identified properties (municipal marina properties, New-comb Hall, Bicentennial Park and Spanish Court) be owned, managed and operated solely by the City. The third portion prohibits “industrial commercial boat repair operations within the Municipal Marina Properties.” Although it might have been more artfully phrased, it does not mislead or “hide the ball” as to its intended purpose.

Most of the City’s objections involve the wording of the charter amendment itself, not the ballot summary. It too is not a model of clarity; however, it is not so ambiguous that its meaning cannot be understood, and the ballot summary provides an explanation of its purpose. As the trial court said in its final judgment, “It is not necessary to explain every detail since the summary is limited to 75 words and this summary by the Court’s cou[n]t is 74 words. It provides the voter fair notice of the proposal’s true meaning.” We agree.

As a second ground for contesting the ballot summary, the City argues that because it did not pass a resolution including the ballot summary, the amendment referendum should not have been placed on the ballot at all. It relies on section 101.161(1) as requiring it to pass a resolution before an amendment may be placed on the ballot, because the ballot title and ballot summary shall be contained within an “enabling resolution or ordinance.” However, section 166.031 describes the method by which the City and citizens may initiate a charter amendment by referendum (by ordinance or petition) and states:

The governing body of a municipality may, by ordinance, or the electors of a municipality may, by petition signed by 10 percent of the registered electors as of the last preceding municipal general election, submit to the electors of said municipality a proposed amendment to its charter, which amendment may be to any part or to all of said charter except that part describing the boundaries of such municipality.

§ 166.031(1), Fla. Stat. (2010) (emphasis added). The trial court found that section 166.031 does not require the passage of a resolution. In fact, the City Clerk maintained that she did not request a resolution from the Council, because none was necessary pursuant to section 166.031. The trial court explained:

The City’s role in this regard was ministerial, without discretion, if a resolution had been required.
“The law is well settled that a court of equity as a general rule will not restrain the holding of an election because a free election in a democracy is a political matter to be determined by the electorate and not the courts.... Limited exceptions to this rule have been recognized but only on the narrowest grounds.” E.g. Rivergate Restaurant Corporation v. Metro. Dade County, 369 So.2d 679 (Fla. 3d DCA 1979).
The Court would not be proceeding in line with this principle if it were to consider an otherwise proper referendum with proper ballot language and yet restrain the holding of this election on this basis where no enabling City Council resolution was specifically required.

The City cites Shulmister v. City of Pompano Beach, 798 So.2d 799 (Fla. 4th DCA 2001), to support its contention that section 101.161 mandates that the governing body pass a resolution before a charter amendment may be placed on the ballot. In Shulmister, a petition for charter amendment was presented to the city which passed an enabling resolution containing a ballot summary in excess of 75 words. Because the ballot summary did not comply with section 101.161(1), the supervisor of elections refused to place the amendment on the ballot. The city, however, refused to correct the ballot summary. We held that the city had a ministerial duty to supply a summary in compliance with the statute so that the amendment could be placed on the ballot.

Shulmister did not hold that an amendment proposed by citizen’s initiative could not appear on the ballot without an enabling resolution. While we said that the City had a duty to place the charter provision on the ballot for the next election, the city in Shulmister had passed an enabling resolution but with an improper ballot summary so that it was rejected by the supervisor of elections. We merely required the city to correct the mistake.

Here, the city did not pass a resolution but acceded to the submission of the amendment with the ballot summary prepared by the appellees to the supervisor of elections. Later, the council passed a motion approving the placement on the ballot but disapproving the ballot language. Although the city abdicated its responsibility to draft a ballot summary, it did permit the submission of the ballot summary drafted by the Task Force to the supervisor of elections. Had the city not submitted the provision for placement on the ballot, it would have violated its duty under section 166.031. The city cannot complain that its own failure to perform its duty can prevent the citizens from voting on the charter amendment proposal.

Finally, the appellants argue that the proposed charter amendment is invalid because it violates section 163.3167(12), Florida Statutes (2010), which provides:

An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.

The simple response to this claim is that the amendment on the ballot was not one involving a development order or a local comprehensive plan amendment or map amendment. The appellants claim that adoption of the amendment will require an amendment to the comprehensive plan, because the properties are not properly zoned for municipal or public uses. The properties mentioned in the amendment are within a “Downtown Mixed Use” category or “Working Waterfront” which is a subcategory of “Industrial and Related Uses.” Riviera Beach, FL, Ordinance 3066, Comprehensive Plan, Objective 1.8, Future Land Use (May 19, 2010). Under those categories, multiple uses are allowed, and none preclude municipal or public uses compatible with what is allowed under the current comprehensive plan. For instance, the Working Waterfront designation permits marinas. The City could operate a marina and associated facilities, which would consist of a municipal or public use and would be fully consistent with the comprehensive plan. Similarly, the Downtown Mixed Use category includes parks, marinas, and “civic” uses. We are certain that the city could figure out uses that it could own or operate to satisfy the amendment’s criteria yet comply with the comprehensive plan. Furthermore, while the “Working Waterfront” includes industrial applications of the waterfront, including commercial fishing enterprises and boat repair, it also includes marinas and waterfront restaurants. Thus, a prohibition of one use among many in that category with respect to a particular parcel would not require a plan amendment to accomplish the intent of the charter amendment on property owned by the City itself. Because the proposed amendment does not involve or require a comprehensive plan amendment, section 163.3167 is irrelevant.

The last argument we address is made by the CRA which owns one of the properties, Spanish Court. It argues that the Charter Amendment and Ballot Summary are misleading, because the City would have to condemn Spanish Court in order to own the property. The CRA was created by the City of Riviera Beach to pursue a community redevelopment plan with respect to blighted areas in the city. In accordance with section 163.357, the city council declared its own members to be the commissioners of the CRA, although the CRA is a separate legal entity. This record does not contain the terms of the CRA and the delegation of powers by the City to the CRA. Therefore, we do not know the extent of its powers. Nevertheless, on this record we cannot conclude that the City must condemn the property owned by the CRA in order to effectuate the purposes of this amendment. Section 163.400 permits cooperation between public bodies for the purposes of carrying out community redevelopment. Those provisions would appear to provide all the authority necessary to effectuate the purpose of the charter amendment.

However, we need not decide the issue of the legal status of the property owned by the CRA, because even if this may render a portion of the amendment, as applied to Spanish Court, invalid, the trial court determined that the entire amendment was not invalid:

It is not the Court’s function to decide piece meal whether certain parts of the public measure are valid or invalid. The Court is only supposed to consider the entire public measure as a whole and the referendum retains its validity unless it is shown to be clearly, convincingly and entirely invalid. Wright v. Frankel, 965 So.2d 365 (Fla. 4th DCA 2007).

(emphasis in the final judgment). We also held in Brooks v. Watchtower Bible & Tract Society of Florida, Inc., 706 So.2d 85, 90 (Fla. 4th DCA 1998), that a referendum on an ordinance should not be prevented “unless it is demonstrated that the ordinance is unconstitutional in its entirety.” Here, the appellants have not demonstrated the invalidity of each and every provision of the amendment. Thus, the trial court was correct in not restraining the electorate’s opportunity to vote on it.

For the foregoing reasons, we affirm the final judgment of the trial court.

STEVENSON and CONNER, JJ., concur.


author: PER CURIAM.

text:
    Allen F. STEWART, Appellant, v. Joe DRISCOLL, Robert Driscoll, and Driscoll’s Towing Service, Inc., Appellees.
    No. 4D10-1604.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.
    Allen F. Stewart, Fort Lauderdale, pro se.
    No brief filed on behalf of appellees.
   PER CURIAM.

Allen Stewart appeals the judgment of dismissal entered by the trial court as to defendant Joe Driscoll based on the doctrine of res judicata. “The party claiming the benefit of the former adjudication has the burden of establishing, with sufficient certainty by the record or by extrinsic evidence, that the matter was formerly adjudicated.” State St. Bank & Trust Co. v. Badra, 765 So.2d 251, 254 (Fla. 4th DCA 2000). “The doctrine of res judicata has no applicability where there was no adjudication on the merits.... ” Id. Finally, in order for res judicata to apply, there must be a “‘clear-cut former adjudication’ on the merits.” Id. (quoting Suniland Assocs. v. Wilbenka, Inc., 656 So.2d 1356, 1358 (Fla. 3d DCA 1995)) (emphasis added).

In this case, we do not find support in the record to conclude that the Final Judgment in the original, small claims matter was a clear-cut adjudication on the merits. Thus, Joe Driscoll did not meet his burden. We therefore reverse the order of dismissal.

Reversed and remanded.

CIKLIN, GERBER and LEVINE, JJ., concur.


author: ORFINGER, C.J.

text:
    CENTERSTATE BANK CENTRAL FLORIDA, N.A., Appellant, v. James A. KRAUSE and Daphney S. Krause, et al., Appellee.
    No. 5D10-4099.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2012.

      Kristie Hatcher-Bolin, Monterey Campbell, Stephen Watson, and Mark N. Miller, of GrayRobinson, P.A., Lakeland, for Appellant.
    Jill D. Simon and H. Gregory McNeill, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee.
   ORFINGER, C.J.

Centerstate Bank Central Florida, N.A. (“CSB”) appeals a final summary judgment declaring a note and mortgage given by Krause Grove Enterprises, LLC (“KGE”) to CSB to be void and of no force and effect. On appeal, CSB argues that James A. Krause and Daphney S. Krause lack standing to challenge the validity of the note and mortgage. We agree and reverse.

The Krauses owned fifteen acres of agricultural property (“Property”) that had been in their family for generations. In 2006, the Krauses entered into a joint venture with Michael Ross and Abraham Wilson to develop the Property. The Krauses claim that under the terms of the oral agreement, in exchange for the Property, they were to obtain membership in KGE. In addition, Mr. Krause was to be KGE’s chief executive, and they, along with Mr. Ross and Mr. Wilson, would share in the profits to be made as the Property was developed. The Krauses subsequently deeded the Property to KGE without consideration. However, KGE’s Articles of Organization were prepared without mention of the Krauses, instead listing Mr. Ross and Mr. Wilson as its only members.

As KGE’s managing members, Mr. Ross and Mr. Wilson executed a promissory note and mortgage in favor of CSB, encumbering five lots compi’ising a portion of the Property. At the loan’s closing, and on CSB’s request, KGE adopted a resolution certifying KGE’s existence, identifying Mr. Ross and Mr. Wilson as its only members, authorizing the two members acting together to bind KGE, and stating the resolution’s validity continued until written revocation was delivered to CSB. A year later, Mr. Ross and Mr. Wilson executed a replacement note and mortgage, again adopting an identical resolution authorizing the two members acting together to bind KGE. Days after executing the second resolution, Mr. Ross filed KGE’s annual report with the State of Florida, listing himself as KGE’s sole managing member. That same day, Mr. Ross, acting alone, applied for an additional $700,000 loan from CSB, secured by a mortgage encumbering the entire Property (collectively, “Development Loan”). CSB approved the Development Loan, and the financing documents, executed solely by Mr. Ross, included a new resolution certifying KGE’s existence and representing that Mr. Ross, as sole managing member, was now authorized to bind KGE.

After becoming aware of the Development Loan, the Krauses filed suit against Mr. Ross and KGE, claiming breach of contract and fraud in the inducement regarding the Property’s transfer. They sought the imposition of a constructive trust and equitable lien on the Property. The Krauses also recorded a lis pendens affecting the entire Property.

KGE subsequently defaulted on both outstanding loans. CSB filed a complaint against KGE, seeking to foreclose the Development Loan. The Krauses were named as defendants in the foreclosure complaint because of their recorded lis pendens against the Property. The Krauses filed an answer and counterclaim to CSB’s foreclosure action, seeking a declaration that the Development Loan was void because it had been executed solely by Mr. Ross who, they alleged, lacked the authority, acting alone, to bind KGE. CSB moved for summary judgment, asserting that the Krauses lacked standing to challenge the enforceability of the Development Loan. The Krauses also moved for summary judgment, again challenging Mr. Ross’s authority to execute the Development Loan. The trial court denied CSB’s summary judgment motion, finding that the Krauses had standing and granted the Krauses’ motion for summary judgment declaring the Development Loan void and unenforceable, finding that Mr. Ross lacked the authority to borrow money and encumber property on KGE’s behalf. This appeal followed.

Orders on standing are reviewed de novo. Putnam, Cnty. Envtl. Council, Inc. v. Bd. of Cnty. Comm’rs of Putnam Cnty., 757 So.2d 590, 594 (Fla. 5th DCA 2000). To have standing, a party must demonstrate a direct and articulable interest in the controversy, which will be affected by the outcome of the litigation. Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006); Brown v. Firestone, 382 So.2d 654, 662 (Fla.1980); Wheeler v. Powers, 972 So.2d 285 (Fla. 5th DCA 2008). Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest that would be affected by the outcome of the litigation. Gieger v. Sun First Nat’l Bank of Orlando, 427 So.2d 815, 817 (Fla. 5th DCA 1983). The interest cannot be conjectural or merely hypothetical. Punsky v. Clay Cnty. Bd. of Cnty. Comm’rs, 60 So.3d 1088, 1092 (Fla. 1st DCA 2011); Peregood v. Cosmides, 663 So.2d 665, 668 (Fla. 5th DCA 1995). The issue of whether a party has standing in a particular action is not subject to a blanket rule, but, instead, requires examination of the asserted interest. See Hayes, 952 So.2d at 505 (“[Sjtanding to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted.”).

The Krauses posit that the lis pendens they filed and recorded on the Property gives them standing to challenge the validity of the Development Loan to which they are otherwise strangers. We disagree. “Lis pendens” literally means a pending lawsuit, and is defined as the jurisdiction, power, or control that courts acquire over property involved in a pending suit. Adhin v. First Horizon Home Loans, 44 So.3d 1245, 1251 (Fla. 5th DCA 2010). The lis pendens mechanism is not designed to aid either side in a dispute; instead, the purpose of a notice of lis pen-dens is to notify third parties of pending litigation and protect its proponents from intervening liens that could impair or extinguish claimed property rights. Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993); Adhin, 44 So.3d at 1251-52; Avalon Assocs. of Del. Ltd. v. Avalon Park Assocs., Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000). Standing to record a lis pendens only requires a complaint that supports a claim against the specific property. Tortu v. Tortu, 430 So.2d 531, 532 (Fla. 4th DCA 1983). On the other hand, standing to contest the validity of a mortgage belongs to the mortgagor and to third persons whose rights or interests are adversely affected by the mortgage, such as junior mortgagees or creditors with an interest or lien in the underlying property. See Jamnadas v. Singh, 731 So.2d 69 (Fla. 5th DCA 1999) (reversing dismissal where property owners allege mortgages on their property were forgeries, and thus, void); Stockton Sav. & Loan Soc. v. Saddlemire, 3 Cal.App. 525, 86 P. 723 (1906); Lafitte v. Gigliotti Pipeline, Inc., 624 So.2d 844, 845 (Fla. 2d DCA 1993) (finding lienholder had standing to contest mortgage holder’s priority where mortgage incorrectly described underlying property); New York Life Ins. and Annuity Corp. v. Hammocks Cmty. Ass’n, Inc., 622 So.2d 1369 (Fla. 3d DCA 1993); Roy v. Enter. Bldg. Corp., 561 So.2d 341, 343 (Fla. 2d DCA 1990) (upholding validity of mortgage complained to be void by party with competing property interest); see also Murray v. United States, 15 Cl.Ct. 17 (Cl.Ct.1988) (holding Internal Revenue Service has standing to challenge validity of mortgage of seized property).

The Krauses have no established interest in the Property. While their claims may have been sufficient to allow the recording of a lis pendens, as the Krauses concede, the notice did not create any interest or substantive rights in the Property. Adhin, 44 So.3d at 1251-52. Instead, the lis pendens merely served to protect the Krauses’ asserted interest against any subsequent purchaser by giving constructive notice of their claim. Westburne Supply, Inc. v. Cmty. Villas Partners, Ltd., 508 So.2d 431, 434-35 (Fla. 1st DCA 1987). To be affected by the outcome of this matter, the Krauses would first have to be successful in their litigation against Mr. Ross and KGE that seeks to establish an interest in the Property. Such an “interest” is far too speculative and remote to confer standing on the Krauses to challenge the Development Loan’s validity.

As a general rule, only the corporation or its owners have standing to assert that its corporate officers acted without authority in their execution of a mortgage. Dillon v. Myers, 58 Colo. 492, 146 P. 268, 272 (1915) (holding creditors who obtained judgment subsequent to corporation’s execution of mortgage had “no right” to challenge mortgage’s execution); Liberty Bank & Trust Co. v. Dapremont, 844 So.2d 877, 892 (La.Ct.App. 2003) (holding that, where there was question of impropriety of party to mortgage corporate property “only the corporation would have standing to complain of his unauthorized act”); 7 W. Fletcher, Cyclopedia of the Law of Private Corporations § 3138 (2006); accord In re Inti Resorts, Inc., 46 B.R. 405, 416 (N.D.Ala. 1984) (explaining that, under Alabama law, unauthorized acts are voidable by corporation and its stockholders but not by creditor because corporate directors, officers and agents owe fiduciary duty to corporation but not to creditors). The Krauses were not members of KGE, nor were they seeking to obtain an interest in it. Instead, their complaint against KGE and Mr. Ross sought only to recover the Property. Because the Krauses have no ownership interest in KGE, as strangers to the Development Loan, they lack standing to challenge its proper authorization. Likewise, they lack standing to assert that the Development Loan is void because they have no interest in the Property.

For these reasons, we reverse the trial court’s final summary judgment. Because the Krauses lack standing to challenge the validity of the Development Loan, on remand, the trial court shall enter judgment in favor of CSB.

REVERSED and REMANDED

EVANDER and COHEN, JJ., concur.

      .CSB’s internal loan analysis documents indicated that KGE was "owned 100% by Mike Ross,” and it confirmed that ownership by reviewing the records on file with the Florida Department of State, Division of Corporations’ website. Its internal analysis stated ”[w]hen the loan was originally open Mike Ross and Abe Wilson were the managing partners of Krause. There has been a falling out between Wilson and Ross....”

      . This is a separate action from the instant appeal.

      . Only the Development Loan is at issue in this appeal.


author: TAYLOR, J.

text:
    Michael WEYMOUTH, Appellant, v. Veronica WEYMOUTH, Appellee.
    Nos. 4D10-873, 4D10-2745.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.
    Rehearing Denied May 21, 2012.

      Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Howard S. Friedman of Fischler & Friedman, P.A., Fort Lauderdale, for appellant.
    Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellee.
   TAYLOR, J.

The husband, Michael Weymouth, appeals a final judgment of dissolution and a final fee award. The wife, Veronica Wey-mouth, cross-appeals the final judgment of dissolution. We affirm in part, reverse in part, and remand for further proceedings.

I. Factual Background

The parties were married in 1993. Shortly before their marriage, the parties executed an Antenuptial Agreement prepared by the husband’s attorney. The Antenuptial Agreement contained a schedule of all the husband’s assets and liabilities prior to the execution of the agreement. Paragraph 3 of the Antenuptial Agreement provided that the wife would “hereby forever remise, release and quit claim all right, title and interest she might have or otherwise could have ... to any property owned prior to marriage ... by Michael and specifically waives any and all claim or claims which she might have in and to the real and personal property of Michael, owned prior to marriage.... ” Paragraph 4 provided that all “property acquired by either of them during the marriage (other than property acquired by either of them by gift or inheritance)” is marital property. The Antenuptial Agreement did not, however, contain an express waiver of growth or appreciation of premarital or non-marital assets.

Paragraph 11 of the Antenuptial Agreement provided that the parties “specifically waive any claims against the other for alimony ... unless the basis for the dissolution is adultery, physical abuse, mental or emotional abuse.” Furthermore, “[i]n the event of adultery, physical abuse, or mental or emotional abuse, either party shall be able to seek alimony and support from the other pursuant to Florida law; except that adultery or abuse may not be used against the party obligated to pay alimony or support.”

Before the marriage, the husband owned a Broward County house, which later became the marital residence. On the date the parties entered into the marriage, the fair market value of the home was $250,000, and the home was encumbered by a $160,000 mortgage. Between 1993 and 2006, the parties lived in the Broward County house, but the home remained titled in the husband’s name alone. Marital earnings were used to pay the house mortgage, insurances, real estate taxes and maintenance. In addition, substantial improvements were made to the property during the marriage.

In 2003, the parties went to a marital counselor because of problems in the marriage. Nonetheless, the parties remained together at that time, and in the early summer of 2006, they began discussing a move to North Carolina. The husband testified that he was unhappy in the marriage and hoped that the move might resurrect the parties’ relationship.

Around the same time in 2006, the husband was terminated from his position at Hamway Flooring, and he returned to work for Hunter Crow Corporation, a general contracting firm that the Weymouths founded in 1997. The husband claimed that his income at Hunter Crow was significantly less than it was at Hamway.

In September 2006, the parties acquired a North Carolina home. The parties planned to move there at the end of their sons’ school year in May or June 2007. They planned to rent the Broward County house for a year and then sell it to pay for the North Carolina property if the move worked out.

Beginning in March 2007, the husband began having frequent contact, via phone calls and text messages, with a woman who was not his wife. Additionally, beginning in April 2007, the husband would sometimes leave the house after dinner and come home very late. By May 2007, the wife was aware of problems with the marriage. The husband told her that he no longer wanted to move to North Carolina. The wife asked him if there was another woman involved in his decision. The husband denied that there was and became upset at the wife for asking.

The parties’ relationship continued to get worse during the summer of 2007. In August 2007, the husband moved out of the house. In September 2007, the husband traveled to the Florida Keys with the “other woman.” Both the husband and the “other woman” testified that the September 2007 trip was the first time they had sexual relations with each other. The trial court, however, specifically found that their testimony on this point was not credible.

By October 2007, the wife was aware of the relationship with the mistress. Even so, the wife was willing to work on the marriage. But when she learned that the husband was planning another trip with the “other woman,” the wife decided to file for divorce. Although the husband pleaded with the wife to wait, the wife filed for divorce in November 2007.

During trial, the wife submitted evidence of her need based on her requested relocation to North Carolina. Furthermore, the wife’s forensic accountant testified regarding the husband’s income and assets.

At the conclusion of the trial, the court ordered the parties to submit written closing arguments and proposed final judgments. On the alimony issue, the husband’s Closing Argument argued: (1) the Antenuptial precluded an alimony award; (2) the wife had not met her relocation burden; and (3) the wife should be awarded only $1,300 monthly, but at the most, her needs were $2,600 per month.

At a post-trial conference, the trial court advised the attorneys that it was having trouble determining the amount of alimony, explaining that there was no evidence of mortgage expenses for the wife if she moved from the marital residence and secured comparable housing in South Florida. After the hearing, the wife submitted a Motion to Reopen to Permit Additional Evidence, arguing that she should be allowed to submit evidence of her expenses if she remained in Broward County instead of relocating to North Carolina. The motion attached a letter which set forth what the cost of purchasing a $500,000 house in Broward County would be for the wife. The husband filed an objection to the wife’s motion to reopen the evidence, arguing that she had the opportunity at trial to present evidence of her need if her request for relocation were denied, and that her failure to do so constituted a waiver.

The court never explicitly ruled on the wife’s motion to re-open. Instead, in October 2009, the trial court entered a Final Judgment of Dissolution, which prompted both parties to file motions for rehearing.

The trial court later entered an Amended Final Judgment of Dissolution, which ruled: 1) the wife’s request for relocation was denied; 2) the parties would have shared parental responsibility; 3) the Antenuptial was unambiguous; 4) the basis for the dissolution was adultery; 5) the husband’s income was $290,000 per year, based on his average income of $270,000 from 2007 and 2008 plus the $20,000 he regularly receives as a gift from his mother each year; 6) the wife’s income was $86,000; 7) the wife was entitled to permanent periodic alimony of $3,000 monthly to begin after the sale of the North Carolina property; 8) the wife was awarded the Broward County house, and the non-marital portion was only the $90,000 in equity that existed at the inception of the marriage; 9) the parties were each awarded 50% of the sales proceeds of the North Carolina property; 10) the husband had a monthly child support obligation of $2,211.32; and 11) the wife was entitled to fees and costs, with jurisdiction reserved as to the amount.

Attached to the Amended Final Judgment were the equitable distribution schedule and child support worksheet first submitted to the court in the wife’s August 2009 post-trial letter. Despite the fact that the amended final judgment reflected that the parties would each receive 50% of the proceeds of the sale of the North Carolina property, the equitable distribution schedule attached to the Amended Final Judgment awards the entire North Carolina property (worth $1,457,000 per the schedule) and its mortgage liability (worth $960,000 per the schedule) to the husband. This resulted in the husband owing the wife a $290,940 equalizing distribution.

On June 23, 2010, the trial court entered an Amended Fee Judgment, awarding the wife fees for her counsel and expert in exactly the amount requested, plus interest.

The husband appeals, and the wife cross-appeals.

II. Equitable Distribution

A. The Broward County House

The Broward County house was the husband’s non-marital asset before the marriage; at the time the parties got married in 1993, the house was worth $250,000 and was subject to a $160,000 mortgage.

The preliminary issue is whether the wife waived the right to any passive appreciation of the value of the Broward County house in the prenuptial agreement. Where a prenuptial agreement does not address the right to enhanced value of a non-marital asset, that value is subject to equitable distribution. See, e.g., Valdes v. Valdes, 894 So.2d 264, 267 (Fla. 3d DCA 2004). Here, when the wife entered into the prenuptial agreement in this case, she agreed to “remise, release and quit claim all right, title and interest she might have or otherwise could have ... to any property owned prior to marriage ... by Michael and specifically waives any and all claim or claims which she might have in and to the real and personal property of Michael, owned prior to marriage.... ” However, as in Valdes, the prenuptial agreement in this case does not specifically address enhancement value.

The reference to “quit claim” in the prenuptial agreement does not mean that the agreement governed enhancement value. The husband relies upon Ledea-Genaro v. Genaro, 963 So.2d 749 (Fla. 4th DCA 2007), in support of his argument that the wife waived even passive appreciation of the property, but the husband’s reliance is misplaced. In Ledea-Genaro, the wife entered into a prenuptial agreement which provided: “In the event of a divorce initiated by either party, [the wife] shall vacate the marital home and deliver a Quitclaim Deed to the subject property to [the husband] in exchange for a complete, absolute release” of any obligation under the parties’ mortgage. Id. at 751. We held that the prenuptial agreement “unambiguously required that the wife quitclaim her entire interest in the home to the husband in the event that a petition for dissolution was filed .... ” Id. at 752 (emphasis added). In other words, we interpreted the agreement in Ledea-Genaro as meaning that the wife in that case would convey her entire interest in the marital home at the time of the divorce, and thus the wife waived her right to any share of equity in the home that had accrued during the course of the marriage.

Here, by contrast, the boilerplate reference to a “quit claim” in the prenuptial agreement referred to the wife’s waiving her interest in the property at the time the agreement was entered into. The prenuptial agreement in this case did not require the wife to convey her interest in the Broward home to the husband at the time when any “petition for dissolution was filed.” Therefore, Valdes controls, rather than Ledea-Genaro.

Although the trial court was correct in determining that the passive appreciation of the Broward County home was marital property subject to equitable distribution, the trial court’s methodology for distributing this asset was error. In Kaaa v. Kaaa, 58 So.3d 867, 868 (Fla.2010), the Florida Supreme Court held that, contingent upon certain findings of fact by the trial court, “passive appreciation of the marital home that accrues during the marriage is subject to equitable distribution even though the home itself is a nonmari-tal asset.”

The Florida Supreme Court explained that the trial court should employ the following method when determining whether a non-owner spouse is entitled to a share of the passive appreciation of the non-marital property: (1) the trial court must determine the overall current fair market value of the property; (2) the trial court must determine whether there has been a passive appreciation in the property’s value; (3) the trial court must determine whether the passive appreciation is a marital asset, a step which includes making findings of fact as to whether marital funds were used to pay the mortgage, whether the non-owner spouse made contributions to the property, and the extent to which the contributions of the non-owner spouse affected the appreciation of the property; (4) the trial court must determine the value of the passive appreciation that accrued during the marriage and is subject to equitable distribution; and (5) after the court determines the value of the passive appreciation to be equitably distributed, the court’s next step is to determine how the value is allocated. Id. at 872. “In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage.” Id. (quoting Stevens v. Stevens, 651 So.2d 1306, 1307-08 (Fla. 1st DCA 1995)) (emphasis in Kaaa).

As a preliminary matter, the trial court erred in awarding the Broward County house to the wife because the home itself was a non-marital asset belonging to the husband. Only the passive appreciation of the home, not the home itself, was subject to equitable distribution. Second, the trial court erred in determining that the only non-marital portion of the house value was the $90,000 in equity that existed at the time of the parties’ marriage in 1993. This is not the proper methodology for calculating the non-marital portion of the value of the property. While the trial court’s findings — including payment of the mortgage with marital funds and improvements to the property during the marriage — do support that the wife is entitled to a share of the passive appreciation of the Broward County home, the case should be remanded for the trial court to conduct further proceedings consistent with the methodology set forth in Kaaa.

B. North Carolina Property

The Amended Final Judgment found that each party had a 50% interest in the North Carolina Property and ordered that the proceeds of the sale would be divided equally between the parties. In contrast, the Equitable Distribution Schedule attached as an exhibit to the Amended Final Judgment assigns the property and its debt entirely to* the husband. This aspect of the judgment is internally inconsistent. A dissolution judgment that is internally inconsistent should be reversed and remanded for correction or clarification. See, e.g., Woellmer v. Woellmer, 935 So.2d 610, 611 (Fla. 4th DCA 2006). On remand, the trial court should utilize an equitable distribution schedule that reflects the court’s ruling that the parties would equally split the proceeds of the sale of the North Carolina property.

C. BOA Accounts

Additional facts are relevant to this sub-issue. The equitable distribution schedule attached to the final judgment shows $244,886 in Bank of America Accounts and CDs awarded to the husband. The amounts were taken from the wife’s expert’s schedules, which used valuation dates between September 2007 and October 2008. As of June 2009, however, the husband’s amended financial affidavit showed that the Bank of America accounts and CDs totaled only $37,490.59. The husband testified that the difference went to pay marital expenses.

We have stated that “it is error to include in the equitable distribution scheme assets or sums that have been diminished or depleted during the dissolution proceedings unless the depletion was the result of misconduct.” Tillman v. Altunay, 44 So.3d 1201, 1203 (Fla. 4th DCA 2010) (internal quotation marks and citation omitted). To include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct. Roth v. Roth, 973 So.2d 580, 585 (Fla. 2d DCA 2008).

Here, there was no evidence as to any misconduct connected to the depletion of the Bank of America accounts, and the trial court made no such finding. Rather, the uncontradicted testimony was that these assets were liquidated to pay the parties’ personal expenses during the separation. Therefore, the trial court erred in valuing the Bank of America accounts at $244,886, an amount which was largely depleted by the time of trial.

D. Valuation of Hunter Crow

We find that the trial court did not abuse its discretion in its valuation of the Hunter Crow business, including the trial court’s decision to select a post-petition valuation date.

E. Insurance Policy

During trial, the wife’s expert used a cash value of $6,634 to value the New York Life insurance policy. Only in the post-trial schedules did the wife claim for the first time that the policy was worth $12,000, which is the figure that the court accepted. The trial court erred in accepting this post-trial change, which was never explained.

III. Alimony

The husband raises various arguments against the alimony award. First, he claims that the trial court abused its discretion in finding that the “basis of the dissolution is adultery,” thereby permitting the wife to receive alimony under the Antenuptial. Second, he argues that the trial court erred in determining his income. Finally, he asserts that the trial court abused its discretion in allowing post-trial evidence of the wife’s needs.

A. Adultery

The Antenuptial agreement in this case precluded an award of alimony unless the basis for the dissolution was adultery or abuse. “Because adultery usually takes place in secret or seclusion, proof thereof in most instances is by circumstantial evidence, through showing desire, by evidence of mutual affection or otherwise, coupled with opportunity under conditions or circumstances from which a reasonable judge of human nature would be led to conclude that adultery was committed.” Leonard v. Leonard, 259 So.2d 529, 530 (Fla. 3d DCA 1972). Furthermore, circumstantial evidence can overcome a spouse’s denial of ádultery. See id. at 530-31.

Nonetheless, even if adultery occurs, this does not necessarily mean that adultery is the basis for the dissolution. In Smith v. Smith, 378 So.2d 11, 15 (Fla. 3d DCA 1979), the court noted that the ■wife’s alleged post-separation adultery was not related “to the breakup of the marriage, or to any of the financial relationships and obligations between the parties.” Therefore, the wife’s adultery was irrelevant, though the court noted that the husband’s adultery before the breakup was directly responsible for the dissolution of the marriage and was relevant.

Here, the trial court made the specific finding that the basis for the dissolution of marriage was that the husband committed adultery. This finding was supported by competent, substantial evidence. The husband admitted to having sexual relations with his mistress in September 2007, which was after he was separated from his wife but before the filing of the petition for dissolution. However, the communications between the husband and his mistress provided sufficient circumstantial evidence for the trial court to conclude that the husband was engaged in an adulterous relationship even before the separation from his wife. Furthermore, even considering only the post-separation adultery, there was evidence that the wife still wanted to salvage the marriage after the separation, but decided to file for divorce only after she learned that the husband was planning on taking yet another vacation with his mistress, confirming that the mistress was still “in the picture.” We do not disturb the trial court’s finding that adultery was the basis for the dissolution.

B. Income

We acknowledge that it is error to average a spouse’s income over previous years where uncontroverted testimony showed a reduction in income. See Greenberg v. Greenberg, 793 So.2d 52, 55 (Fla. 4th DCA 2001). In this case, however, the testimony was not “uncontrovert-ed” that the husband had a reduction in income. Although the husband testified that his business had experienced a slowdown, the wife’s expert offered testimony to the contrary. On this record, we do not disturb the trial court’s ruling.

C. Post-Trial Evidence of the Wife’s Needs

The husband also complains that the trial court considered post-trial evidence as to the wife’s needs. It is not clear whether the trial court actually considered this evidence, but we need not reach this issue because we find that it is moot. Because we are reversing the trial court’s decision to award the Broward home to the wife, the trial court will need to reconsider the issue of the wife’s needs for purposes of alimony in light of the fact that she will need to secure alternative housing in Bro-ward County. See, e.g., Tilchin v. Tilchin, 51 So.3d 596, 597-98 (Fla. 2d DCA 2011) (where error in equitable distribution cannot be corrected in isolation, remand for reconsideration of equitable distribution plan and alimony award is appropriate). Thus, on remand, the trial court should take additional evidence as to the wife’s needs. The husband will be able to cross-examine the wife’s witnesses and present any evidence on the issue. Accordingly, because this issue needs to be reconsidered by the trial court in the context of an evidentiary hearing, any due process argument that the husband raises in this appeal is moot.

IV. Life Insurance

Section 61.08(3), Florida Statutes (2007), authorizes the trial court to require an obligated spouse to purchase or maintain life insurance “[t]o the extent necessary to protect an award of alimony.” Requiring life insurance to secure an alimony payment “is justified only if there is a demonstrated need to protect the alimony recipient.” Privett v. Privett, 535 So.2d 663, 665 (Fla. 4th DCA 1988). The amount of life insurance required by the trial court must be related to the extent of the obligation being secured. Kotlarz v. Kotlarz, 21 So.3d 892, 893 (Fla. 1st DCA 2009).

We reverse as to the requirement that the husband maintain $1,000,000 in life insurance and remand for the trial court to reconsider the amount. While the husband had historically maintained $1,000,000 of life insurance during the marriage, the $1,000,000 requirement is excessive, given that the child support obligation will expire in 2015 and the alimony obligation can be secured with a lesser amount of insurance. See Walia v. Thomas, 805 So.2d 1041, 1042 (Fla. 4th DCA 2002) (holding that $1,000,000 was substantially more life insurance than necessary to secure the husband’s monthly child support of $2,460 for two children, age nine and sixteen). Furthermore, although the issue was not specifically raised on appeal, on remand the trial court should allocate the amount of life insurance designated to secure the alimony award vis-a-vis the amount designated to secure the child support award. See Gordon v. Gordon, 63 So.3d 824, 827 (Fla. 5th DCA 2011).

V. Attorney’s Fees

Because equitable distribution and alimony will be significantly impacted by this appeal, we reverse and remand so that the trial court can reconsider the award of attorney’s fees once a new final judgment of dissolution is entered on remand. See Tilchin v. Tilchin, 65 So.3d 1207, 1207 (Fla. 2d DCA 2011).

VI. Cross-Appeal

We find no reversible error in the trial court’s determination that the mutual fund accounts at issue in the cross-appeal were non-marital. See Mondello v. Torres, 47 So.3d 389, 393 (Fla. 4th DCA 2010) (“Where the evidence is conflicting as to whether one spouse intends to make a gift to the other, it is the responsibility of the trial court to evaluate the weight and credibility of that testimony and to arrive at a determination.”) (citation and internal quotation omitted).

Affirmed in part, Reversed in part, and Remanded.

POLEN and HAZOURI, JJ., concur.