author: CANADY, C.J.

text:
    Leslie S. OSBORNE, Appellant, v. Denise J. DUMOULIN, Appellee.
    No. SC09-751.
    Supreme Court of Florida.
    Feb. 3, 2011.

      Leslie S. Osborne, Trustee, Rappaport, Osborne and Rappaport, PL, Boca Raton, FL, for Appellant.
    Patrick S. Scott and Jeffrey T. Kuntz of GrayRobinson, P.A., Fort Lauderdale, FL, for Appellee.
    Paul Steven Singerman, Ilyse M. Homer and Paul A. Avron of Berger Singerman, P.A., Miami, Florida, on behalf of the Business Law Section of The Florida Bar, as Amicus Curiae.
   CANADY, C.J.

In this case we consider the circumstances under which a debtor is entitled to the statutory $4000 personal property exemption from legal process for debtors who do not claim or receive the benefit of a homestead exemption. We have for review a question certified by the United States Court of Appeals for the Eleventh Circuit regarding the meaning of section 222.25(4), Florida Statutes (2007) — which contains the personal property exemption — that is determinative of an issue in a bankruptcy case pending in that court and for which there appears to be no controlling precedent from this Court:

Whether a debtor who elects not to claim a homestead exemption and indicates an intent to surrender the property is entitled to the additional exemptions for personal property under Fla. Stat. § 222.25(4).

Osborne v. Dumoulin (In re Dumoulin), 326 Fed.Appx. 498, 502 (11th Cir.2009). We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In line with the legal analysis we adopt, we clarify the issue presented by rephrasing the certified question as follows:

Whether for the purpose of the statutory personal property exemption in section 222.25(4), a debtor in bankruptcy receives the benefits of Florida’s article X, section 4, constitutional homestead exemption where the debtor owns homestead property but does not claim the homestead exemption in bankruptcy and the trustee’s administration of the property is not otherwise impeded by the existence of the homestead exemption.

For the reasons explained below, we answer the question in the negative.

I. BACKGROUND

The parties previously stipulated to the essential facts of the case. Denise Dumou-lin (Debtor) filed a voluntary chapter 7 bankruptcy petition in federal court. See 11 U.S.C. §§ 301, 701-07 (2006). In her petition, she claimed her Fort Lauderdale home as exempt under article X, section 4 of the Florida Constitution, thus removing it from the bankruptcy estate. She also indicated her intent to surrender the real property. At the time of filing, the Debtor planned to sell her home and lease it back from the purchaser. The sale transaction, however, was not consummated.

After the creditors’ meeting, see 11 U.S.C. § 341 (2006), Osborne, the bankruptcy trustee (Trustee), demanded the sum of $4000 in assets from the Debtor’s personal property that exceeded the amount of the allowed exemptions under the Bankruptcy Code. (This amount represented most of the Debtor’s equity in her car.) The Debtor then filed amendments to her bankruptcy petition, deleting the homestead exemption and newly claiming the $4000 personal property exemption of section 222.25(4), Florida Statutes (2007), the statute at issue in this case. The Trustee objected to the claimed exemption, arguing that the Debtor was not entitled to claim it because she had a homestead. The bankruptcy court, however, overruled the objection and denied the motion for turnover of the personal property. The bankruptcy judge held that the Debtor was not precluded from claiming the statutory personal property exemption, noting that the Debtor intended to surrender the real property and no longer claimed the constitutional homestead exemption.

The Trustee appealed the ruling, and the federal district court affirmed the order overruling the Trustee’s objection. The Trustee then appealed to the circuit court. Osborne, 326 Fed.Appx. at 500. Confronted with the question of how to interpret section 222.25(4), the Eleventh Circuit reviewed several bankruptcy cases that offered conflicting views regarding its meaning and certified a question to this Court. Id. at 501-02.

II. ANALYSIS

This case presents an issue of first impression in our state courts regarding the meaning of section 222.25(4), and our answer to the certified question will resolve an ongoing conflict in the bankruptcy courts. The determination of the meaning of a statute is a question of law and thus is subject to de novo review. To give effect to the meaning intended by the Legislature, courts begin by examining the words of a statute to determine its plain and ordinary meaning. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (citing A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). Only when the statutory language is unclear or ambiguous is it necessary to apply principles of statutory construction to discern its meaning. Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960).

We begin our analysis with a review of the text of section 222.25(4) and section 4 of article X of our constitution as well as the rules of construction that apply to such exemptions. We then examine the legal context of the exemption statute. Next, we describe the basic conflict in the bankruptcy courts over the statute’s meaning and, finally, we resolve the conflict and answer the rephrased certified question.

A. The Statutory Personal Property Exemption and the Constitutional Homestead Exemption

Section 222.25, Florida Statutes, provides in pertinent part as follows:

222.25. Other individual property of natural persons exempt from legal process. — The following property is exempt from attachment, garnishment, or other legal process:
(4) A debtor’s interest in personal property, not to exceed $4,000, if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution. This exemption does not apply to a debt owed for child support or spousal support.

(Footnote omitted.) Section (4) was added to the statute in 2007. Ch.2007-185, § 1, Laws of Fla. (effective July 1, 2007). This exemption, sometimes referred to as the “wild card” exemption, permits an individual to exempt $4000 in personal property from the reach of creditors as long as the individual “does not claim or receive the benefits of’ the article X homestead exemption. This statutory personal property exemption is distinct from the personal property exemption provided in our constitution. Art. X, § (4)(a)(2), Fla. Const, (exempting from forced sale or levy “personal property to the value of one thousand dollars”). Only the statutory exemption is at issue here.

Section 4, article X of the Florida Constitution provides in pertinent part as follows:

SECTION 4. Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead....

With regard to the homestead exemption, this Court “has long been guided by a policy favoring the liberal construction of the exemption.... A concomitant in harmony with this rule of liberal construction is the rule of strict construction as applied to the exceptions.” Havoco of America, Ltd. v. Hill, 790 So.2d 1018, 1021 (Fla.2001) (citing Milton v. Milton, 63 Fla. 533, 58 So. 718, 719 (1912)). We apply the same rule of liberal construction in favor of the statutory exemption to determine when a debtor “receive[s] the benefits” of the homestead, exemption and thus becomes ineligible to claim the section 222.25(4) personal property exemption.

B. The Legal Context of the Statute

Before we examine the conflict in the bankruptcy courts regarding section 222.25(4), we outline the context of the statute within Florida and federal law. First, the constitutional homestead exemption to which the statute refers “protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself.” Olesky v. Nicholas, 82 So.2d 510, 513 (Fla.1955). “According to the plain and unambiguous wording of article X, section 4, a homestead is only subject to forced sale for (1) the payment of taxes and assessments thereon; (2) obligations contracted for the purchase, improvement or repair thereof; or (3) obligations contracted for house, field or other labor performed on the realty.” Havoco, 790 So.2d at 1022 (quoting Butterworth v. Caggiano, 605 So.2d 56, 60 (Fla.1992)); see Wilhelm v. Locklar, 46 Fla. 575, 35 So. 6, 6 (1903) (“No judgment is a lien on said property unless it come[s] within the exceptions of the Constitution.”); see, e.g., Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371, 1373 (Fla.1998) (“[T]he civil restitution lien [§ 960.293, Fla. Stat. (Supp.1994) ] cannot be a cloud on homestead property.”); Demura v. County of Volusia, 618 So.2d 754, 756 (Fla. 5th DCA 1993) (“Although the statute [§ 162.09, Fla. Stat. (1991) ] merely provides that any lien created pursuant to an administrative fine may not be foreclosed on real property which is homestead, the Constitution itself goes much farther: No such lien exists as to such homestead property.”).

When a person acquires property and makes it his or her home, the property is “impressed with the character of a homestead, and no action of the Legislature or declaration or other act on [the owner’s] part [is] required to make it [the owner’s] homestead, for it [is] already such in fact.” Hutchinson Shoe Co. v. Turner, 100 Fla. 1120, 130 So. 623, 624 (1930) (citing Baker v. State, 17 Fla. 406, 408-09 (Fla.1879) (stating that under the constitutional provision, the homestead is “exempt from forced sale, whether [the owner] has or has not been threatened with executions or other process”)). Further, we have stated that “where a homestead has been acquired it can be waived only by abandonment or by alienation in the manner provided by law.” Olesky, 82 So.2d at 512; see Fidelity & Cas. Co. of New York v. Maywood, 107 Fla. 208, 145 So. 67, 68 (1932) (“As the right of homestead once acquired continues until terminated in the manner provided by law, the protection of the right may be exercised by one entitled thereto so long as the homestead character and attributes of the property exist.”); see also Chames v. DeMayo, 972 So.2d 850, 862 (Fla.2007) (holding waiver of the homestead exemption from forced sale in an unsecured agreement is unenforceable).

Chapter 222, Florida Statutes (2007), which is entitled “Method of Setting Apart Homestead and Exemptions,” includes both the statutory exemption at issue and other provisions pertinent to both the statutory personal property exemption and the constitutional homestead exemption. Sections 222.01 and 222.02 provide a means whereby a person may claim property as homestead and notify judgment creditors of the property’s exempt status under article X, section 4, either pre- or post-levy. See Grant v. Credithrift of America, Inc., 402 So.2d 486, 488 (Fla. 1st DCA 1981). Failure to employ these statutory methods for asserting a homestead exemption claim, however, does not waive the right to the homestead exemption. Albritton v. Scott, 73 Fla. 856, 74 So. 975, 975 (1917) (“When a homestead to which the exemption from forced sale is attached is sold in violation of the exemption rights conferred by the Constitution, such sale is void. A mere failure to resist the sale is not a waiver of the exemption rights.”); see Maywood, 145 So. at 68 (“It is true that the appellee here could have interposed his claim of homestead exemption in that [earlier] suit, but, having failed to interpose it there, he is not precluded from exercising his constitutional right to contest his ouster from his homestead.”).

Finally — and importantly — another provision in chapter 222 explains why the Eleventh Circuit has asked this Court essentially to resolve a conflict in the bankruptcy courts over the applicability of the section 222.25(4) exemption. Bankruptcy is governed by federal law, but states may opt out of the federal bankruptcy exemptions of 11 U.S.C. § 522(d) (2006) and determine the exemptions allowed to debtors. See 11 U.S.C. § 522(b). Florida has done so in section 222.20, Florida Statutes. Accordingly, when a Florida resident files for bankruptcy, Florida law determines which property the debtor may exempt from the bankruptcy estate and administration by the trustee.

C. The Conflict in the Bankruptcy Courts

Under section 222.25(4), the $4000 personal property exemption is available to any debtor who “does not claim or receive the benefits” of the article X homestead exemption. Since this statutory exemption became effective in 2007, the bankruptcy courts have struggled with its application as evidenced by the many cases exhaustively outlining the conflicts that have arisen over the meaning of the statute. See, e.g., In re Abbott, 408 B.R. 903, 909 (Bankr.S.D.Fla.2009); In re Hernandez, 21 Fla. L. Weekly Fed. B299, B300, 2008 WL 1711528 (Bankr.S.D.Fla. Apr. 10, 2008); In re Magelitz, 386 B.R. 879, 880-81 (Bankr.N.D.Fla.2008). The nub of the problem is that — as evidenced by the foregoing discussion — under Florida law the homestead exemption does not have to be claimed to be effective against creditors. The bankruptcy courts have differed on the role that this aspect of Florida law plays in bankruptcy proceedings. As a result, the bankruptcy courts have expressed disparate views on whether and how a debtor with a Florida homestead is entitled to the section 222.25(4) personal property exemption. Two decisions well illustrate the differing approaches to this problem.

1. In re Magelitz

In Magelitz, the debtor filed a voluntary petition for bankruptcy, and his Florida homestead automatically became property of the bankruptcy estate. 386 B.R. at 883; see 11 U.S.C. § 541 (2006). The debtor did not, however, claim the homestead exemption to remove the property from the bankruptcy estate. Instead, he claimed the section 222.25(4) personal property exemption. In re Magelitz, 386 B.R. at 881. When the trustee objected to the debtor’s claim of the personal property exemption, the debtor argued that by not claiming his home as exempt, he did not receive the benefits of the article X exemption and was thus eligible for the section 222.25(4) exemption. Id. at 880.

After reviewing Florida case law on the article X homestead exemption, the bankruptcy judge concluded that “[s]ince the Debtor in this case owns the home, lives in it, and intends to continue to reside there, the property has homestead status under Florida law and therefore receives constitutional protection from creditors regardless of the Debtor’s failure to claim the homestead exemption.” In re Magelitz, 386 B.R. at 883 (emphasis added). The court discounted the debtor’s decision in bankruptcy not to exempt an asset from administration by the trustee, concluding that in eases in which an asset has no equity the trustee typically abandons the property to the debtor. Id. Thus, the court concluded that the debtor’s failure to claim the homestead exemption in bankruptcy had no effect on the debtor’s receipt of the benefits under the article X exemption. The court reasoned as follows:

Before the Debtor filed his bankruptcy petition, creditors were prevented from executing or obtaining judgment liens against his homestead by Art. X, § 4, Fla. Const. Now that the petition has been filed, the creditors are stayed from taking such action by 11 U.S.C. § 362, and since a debtor’s exemptions in bankruptcy are determined as of the date of the filing of the petition, 11 U.S.C. § 522(b)(3)(A); In re Peterson, 897 F.2d 935, 937 (8th Cir.1990), a debt- or who owns property that has the status of homestead on the petition date is entitled to assert the constitutional homestead exemption in the bankruptcy ease. Then, after the debtor is discharged, in spite of the fact that the homestead was not claimed as exempt on Schedule C, post-petition creditors would be [sic] not be able to pursue the homestead because of the protection afforded by the self-executing constitutional homestead exemption provision. Thus, by retaining the home, the debtor effectively receives the benefits of the homestead exemption. If the Debtor retains possession of the homestead while also claiming the additional wildcard personal property exemption, he would be able to shield the home from creditors under Art. X, § ⅛, Fla. Const, and protect additional personal property under Fla. Stat. § 222.25(h) at the same time. The Florida Legislature did not intend this result — a debtor cannot keep a home and also receive the enhanced personal property exemption under Fla. Stat. § 222.25(h).

Id. at 883-84 (emphasis added).

The court then ruled that the debtor received the benefit of the homestead exemption by staying in the home and could not claim the statutory exemption. Accordingly, the bankruptcy court held that “in order for a debtor who has an interest in a homestead to claim the $4,000 personal property exemption under Fla. Stat. § 222.25(4), the debtor must (1) not claim the property as exempt, and (2) timely and properly show a clear and unambiguous intent to abandon the property.” Id. at 884; see In re Gatto, 380 B.R. 88, 95 (Bankr.M.D.Fla.2007) (“Because the Debtors did not claim their homes as exempt, and because they are surrendering their respective homes, they will receive no benefit of the homestead exemption under section 4, article X of the Florida Constitution. As a result, they are entitled to the Statutory Personal Property Exemption provided for by section 222.25(4), Florida Statutes.”). Under the reasoning in Ma-gelitz, the debtor’s election not to claim the homestead as exempt from administration by the bankruptcy trustee had no effect on the debtor’s eligibility to claim the statutory personal property exemption.

2. In re Bennett

About six months after Magelitz issued, a different bankruptcy judge also addressed the problem of applying section 222.25(4) in light of Florida’s history regarding the article X homestead exemption. In re Bennett, 395 B.R. 781, 784 (Bankr.M.D.Fla.2008). That court held that in federal bankruptcy proceedings a debtor may cease to receive the benefits of the article X homestead exemption without abandoning the real property.

In Bennett, a consolidated case, none of the debtors claimed the homestead exemption. 395 B.R. at 784. Further, although several debtors indicated an intent to abandon their homestead, others did not. Id. After reviewing Florida law, the court acknowledged — as had other bankruptcy courts — that “there is little that a homeowner can do under Florida law to lose the protection of homestead [under article X].” Id. at 789 (emphasis added) (citing Magelitz). The court, however, determined that a debtor in bankruptcy who continues to occupy homestead property may nonetheless cease to receive the benefits of the exemption.

As some courts have noted, it is not possible under Florida law to stop receiving the benefits of the Homestead Exemption without abandonment or alienation. If all who could claim the exemption were to automatically receive the benefits of the Homestead Exemption in the context of a bankruptcy, then the decisions in Magelitz, Franzese [383 B.R. 197 (Bankr.M.D.Fla.2008)] and Morales [381 B.R. 917 (Bankr.S.D.Fla.2008) ] would be persuasive in holding that mere eligibility is sufficient and the language of the Statutory Exemption provision would be largely unnecessary. However, it is clear to this Court that a debtor in bankruptcy may cease to receive the benefits of the Homestead Exemption regardless of whether that protection could cease under the operation of Florida law alone.
Pursuant to § 522(b)(1) of the Bankruptcy Code, “an individual debtor may exempt from property of the estate” various items or amounts specified under either the federal or state scheme of exemptions. The term “may” indicates that the debtor is not required to claim exemptions. If the debtor does not choose to exempt the homestead under the Florida Homestead Exemption, the real property remains property of the estate under § 511 of the Bankruptcy Code and is subject to administration by the trustee. As a non-exempt asset, any equity left in the property after the secured claims have been satisfied could be used to satisfy the claims of unsecured creditors. In that situation, a debtor is not receiving the benefits of the Homestead Exemption’s protection of the homestead from forced judicial sale.
... [I]t is this Court’s conclusion that debtors who do not affirmatively exempt their homestead under § 522(b)(1) and the Homestead Exemption, but instead leave it available for administration by the Chapter 7 trustee, neither have claimed nor received the benefits of the Homestead Exemption found in Article X of the Florida Constitution. It is important to note that the Chapter 7 trustee need not actually administer the homestead for it to lose the protection of the Article X Homestead Exemption. That the homestead would not be protected were the trustee to decide to administer it is sufficient, because this means that the protection afforded by the Homestead Exemption has ceased.

In re Bennett, 395 B.R. at 789-90 (citations omitted) (emphases added).

Both the Magelitz and the Bennett courts agree that under Florida law the article X homestead exemption is effective against creditors in all but the three express instances described in the Florida Constitution and is lost only through abandonment of the homestead. On the basic issue of the effect this has in bankruptcy proceedings, however, the courts have arrived at opposite conclusions. For the court in Magelitz, the homestead debtor in bankruptcy cannot claim the section 222.25(4) exemption absent abandonment of the homestead property. The court in Bennett, however, concluded that bankruptcy is different. Failure to claim a homestead exempt in bankruptcy proceedings necessarily makes the homestead subject to administration for the benefit of creditors. Thus, under Bennett, absent other factors not relevant here, a debtor with a homestead is eligible to claim the section 222.25(4) personal property exemption without abandoning the homestead property.

D. Resolving the Conflict and Answering the Question

The persons excluded from using the section 222.25(4) personal property exemption are those who “claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution.” To give full effect to the statute, we read the personal property exemption liberally and thus read narrowly the phrase restricting the availability of the statutory exemption to those who do not receive the benefits of the homestead exemption.

1. What Are the “Benefits”?

Section 222.25(4) expressly states that the “benefits” are those of the homestead exemption of article X, section 4 of this state’s constitution. As we have previously stated, with three express exceptions this constitutional homestead exemption protects a person’s homestead against forced sale and levy. See art. X, § 4, Fla. Const. Thus, the protection of the homestead from creditors constitutes the only “benefits” of the article X homestead exemption. See In re Abbott, 408 B.R. at 908 (“The benefits contemplated under the statute are those derived from the constitutional homestead exemption, i.e., protecting the home from forced sale by creditors.”). The express limitation of “benefits” to this constitutional provision necessarily excludes other constitutional or statutory tax exemptions related to one’s homestead, see art. VII, § 6, Fla. Const., and any other advantages of owning or occupying a home. See Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996) (stating statutory construction principle of “expressio uni-us est exclusio alteráis,” i.e., “the mention of one thing implies the exclusion of another”).

Several of the federal bankruptcy courts reached this same conclusion based on the limiting language within the statute. See, e.g., In re Bennett, 395 B.R. at 788 (“Whether a debtor has equity in the property, lives in the home, or enjoys any other types of tax benefits has no relevance to the question of whether a debtor receives the benefits of the Florida Homestead Exemption.”); In re Hernandez, 21 Fla. L. Weekly Fed. at B300 (“If the legislature meant to exclude from the Statutory Personal Property Exemption all homeowners who owned homes on the petition date which met the constitutional definition of a homestead, the statute could have plainly and easily been written to exclude all individuals owning homes eligible for the constitutional exemption. That, of course, is not what the statute says. Rather, it excludes only those who receive the benefits of the constitutional exemption.”); In re Gatto, 380 B.R. 88, 93 (Bankr.M.D.Fla.2007) (“[The Trustees] point to benefits that are incidental to the ownership of a home such as the acquisition of owner’s equity, the ability to deduct mortgage interest, and the exemption and cap on real estate taxes. None of these benefits derive from the exemption for a homestead from the reach of creditors under section 4, article X of the Florida Constitution.”).

2. Receiving the Benefits

Having established that the “benefits”-cited in section 222.25(4) refer only to the _ protection of the homestead from the reach of «'editors provided by the article X homestead exemption, we now determine what it means to “claim or receive” those benefits within the meaning of the personal property exemption statute. As acknowledged by the courts in both Magelitz and Bennett, under Florida law a debtor need not claim the article X exemption to obtain its protections — the provision is self-executing. Further, the' benefits of the constitutional exemption ordinarily cannot be waived or lost absent abandonment or alienation of the homestead property. However, as one court has stated, “[B]ankruptcy adds another dimension to the analysis.” In re Abbott, 408 B.R. at 909.

In bankruptcy, a debtor’s property becomes property of the bankruptcy estate. See 11 U.S.C. § 541. A debtor, however, “may exempt from property of the estate” the property permitted under Florida and federal law. 11 U.S.C. § 522. Thus, the debtor in bankruptcy has the option of claiming the homestead as exempt from the bankruptcy estate. In re Bennett, 395 B.R. at 790; accord In re Abbott, 408 B.R. at 910. If a debtor claims the homestead exemption, then he. or she receives the benefits — the homestead’s protection from creditors. Alternatively, the debtor may choose not to exempt the homestead from the bankruptcy estate. When the debtor in bankruptcy does not claim the homestead exemption, the debtor effectively surrenders the homestead to the trustee for administration. In re Bennett, 395 B.R. at 790-91. Thus, the additional step of actual abandonment of the real property or an expression of intent to abandon the homestead is not required to bring the debtor within the category of those debtors who do “not claim or receive the benefits of [the article X] homestead exemption.” As the Bennett court correctly concluded, when the real property which has been occupied by a debtor as his homestead becomes subject to administration by the bankruptcy trustee, the debtor has lost the benefits of the homestead exemption.

In some cases, a bankruptcy trustee may decide not to administer the homestead property but to leave the home ■ in the debtor’s possession because, for example, there is little or no equity in the home. This decision by the trustee, however, does not negate the debtor’s loss of the benefits of the homestead exemption. Whatever benefits may flow to the debtor as a consequence of the trustee’s decision, those benefits are not “benefits of a homestead exemption.” Because the debtor did nothing to prevent the administration by the trustee of the real property which constituted the debtor’s home, the homestead exemption has ceased to have any legal effect with respect to that property, and the debtor has lost the benefits of the homestead exemption. Id. at 790; see In re Abbott, 408 B.R. at 910 (“By not claiming the homestead exemption in bankruptcy, the debtor ceases to receive the benefit of protecting the home from the claims of creditors and takes the chance that the trustee may administer the property.”). Contra In re Brown, 406 B.R. 568, 571 (Bankr.M.D.Fla.2009) (“Unless the facts in a particular case indicate more — that the trustee is likely to administer and sell the home, or that foreclosure or surrender of the home to the mortgagee is likely — the mere act of exposing an over-encumbered home to the trustee is a temporary and meaningless event.”).

Some courts examining the “claim or receive the benefits” language of the personal property exemption statute have focused on the limiting nature of these verbs. As the court in Gatto observed, the “word ‘receive’ is in the present tense.” In re Gatto, 380 B.R. at 91. The court found this “consistent with the general proposition that a debtor’s entitlement to an exemption is determined as of the date of the [bankruptcy] petition.” Id; see In re Morales, 381 B.R. at 920 (“A striking feature of the language of the statute is that it is written in the present tense. Therefore, the fact that a debtor may have claimed or received the benefits of a homestead exemption in the past would appear to have no bearing on the application of the statute to a debtor’s present situation.”).

We agree that use of the present tense of the verbs in section 222.25(4) narrows the relevant time that a debtor receives the benefits of the article X homestead exemption to the period when the debtor asserts the personal property exemption. The personal property exemption is unavailable to a debtor asserting that exemption who is contemporaneously claiming or receiving the benefit of the homestead exemption.- Accordingly, whether a debtor in bankruptcy could claim the homestead exemption, previously received the benefits of the homestead exemption, or may receive such protection after discharge from bankruptcy does not constitute receiving the benefits of the article X homestead exemption within the meaning of the personal property exemption. See In re Bennett, 395 B.R. at 788 (“There would be no reason for the legislature to have allowed the exemption for a debtor who ‘does not claim or receive the benefits of if it truly meant merely that a debtor ‘could claim’ or ‘is eligible to claim’ the Homestead Exemption.”); see also In re Abbott, 408 B.R. at 910 (“Therefore, whether a debtor acquires equity in the property in the future is irrelevant to the issue of whether the debtor receives the benefits of the homestead exemption as of the petition date.”); In re Hernandez, 21 Fla. L. Weekly Fed. at B300 (“In allowing or disallowing a debtor’s attempt to claim the Statutory Personal Property Exemption in a bankruptcy case, the focus is solely on the exemptions which will affect creditors in the case. The fact that the debtor is keeping his home and may use the constitutional shield to protect against execution by future creditors is not relevant.”).

3. Otherwise Receiving the Benefits

In the foregoing analysis, we have explained that the only “benefits” referred to in section 222.25(4) are protections of the homestead against forced sale and levy and that by not claiming the article X, section 4, homestead exemption, a debtor in bankruptcy may lose that protection. This does not mean, however, that every debtor who does not assert the homestead exemption in bankruptcy is not receiving the benefits of the exemption.

As several courts have explained, each case must be decided on its own facts because the debtor in bankruptcy may still receive the homestead exemption’s protections despite failing to assert the homestead exemption. In re Bennett, 395 B.R. at 790 (“A debtor who does not claim the Homestead Exemption may still receive its benefits in certain limited circumstances that can only be determined on a case-by-case basis, after a fact-intensive inquiry.”). For example, in Hernandez, the debtor husband filed individually for bankruptcy and claimed entitlement to the section 222.25(4) personal property exemption. In re Hernandez, 21 Fla. L. Weekly Fed. at B299. The trustee objected, arguing that because the husband’s nondebtor spouse retained the right to the homestead exemption, the debtor continued to receive the benefits of the homestead protection against creditors as well. The bankruptcy court determined that the wife’s retention of the homestead right would “prevent the trustee from administering the TBE [tenants by the entirety] property to pay any joint creditors,” which in turn meant that “the Debtor is receiving the benefits of the constitutional protection by shielding TBE assets from the reach of his joint creditors.” Id. at B300. Accordingly, the court held that the debtor could not claim the statutory personal property exemption.

In light of the potential for debtors in bankruptcy who do not assert the homestead exemption to nevertheless receive its benefits, we do not hold that a debtor’s not claiming the homestead exemption in bankruptcy is sufficient evidence that a debtor is not receiving the benefits of the homestead exemption to allow a debtor to claim the section 222.25(4) personal property exemption. Consideration of the facts in each case to determine whether a debtor is otherwise receiving the homestead exemption’s legal benefits is necessary to ensure that the statutory personal property exemption is available only to those who meet the statute’s terms.

4. Answering the Question

As we explained above, we construe the “claim or receive the benefits” language narrowly, consistent with providing the broadest reasonable application of the statutory personal property exemption. Further, we rephrased the question certified by the Eleventh Circuit to better address the conflict in the federal bankruptcy courts regarding the application of section 222.25(4). Accordingly, we now answer the rephrased question in the negative and hold that where a debtor in bankruptcy elects not to claim the article X, section 4, homestead exemption and the trustee’s administration of the bankruptcy estate is not otherwise obstructed by the existence of the homestead exemption, the debtor does not receive the benefits of the homestead exemption and may claim the section 222.25(4) personal property exemption of $4000.

III. CONCLUSION

In summary, a debtor in a federal bankruptcy proceeding may cease to receive the constitutional protection from forced sale or levy by not claiming homestead property as exempt. Accordingly, if under the facts of the case the article X homestead exemption does not otherwise pi'es-ent an obstacle to the bankruptcy trustee’s administration of the estate, then the debt- or in bankruptcy is not receiving the benefits of the homestead exemption and is eligible to claim the statutory personal property exemption of section 222.25(4).

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ„ concur.

      . The parties acknowledge that the Debtor in this case is now deceased but state that the issue regarding the meaning of section 222.25(4) nevertheless requires resolution in light of the conflicting opinions in the federal courts.

      . Another article in the state’s constitution provides homestead property with tax exemptions. See art. VII, § 6, Fla. Const.

      . Section 222.20 provides as follows:
      In accordance with the provision of s. 522(b) of the Bankruptcy Code of 1978 (11 U.S.C. s. 522(b)), residents of this state shall not be entitled to the federal exemptions provided in s. 522(d) of the Bankruptcy Code of 1978 (11 U.S.C. s. 522(d)). Nothing herein shall affect the exemptions given to residents of this state by the State Constitution and the Florida Statutes.
      But section 222.201, Florida Statutes (2007), expressly allows individual debtors to exempt "in addition to any other exemptions allowed under state law, any property listed in section (d)(10) of s. 522,” which in turn exempts debtors' rights to receive certain benefits, such as social security benefits, veterans’ benefits, and unemployment compensation.

      . In this case, we have limited our opinion to answering the certified question regarding a Florida statute. Accordingly, we did not address other issues raised that pertain to the federal bankruptcy proceeding. Such issues are more appropriately addressed by the Eleventh Circuit.


source: Caselaw Access Project

author: RAMIREZ, C.J.

license: Public Domain

text:
    BAY PARK TOWERS CONDOMINIUM ASSOCIATION, INC., Appellant, v. TRIPLE M. ROOFING CORP., et al., Appellees.
    No. 3D09-3004.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.
    Cuevas, Ortiz & Cubas and Andrew Cuevas, Miami, for appellant.
    Derrevere, Hawkes, Black <& Cozad and Bryan W. Black and Shirley Jean McEac-hern, West Palm Beach, for appellee Triple M Roofing Corp.; Perez & Rodriguez, and Luis N. Perez, Coral Gables, for ap-pellee IRT Arcon, Inc.
    Before RAMIREZ, C.J., and SHEPHERD, J„ and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

This is an appeal from an order granting appellee Triple M. Roofing, Corp.’s motion to dismiss for lack of prosecution. Because there was record activity, we reverse.

Triple M. Roofing first points out that this is not a final, appealable order. Appellate courts have uniformly treated a dismissal for lack of prosecution as a final order for purposes of appeal. See, e.g., Fox v. Playa Del Sol Ass’n, 446 So.2d 126, 126 n. 1 (Fla. 4th DCA 1983)

Triple M. Roofing’s second argument, that the order of dismissal for failure to prosecute did not constitute an abuse of discretion because the case was dormant for more than one year, is totally fallacious. The case law has established bright line rules which give the trial court no discretion. Florida Rule of Civil Procedure 1.420(e) states:

In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action nor not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

In its brief, Triple M. Roofing admits that in the ten-month period that preceded the service date of the lack of prosecution notice, there were five docket entries which provided five reasons why the notice of no activity was a nullity. See Wilson v. Salamon, 923 So.2d 363 (Fla.2005); Norman v. Darville, 964 So.2d 864 (Fla. 2d DCA 2007); Reddy v. Farkus, 933 So.2d 595 (Fla. 5th DCA 2006); Walker v. McDonough, 929 So.2d 1127 (Fla. 4th DCA 2006); Hunnewell v. Palm Beach Cnty., 925 So.2d 468 (Fla. 4th DCA 2006); Richards v. Sheriff of Palm Beach Cnty., 925 So.2d 1166 (Fla. 4th DCA 2006). Triple M. Roofing, Corp. also relies on Chemrock Corp. v. Tampa, Elec. Co., 23 So.3d 759 (Fla. 1st DCA 2009). However, Triple M. Roofing’s reliance on that case is misplaced because in that case, Chemrock admitted there had been a ten-month period of inactivity.

Finally, because the motion filed below represents the quintessential example of a frivolous motion rendering the time spent in the prosecution of this appeal equally wasteful, we grant appellant’s motion for costs pursuant to Florida Rule of Appellate Procedure 9.400(a). As to attorney’s fees pursuant to rule 9.400(b), the Florida Supreme Court has stated that the language of rule 9.400(b) requires that “a party seeking attorney’s fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. It is simply insufficient for parties to only refer to rule 9.400 or to rely on another court’s order in support of a motion for attorney’s fees for services rendered in an appellate court.” United Servs. Auto. Ass’n v. Phillips, 775 So.2d 921, 922 (Fla.2000). Accordingly, we deny appellant’s motion for attorney’s fees filed prior to the reply brief. At the same time, the Court on its own motion orders the appellees, Triple M. Roofing and IRT-Arcon, Inc., shall show cause within ten (10) days as to why this Court should not impose sanctions, including attorney’s fees, against the appellees and their counsel pursuant to section 57.105, Florida Statutes (2010), and Rule 9.410 of the Florida Rules of Appellate Procedure.

Reversed and remanded for reinstatement below and further proceedings here.


author: PER CURIAM.

text:
    BAY PARK TOWERS CONDOMINIUM ASSOCIATION, INC., Appellant, v. TRIPLE M. ROOFING, CORP., Appellee.
    No. 3D09-3004.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.

      Cuevas, Ortiz & Cubas and Andrew Cuevas, Miami, for appellant.
    Derrevere, Hawkes, Black & Cozad and Bryan W. Black and Shirley Jean McEac-hern, West Palm Beach, for appellee Triple M. Roofing Corp.; Perez & Rodriguez, and Luis N. Perez, for appellee IRT Ar-con, Inc., for appellee.
    Before RAMIREZ, C.J., and SHEPHERD, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

ON ORDER TO SHOW CAUSE

Upon consideration of the responses to this Court’s December 22, 2010, order to show cause, including the response filed by former counsel, Berk, Merchant & Sims, PLC, and finding all of the responses to be insufficient, the Court awards, as a sanction, a reasonable attorney fee to Appellant for the prosecution of the appeal, to be assessed against both Triple M. Roofing Corporation and IRT-Arcon, Inc., to be paid in equal amounts by each party and their counsel, pursuant to section 57.105, Florida Statutes (2009) (stating an award of reasonable attorney fees is to be paid to the prevailing party “in equal amounts by the losing party and the losing party’s attorney”). The case is remanded to the trial court for further proceedings in accordance herewith.


text:
    Richard A. SHELDON, D.C. as assignee of Travis Baliel, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    No. 1D10-0777.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.
    Rehearing Denied March 8, 2011.

      Woodburn S. Wesley, Jr., Ft. Walton Beach, for Appellant.
    Vicki S. Graves, Jacksonville; Douglas H. Stein of Seipp & Flick, Coral Gables, for Appellee.
   PER CURIAM.

We review an order of the County Court for the First Judicial Circuit in and for Okaloosa County, granting summary judgment in favor of the appellee and certifying a question of great public importance. We accepted discretionary jurisdiction pursuant to rule 9.160(e)(2), Florida Rules of Appellate Procedure and we now affirm the county court’s ruling and answer the certified question in the affirmative.

Travis Baliel was injured in an automobile accident on July 31, 2007. He had a personal injury protection (“PIP”) insurance policy issued by the appellee, United States Automobile Association (“USAA”), with a limit of $10,000, and made a claim on the policy to receive treatment for his injuries. As part of his treatment, he began receiving chiropractic care from the appellant, Dr. Richard A. Sheldon, D.C. Baliel assigned his rights under the policy to Dr. Sheldon to secure payment. USAA paid some of Dr. Sheldon’s charges but reduced others, on the ground that they were in excess of what is the usual and customary reimbursement' level in the community.

Dr. Sheldon subsequently filed suit against USAA in the county court on December 27, 2007, for payment of PIP benefits for services, as well as for statutory interest, penalties and attorney’s fees, pursuant to section 627.428, Florida Statutes. He originally filed the action in the Circuit Court for Okaloosa County, but the circuit court transferred the case to Okaloosa County Court several weeks later. In the meantime, USAA continued paying claims to other medical providers with assignments of benefits from Baliel. As these payments continued, they eventually exhausted the $10,000 limit on Baliel’s PIP policy on January 14, 2008, two weeks after the complaint was filed, but before USAA was served. USAA was subsequently served with the complaint another two weeks later, on January 28, 2008.

In its amended answer, USAA raised several affirmative defenses, including that it had paid reasonable amounts under section 627.736 for the services at issue and that benefits had been exhausted on January 14, 2008, and that no further benefits were payable under the policy. It then filed a motion for summary judgment based on exhaustion of benefits, arguing that all benefits due under the PIP policy had been paid and that no further benefits were due.

The county court initially denied the motion, finding that Dr. Sheldon could still maintain a claim for attorney fees and interest, but on USAA’s motion for reconsideration, it granted summary judgment, based on Progressive American Insurance Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008). It later vacated that order and entered an Amended Order Granting USAA’s motion for summary judgment, this time certifying the following as a question of great public importance:

After PIP benefits are exhausted, is a plaintiff barred from filing or maintaining a previously filed lawsuit against an insurance company to pursue a claim solely for penalties, interest and concomitant attorney’s fees on benefits that were reduced or denied prior to the exhaustion of benefits?

Dr. Sheldon contends that the county court erred in granting summary judgment for USAA. Even though PIP benefits have been exhausted, he asserts that he should be allowed to maintain his pending suit against USAA, solely for the purpose of pursuing a claim for statutory penalties, interest and attorney fees on the benefits that were reduced or denied. According to Dr. Sheldon, these unpaid benefits are “overdue” under the statute and thus subject to these monetary sanctions.

Florida’s Motor Vehicle No-Fault Law, which was intended to operate virtually automatically as to payment of benefits, allows for the payment of interest on overdue benefits, as well as an award of attorney fees to an insured or his assignee who is forced to sue to recover those benefits. See § 627.731 Fla. Stat. (2008). As Dr. Sheldon acknowledges, Florida courts have established that, once an insurer has paid out the policy limits to the insured (or to various providers as assignees), it is not liable to pay any further PIP benefits, even those that are in dispute. See Simon v. Progressive Express Insurance Co., 904 So.2d 449 (Fla. 4th DCA 2005). Further, if benefits are exhausted after suit is filed, but before the suit is served on the insurer, the suit for benefits may not go forward, because the insurer has met its obligation under the contract to pay the policy amount. See Progressive American Insurance Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008).

In the present case, Dr. Sheldon concedes that, under Simon and Stand-Up MRI, he cannot go forward with his suit for the underlying benefits that were reduced or denied. However, he seeks to maintain the suit merely to pursue interest, penalties and/or attorney fees under subsections 627.736(4) and (8). As Dr. Sheldon also observes, neither Simon nor Stand-Up MRI addresses claims for interest specifically. Indeed, no District Court in the state has addressed whether an assignee of benefits under a policy, like Dr. Sheldon, may continue to maintain a suit against the insurer solely to pursue statutory interest, penalties and/or attorney fees, where the underlying substantive claim for unpaid benefits has been obviated by the exhaustion of benefits prior to service of the suit. However, the statute itself does not allow for recovery of interest, penalties or attorney fees after the thirty-day investigation period expires unless benefits are first determined to be overdue. The reason an insurer that has paid out the policy limits may not be held liable on a claim for disputed benefits is that it has already fulfilled its contractual obligation to pay a given amount of benefits, and it cannot be required to pay more than it agreed to pay under the policy. Once the suit for disputed benefits dissolves, there can be no judgment that the disputed benefits are due. It therefore follows that, if disputed benefits cannot be deemed due, they cannot be deemed overdue. And without overdue benefits, there is nothing on which to base an award of interest, penalties or attorney fees. As Justice Pariente has explained, “[T]he penalty for ‘overdue’ payments which runs from the expiration of the thirty-day period, applies only if the insurer is ultimately found liable for the claim.” United Automobile Insurance Co. v. Rodriguez, 808 So.2d 82, 88-89 (Fla.2001) (Pariente, J., concurring). See also January v. State Farm Mutual Insurance Co., 888 So.2d 604, 607 (Fla. 5th DCA 2003) (“If the insurer fails to pay the claim or to continue investigating, it is not barred from contesting the claims, but must pay the penalties once its duty to pay the claim is established.”); § 627.736(4)(d), Fla. Stat. (“Interest shall be due at the time payment of the overdue claim is made.”). Thus, it is clear that Dr. Sheldon cannot seek interest on the disputed underlying benefits, as USAA will never be required to pay them, so they cannot become overdue.

Nor is Dr. Sheldon entitled to attorney fees on benefits that were never awarded to him and that will never be awarded, due to exhaustion of benefits. See § 627.428, Fla. Stat. (providing that an insured or assignee is entitled to an award of attorney fees only upon the rendition of judgment against an insurer). Because no such judgment has been or will be rendered, there is nothing on which to base an award of attorney fees under the statute. See also Nationwide Mut. Fire Ins. Co. v. Keen, 658 So.2d 1101, 1103 (Fla. 4th DCA 1995), rev. dismissed, 666 So.2d 143 (Fla.1995); Vaughan v. Progressive Am. Ins. Co., 435 So.2d 889, 889 (Fla. 1st DCA 1983).

We therefore conclude that the county court did not reversibly err in entering summary judgment in favor of USAA. We affirm and answer the certified question in the affirmative.

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

      . Specifically, Dr. Sheldon alleged that, on services for which he billed a total of $1,865.00, USAA had paid only $310.75.


text:
    Jermaine WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-1434, 3D09-2043.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Rehearing Denied Jan. 20, 2011.

      Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, and Daniel Tibbitt, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

This is an appeal from an order denying a motion to suppress all evidence gathered as a result of Williams’ illegal arrest. Because we believe the officer who arrested Williams had probable cause to arrest him, we affirm.

The charges against Williams stem from a shootout on October 13, 2006, between a group of drug sellers and undercover police officers Ray Robertson and Michael Galvez. One of the alleged drug sellers, Gregory Frasier, was shot and killed during the shootout. The State charged Williams and his co-defendant, Rodney Solomon, with various offenses relating to the drug operation and shootout. Williams was arrested three days after the shooting.

Williams moved to suppress cocaine and marijuana seized from his person alleging he had been arrested unlawfully. At the motion to suppress, the State called one witness — Officer Bill Raya — to testify about the events leading up to Williams’ arrest. He testified that he was on-duty as a uniformed patrol officer on October 16, 2006. At around 4:40 p.m., Officer Raya received a dispatch reporting an anonymous call about a young black male who possibly was involved in the police shooting that had occurred on October 13, 2006. The shooting had occurred at apartments located at NW 135th Street and NW 30th Avenue in Opa-Locka. The anonymous caller stated that the subject was wearing a Miami Dolphins jersey with dark pants and that he was located in the vicinity of 89th Street and NW 20th Avenue.

Officer Raya responded to that location. He testified that he heard Officer Mourino advise, over the police radio, that he had spotted a person fitting the description of the subject described in the dispatch. He heard Officer Mourino advise that he was going to approach the suspect, then reported that the subject was running.

The police established a perimeter to prevent the subject from escaping the area. Officer Ray saw a black male pop his head out from behind a bush about two houses away from where the officer was positioned. The male was wearing a jersey and matched the description given by the dispatcher and by Officer Mourino over the police radio a few moments earlier. Officer Raya ran toward the male yelling, “stop police.”

In response to Officer Raya’s command to stop, the subject turned away from the officer and quickly headed back in the direction from which he had just come. Officer Raya chased the male, tackled him, and took him into custody. The arrest occurred at 4:45 p.m. The State offered no evidence as to whether or not Williams was ai'rested in a high-crime area.

In C.E.L. v. State, 24 So.3d 1181 (Fla.2009), the Florida Supreme Court was presented with the issue of whether “a juvenile’s continued flight, within a high-crime area, in defiance of a police officer’s verbal order to stop, constitutes the offense of resisting, obstructing, or opposing an officer without violence under section 843.02, Florida Statutes (2007).” Id. at 1182. As in C.E.L., Williams does not contest that his actions constituted “unprovoked flight” from Officer Raya. See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Similarly, there has been no suggestion that Officer Raya’s order to stop was unlawful or that Williams did not act in knowing defiance of that order. The only distinction between our case and C.E.L. is that the prosecutor did not elicit testimony that the vicinity of 89th Street and NW 20th Avenue is a high crime area.

The opinion in C.E.L. explains that Wardlow. “concluded that flight from police could be one relevant factor in determining reasonable suspicion.” C.E.L., 24 So.3d at 1185. We believe in our case we have other factors: an anonymous tip that Williams had been involved in the police shooting three days prior, a description of Williams, concealment by Williams in some bushes, and flight from the police a second time. The argument that no evidence had been elicited that this vicinity was a high crime area was not made to the trial court. Had the argument been made below, the State could have recalled the officer and elicited such testimony. We find it difficult to believe that the officer would have testified that this was not a high crime area.

In C.E.L., the Florida Supreme Court’s reasoning was anchored in its interpretation of section 843.02, Florida Statutes (2007), and what constitutes obstructing an officer in the lawful performance of his or her legal duty. The Court concluded that “it is of no consequence whether the obstructing conduct is initiated before the officer has any legal duty to act. The essential inquiry should instead focus on whether the officer was lawfully executing a legal duty when the obstructing conduct occurred.” Id. at 1189.

We conclude that the lack of testimony as to whether this was a high crime area was amply overcome by the anonymous tip, the description, the concealment and the second flight.

Affirmed.


text:
    Jeremiah BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3919.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2010.
    Rehearing Denied March 8, 2011.

      Jeremiah Butler, pro se.
    Bill McCollum, Attorney General, for Appellee.
   PER CURIAM.

Appellant, Jeremiah Butler, appeals the trial court’s order striking his motion to correct illegal sentence. Fla. R. Crim. P. 3.800. The basis for the trial court’s order was a previous order entered by that court sanctioning Mr. Butler for his repeated filings of frivolous and abusive pleadings. The sanctions included prohibiting Butler from filing any further pro se pleadings and motions in the Fourth Judicial Circuit pertaining to case number 1996-CF-5156, the criminal case resulting in the life sentence Mr. Butler is currently serving.

Noting that this is the twenty-sixth of twenty-seven appellate actions filed by Appellant in this court, twenty-two of them pertaining to case number 96-5156-CFA (4th Cir., Duval County), we issued him an order to show cause why this court should not summarily affirm the order to be reviewed, under Rule 9.315, Florida Rules of Appellate Procedure; why Appellant should not be sanctioned pursuant to Rule 9.410, Florida Rules of Appellate Procedure for filing a frivolous appeal; and why such sanctions should not include a .direction to the Clerk of this Court to reject any future pleadings, petitions, motions, letters, documents, or other filing submitted to this Court by Appellant relating to his conviction and sentence. Mr. Butler responded with a lengthy document reiterating his challenges to his sentence rather than explaining his numerous filings or pointing out any error in the trial court’s order.

Mr. Butler’s response fails to show cause why the actions described in this court’s order should not take place. Courts’ authority to regulate the proceedings to promote the orderly administration of justice, including the efficient use of the limited judicial resources available to the system and litigants, is firmly established. State v. Spencer, 751 So.2d 47 (Fla.1999); Robinson v. State, 949 So.2d 1091 (Fla. 4th DCA 2007); Hepburn v. State, 934 So.2d 515 (Fla. 3d DCA 2005); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995). Considering Appellant’s incessant initiation of proceedings in this court, and finding this appeal frivolous, we find that Appellant has abused the judicial process and hindered the ability of this Court to orderly administer justice to those who have genuine disputes and colorable claims. See Pettway v. McNeil, 987 So.2d 20 (Fla.2008).

Accordingly, the order on appeal is AFFIRMED. In addition, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Jeremiah Butler, DC # J02866, that are related to his convictions and sentences in Case No.1996 CF 05156 (4th Cir., Duval), unless signed by a member in good standing of The Florida Bar.

It is so ordered.

BENTON, C.J., PADOVANO, and CLARK, JJ., Concur.


author: DAMOORGIAN, J.

text:
    Herbert MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-551.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2011.
    Herbert Moore, Clermont, pro se.
    No appearance required for appellee.
   DAMOORGIAN, J.

Moore appeals an order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. We affirm and write only to address the trial court’s determination that Moore’s fifty-two page motion with approximately one-hundred exhibits was frivolous and abusive, as well as the trial court’s imposition of sanctions pursuant to sections 944.279(1) and 944.28, Florida Statutes. We agree that sanctions in this case were appropriate. See McCutcheon v. State, 44 So.3d 156 (Fla. 4th DCA 2010).

To put this case in perspective, it is necessary to provide a brief description of the proceedings commencing with Moore’s conviction and sentence. In 2001, this court affirmed Moore’s conviction and sentence for trafficking cocaine in excess of twenty-eight grams and felony fleeing or eluding a police officer. Moore v. State, 778 So.2d 1054 (Fla. 4th DCA 2001). Moore subsequently filed a rule 3.850 motion for post-conviction relief, raising seven claims for relief, five of which were for ineffective assistance of counsel. The trial court denied Moore’s claims and we per curiam affirmed that decision. Moore v. State, 843 So.2d 280 (Fla. 4th DCA 2003). More than two years after his judgment and sentence were final, Moore raised another claim of ineffective assistance of counsel, which the trial court denied as untimely. Again, we per curiam affirmed. Moore v. State, 871 So.2d 242 (Fla. 4th DCA 2004).

Finally, Moore filed a fifty-two page rule 3.800(a) motion to correct illegal sentence, which is the subject of this appeal. In his motion, Moore raised a myriad of claims of ineffective assistance of counsel, trial court and appellate court error, and prosecutor error. He did not raise any actual claims of sentencing error. In an extensive, detailed written order, the trial court denied the motion, concluding that the claims were not cognizable in a rule 3.800(a) motion because Moore was collaterally attacking his conviction. The trial court also found that the issues raised could be raised only in a rule 3.850 motion and that the time for filing such a motion had passed. The issues raised were also barred because they either were or should have been raised on direct appeal. Against this backdrop, the court concluded the motion was frivolous and that Moore had abused the post-conviction relief process by filing successive motions raising the same issues.

In McCutcheon, we acknowledged that “as more and more abusive prisoner litigants flood our state trial and appellate courts with frivolous, repetitive, and procedurally-barred postconviction challenges^] ... the meritorious claim of another litigant, who has not abused the process, may be lost.” 44 So.3d at 161. Herbert Moore is just such an abusive litigant. Accordingly, simultaneously with this opinion, we are issuing an order directing Moore to show cause why this court should not henceforth refuse to accept his pro se filings in perpetuity. See State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999).

Affirmed.

GROSS, C.J. and MAY, J., concur.


text:
    Javbrki J. DICKERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6237.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Rehearing Denied Feb. 24, 2011.
    Javbrki J. Dickerson, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, HAWKES, and WETHERELL, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Clark H. SCHERER, III, Appellant, v. The VILLAS DEL VERDE HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 2D09-5547.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 2011.
    Raymond T. Elligett, Jr. of Buell & Elligett, P.A., Tampa, and Victor W. Holcomb and Brian A. Leung of Holcomb & Associates, Tampa, for Appellant.
    Brian P. Deeb and Nicole E. Durkin of Deeb & Durkin, P.A., St. Petersburg, for Appellee.
   NORTHCUTT, Judge.

The circuit court determined that Clark H. Scherer, III, the qualifying agent for a contractor, failed in his statutory obligation to supervise the contractor’s construction of the Villas Del Verde townhome project. The court entered a judgment against Scherer for damages stemming from defects in the construction. But the Florida Supreme Court has held that a qualifying agent’s failure to perform his statutory duty does not give rise to a private cause of action against him. We therefore reverse the final judgment against Scherer.

The Villas Del Verde is a sixty-two-unit townhome community consisting of eleven buildings in Gulfport. CFS Gulfport LLC was the developer, and Scherer Construction & Engineering LLC (SCE) was the general contractor. Clark Scherer, a licensed general contractor, was a principal in CFS and the qualifying agent for SCE. The project was built between 2002 and 2005. After control of the community was turned over to the Villas Del Verde Homeowners’ Association, the Association filed a multi-count suit to recover damages owing to defects in the construction. The Association sued CFS and SCE; it later added Scherer individually. The two corporate entities did not appear or defend against the suit.

After a nonjury trial, the circuit court found that certain work related to stuccoed walls and concrete driveways did not conform to the 1997 Standard Building Code, under which this project was built. The court awarded the Association over one million dollars, plus prejudgment interest, jointly and severally against CFS, SCE, and Scherer. Scherer appeals the judgment against him; the corporate entities have not appealed.

The Association’s single count against Scherer was based on section 553.84, Florida Statutes (2002), which creates a civil action for building code violations. Section 553.84 states in pertinent part:

[A]ny person or party, in an individual capacity or on behalf of a class of per: sons or parties, damaged as a result of a violation of this part or the Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation.[]

In addition to evidence of the shoddy stucco and concrete work, the Association introduced evidence that Scherer was SCE’s qualifying agent and that Scherer failed to supervise the construction.

Building construction standards are established' by chapter 553, which adopts the building codes that govern most construction in Florida. Qualifying agents, on the other hand, are a product of chapter 489, Florida Statutes (2002), which regulates the construction industry as a matter of “public health, safety, and welfare.” § 489.101. Any business entity that seeks a certificate of authority to engage in contracting must name a qualifying agent. § 489.119(2). The Construction Industry Licensing Board then investigates the “financial responsibility, credit, and business reputation of the qualifying agent and the new business organization” before the Department of Business and Professional Regulation issues a certificate of authority to the business. § 489.119(3)(c). As defined in section 489.105(4):

“Primary qualifying agent” means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he or she is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

Thus, SCE would not have been authorized to act as contractor without having Scherer or another competent individual as its qualifying agent. Further, as the qualifying agent, Scherer had the statutory responsibility “to supervise, direct, manage, and control” SCE’s activities “on a job for which he ... obtained the building permit.” See § 489.105(4). But these regulatory provisions are set forth in chapter 489; they do not appear in chapter 553 or in the building codes themselves. In other words, Scherer’s failure to supervise was not a violation of the building code.

The Florida Supreme Court was confronted with exactly this scenario in Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla.1994). There, property owners entered into a construction contract with the N. Sinha Corporation. Id. at 984. Niranjan Sinha was the corporation’s president, sole stockholder, and qualifying agent. Id. The corporation sued the owners for breach of contract and foreclosure of a statutory mechanics’ lien. The owners counterclaimed against the corporation and filed a third-party complaint against Sinha individually. They alleged in part that, as the corporation’s qualifying agent, Sinha was personally liable for violation of Florida’s minimum building codes pursuant to section 553.84. Id. at 985 n. 3.

Other than citing this statute in a footnote explaining the owners’ claim, the supreme court did not examine the civil cause of action created by section 553.84. Instead, the opinion analyzed whether a cause of action should be judicially inferred from the supervisory duty created in chapter 489. It seems to us that the supreme court followed this course because the owners had not alleged that Sinha himself “committed” a building code violation. The corporation was the general contractor on the job, and the corporation was the party to the owners’ contract. Sinha was the corporation’s qualifying agent but was not a party to the owners’ contract and, from the absence of facts in the Mmihy opinion suggesting otherwise, was not the party who committed the alleged building code violation. In short, he was in the same position as Clark Scherer was in this case.

Thus, today we make explicit what is perhaps implicitly stated in Murthy: a qualifying agent’s breach of the duties imposed by chapter 489 does not give rise to a claim against the qualifying agent under section 553.84 for a building code violation. Cf. Seabridge, Inc. v. Superior Kitchens, Inc., 672 So.2d 848, 850 (Fla. 4th DCA 1996) (citing Murthy ⅛ holding that “while chapter 489 provides administrative remedies against a qualifying agent, it does not expressly provide for a civil cause of action”; reversing judgment against qualifying agent of corporation, which was liable for damages because it failed to pay kitchen contractor); Evans v. Taylor, 711 So.2d 1317, 1318 (Fla. 3d DCA 1998) (finding Murthy inapplicable to case where homeowners sued qualifying agent “because he himself had performed work on the project”). We note that, in the same year that Murthy was decided, the legislature amended chapter 489 to state clearly the applicability of part I related to construction contracting: “Unless specifically provided, the provisions of this part shall not be construed to create a civil cause of action.” § 489.131(12) (added by ch. 94-119, § 265, at 602, Laws of Fla.).

When announcing its ruling below, the circuit court expressed its concern about contractors lending their names and licenses to corporations that disappear when liability issues arise. As one commentator has noted:

It is not unusual for contractors to conduct business through corporations with insufficient assets to satisfy claims for defective work. A contractor does not need a physical plant to operate and can lease equipment and hire labor as needed on a project-by-project basis. Thus, the corporate form often constitutes a substantial impediment for recovery by the owner for defective construction.

H. Hugh McConnell, Diminished, Capacity — Owners' Ability to Sue for Construction Defects in Florida, 71 Fla. Bar J. 64, 67 (June 1997). We share the court’s frustration, but we must follow the supreme court’s precedent in Murthy, which we find controlling in this case and which is reinforced by the explicit terms of the various statutes discussed above.

Reversed.

VILLANTI and LaROSE, JJ., Concur.

      . The building permits were issued in 2002. We note this fact to explain our later citation to the 2002 version of the Florida Statutes, but there are no significant differences pertinent to this case in the versions immediately before or after 2002.

      . Prior versions of section 553.84 referred to the State Minimum Building Codes. See, e.g., § 553.84, Fla. Stat. (1999-2000).

        .See § 553.73(8) (listing certain buildings, structures, and facilities that are exempt from the building code, such as federal government buildings, railroad facilities, nonresidential farm buildings, temporary structures for movie and TV production, and Miccosukee or Seminole Tribe chickees).

      . In fact, section 553.73(2) states in pertinent part:
      Technical provisions to be contained within the Florida Building Code are restricted to requirements related to the types of materials used and construction methods and standards employed in order to meet crite-na specified in the Florida Building Code. Provisions relating to the personnel, supervision or training of personnel, or any other professional qualification requirements relating to contractors or their workforce may not be included within the Florida Building Code....

      . The author also points out the discrepancy between licensed contractors acting as qualifying agents, who are insulated from individual liability, and design professionals such as architects and engineers, who "are statutorily barred from using the corporate form as a means of avoiding personal liability for failure to meet standards of professional care to which they are bound to adhere.” Id. at 67-68 (citing § 471.023(3) (engineers), and § 481.219(11) (architects)).


text:
    Darshan SPENCER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5065.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    Rehearing Denied March 8, 2011.
    Darshan Spencer, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has sought review of a final order rendered in the lower tribunal on August 13, 2010. Because the notice of appeal was not filed within 30 days of rendition, the appeal is untimely. Accordingly, the appeal is dismissed.

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


author: GERBER, J.

text:
    Leroy MACKEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-527.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.
    Rehearing Denied March 29, 2011.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his first-degree murder conviction. He argues that the trial court erred by: (1) denying his motion in limine to prohibit the state from introducing ballistics evidence; (2) overruling his objection to the state’s rebuttal closing argument;, and (3) denying his motion for new trial. On the first two arguments, we affirm. On the third argument, we remand for an evidentiary hearing.

The state presented the following evidence at trial. A woman in her apartment saw a shooting occur across the street. She recognized the shooter as the defendant, whom she knew from the neighborhood. A man in the neighborhood also heard the shots. Less than one minute later, the man saw the defendant walking quickly away from the area where the shooting occurred.

Later that day, the defendant arrived at another woman’s apartment. The defendant looked puzzled and different from normal. The defendant asked the woman to hide a gun for him. She said no, but that he should hide the gun under the stairs of her building. She watched as the defendant hid the gun there. She said the gun was distinctive because it had a silver stripe. She also said she had seen the defendant’s cousin with such a gun the night before.

The police apprehended the defendant. Post-Miranda, the defendant told the police that, at the time of the shooting, he was driving around town with a friend who lived in an apartment above a laundromat. The police could not locate anyone by that friend’s name and confirmed that there were no apartments above the laundromat. The police located the defendant’s cousin, but the cousin refused to talk to the police.

The police found the gun hidden under the stairs. During ballistics testing, the gun’s hammer broke and had to be replaced. One of the state’s ballistics examiners testified that replacing the broken hammer did not affect the testing. The testing confirmed that the gun was used in the shooting.

The police recovered three fingerprints from the gun. The first print matched the defendant. The second print did not match the defendant. The third print was insufficient for comparison. The police never compared the prints to those of the defendant’s cousin.

The police also took DNA swabs from the gun. The investigating detective testified that, two or three days after the shooting, he submitted the swabs to the DNA lab for testing. He further testified that, two months before the trial, he checked with the lab about the status of the testing. He was told that the lab had not performed the testing yet. He asked about expediting the testing for the trial, and a supervisor told him that the lab could not expedite the testing and that the testing had to progress through the system in the order in which it was received. The detective testified that the lab did not complete the testing before trial.

Before trial, the defendant filed a motion in limine to prohibit the state from introducing the gun and the ballistics testing into evidence. The motion argued that the police’s replacement of the gun’s broken hammer constituted tampering with the evidence. The trial court denied the motion and admitted the evidence at trial.

During closing argument, the defendant contended that the reason why his cousin refused to talk to the police was because his cousin shot the victim. During rebuttal, the state contended that the reason why the defendant’s cousin refused to talk to the police was because the cousin did not want to “tattle” on the defendant. The defendant objected that the state was arguing a fact not in evidence. The trial court overruled the objection.

The jury convicted the defendant as charged. The trial court then sentenced the defendant to life in prison.

The defendant later filed a motion for new trial on the ground of newly discovered evidence pursuant to Florida Rule of Criminal Procedure 3.600(a)(3) (2008). Attached to the motion was an affidavit from the defendant’s investigator. According to the investigator, the DNA lab’s personnel said that they told the detective that all expedite requests had to be in writing, that they never received a written expedite request from the detective, and that an expedited test could have been completed in approximately one week. The trial court denied the motion without holding an evi-dentiary hearing and without making any findings.

This appeal followed. The defendant argues that the trial court erred by: (1) denying his motion in limine; (2) overruling his objection to the state’s rebuttal argument; and (3) denying his motion for new trial. We will address each argument in turn.

We review the trial court’s denial of the motion in limine for an abuse of discretion. See Edwards v. State, 39 So.3d 447, 448 (Fla. 4th DCA 2010) (“The standard of review of a trial court’s ruling on a motion in limine is abuse of discretion.”). We find that the trial court did not abuse its discretion in denying the motion in limine. One of the state’s ballistics examiners testified that replacing the broken hammer of the gun did not affect the testing. No evidence in the record refutes that testimony. Thus, we affirm on this issue.

We review the trial court’s ruling on the objection to the state’s rebuttal argument for an abuse of discretion. See Wicklow v. State, 43 So.3d 85, 87 (Fla. 4th DCA 2010) (“Improper prosecutorial closing argument is reviewed under an abuse of discretion standard.”). We find that the trial court did not abuse its discretion in overruling the defendant’s objection. The state’s unsupported comment as to the alleged reason why the defendant’s cousin refused to talk to the police was a fair reply to the defendant’s prior unsupported comment that his cousin refused to talk to the police because his cousin committed the murder. See Johnson v. State, 917 So.2d 226, 228 (Fla. 3d DCA 2005) (prosecutor’s comments during the state’s rebuttal argument, even if erroneous, were a fair reply tailored to respond to defense counsel’s comments during closing argument). While it would have been the better practice for the state to have pointed out to the jury that the defense’s argument was merely an inference and that other reasonable inferences also existed, we do not find that the prosecutor’s comment in rebuttal was so prejudicial as to require a new trial.

We distinguish this case from Tindal v. State, 803 So.2d 806 (Fla. 4th DCA 2001). There, without any prompting from the defense, the state in rebuttal suggested that a nontestifying witness identified a person other than the defendant as the shooter because “a gun was pointed at [the witness] and she was in fear.” Id. at 809 (emphasis omitted). We found that the state’s argument “implied that the [state] had information which was not presented at trial, suggested that the defendants may be threatening the witness, and was so prejudicial as to require a new trial.” Id. at 810. Here, in contrast, the defendant was the first to suggest a reason as to why his cousin refused to talk to the police. The state’s rebuttal argument, which suggested an alternative reason for the cousin’s refusal to talk to the police, should have been expressed more artfully as another reasonable inference. However, we find that the state’s inartful argument was not so prejudicial as to require a new trial in this case. Thus, we affirm on this issue.

Our review of the trial court’s denial of the motion for new trial based on newly discovered evidence normally would be for an abuse of discretion. See Aguirre-Jarquin v. State, 9 So.3d 593, 603 (Fla.2009) (“The appropriate standard of review when reviewing a trial court order on a motion for new trial based on newly discovered evidence is abuse of discretion.”). However, in this appeal, the defendant no longer relies on his investigator’s affidavit to establish newly discovered evidence pursuant to Florida Rule of Criminal Procedure 3.600(a)(3). Instead, the defendant now is relying on the affidavit to establish prose-cutorial misconduct pursuant to Florida Rule of Criminal Procedure 3.600(b)(5) (2008) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 768, 31 L.Ed.2d 104 (1972).

We agree with the state that the defendant failed to preserve this argument for appeal. The motion for new trial did not allege prosecutorial misconduct or cite rule 3.600(b)(5) or Giglio. Cf Harrell v. State, 894 So.2d 935, 940-41 (Fla.2005) (defendant failed to preserve his Florida Rule of Criminal Procedure 3.172(f) argument for appeal because his motion did not invoke that rule).

However, on a recent review of an alleged Giglio violation, our supreme court acknowledged that a “ ‘conviction obtained by the knowing use of perjured testimony is fundamentally unfair ... [for it] involve[s] a corruption of the truth-seeking function of the trial process.’ ” Johnson v. State, 44 So.3d 51, 53 (Fla.2010) (quoting United States v. Agurs, 427 U.S. 97, 103-04, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (emphasis added)). We interpret that statement to mean that a Giglio violation can constitute fundamental error which may be raised on appeal even if not properly preserved. See Murray v. State, 3 So.3d 1108, 1122 n. 7 (Fla.2009) (“If an issue is not properly preserved for appeal, then it must ‘be so prejudicial as to constitute fundamental error’ in order to warrant a new trial.”) (citation omitted); Caraballo v. State, 39 So.3d 1234, 1249 (Fla.2010) (“Fundamental error is that which ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ”) (citation omitted). But see Stewart v. State, 861 So.2d 110, 111 (Fla. 3d DCA 2003) (defendant’s claim that the state knowingly offered false testimony at trial in violation of Giglio “was never raised in the trial court and is not, in our view, fundamental error”).

Thus, we are compelled to determine whether the record conclusively refutes the alleged Giglio violation. We find that it is does not. As our supreme court held in Johnson:

To establish a Giglio violation, a defendant must show the following: (1) the prosecutor presented false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. Once the first two prongs are established, the State bears the burden of showing that the false evidence was immaterial by showing that its use was harmless beyond a reasonable doubt. To do this, the State must show that there is no reasonable possibility that the error contributed to the conviction. A court’s decision with respect to a Gig-lio claim is a mixed question of law and fact, and a reviewing court will defer to the lower court’s factual findings if they are supported by competent, substantial evidence, but will review the court’s application of law to facts de novo.

Johnson, 44 So.3d at 64-65 (internal citations and quotations omitted). Further, if a police officer knowingly testifies falsely, that knowledge is imputed to the prosecutor who tries the ease. See Guzman v. State, 868 So.2d 498, 505 (Fla.2003) (“The knowledge prong is satisfied because the knowledge of the detective ... is imputed to the prosecutor who tried the case.”).

Here, the defense investigator’s affidavit provided prima facie allegations that the detective who checked on the DNA samples may have knowingly testified falsely. Although the affidavit was based on hearsay which the DNA lab personnel allegedly provided to the investigator, the affidavit was not so inherently incredible or obviously immaterial to the verdict that the trial court should have summarily denied the motion. See Robinson v. State, 736 So.2d 93, 93 (Fla. 4th DCA 1999) (“[W]e cannot conclude that [the witness’s] affidavit was inherently incredible or that his trial testimony was obviously immaterial to the verdict, so as to allow the trial court to reject his recantation without holding an evidentiary hearing.”). Rather, the affidavit should have prompted the trial court to hold an evidentiary hearing because: (1) the defendant’s investigator was not a lay witness; (2) the DNA lab personnel whom the investigator identified are employed by the state; and (3) during trial, the defendant impeached the woman who identified him as the person who shot the victim. Thus, we remand for an evidentiary hearing on the motion for new trial.

We caution that our holding should not be construed to mean that every motion for new trial alleging a Giglio violation automatically warrants an evidentiary hearing. See Fla. R. Crim. P. 3.600(c) (2008) (“When a motion for new trial calls for a decision on any question of fact, the court may consider evidence on the motion by affidavit or otherwise.”) (emphasis added); Dennis v. State, 51 So.3d 456 (Fla.2010) (recognizing that a trial court has the discretion to conduct an evidentiary hearing on a motion to dismiss alleging prosecutorial misconduct); Johnson v. Singletary, 647 So.2d 106, 111 (Fla.1994) (“We caution that our holding should not be construed to mean that convicted felons are automatically entitled to an evidentiary hearing upon obtaining an affidavit that another person has confessed to committing the crime. Such rulings must be made on a case-by-case basis.”). In this case, we believe that an evidentiary hearing would be appropriate to allow the defendant the opportunity to establish that the state knowingly presented false testimony and, if established, to allow the state to show that its use of the testimony was harmless beyond a reasonable doubt.

Affirmed in part; remanded for eviden-tiary hearing on the motion for new trial.

MAY and DAMOORGIAN, JJ., concur.


text:
    Kevin M. LEGRAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6863.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2011.
    Rehearing Denied Feb. 28, 2011.
    Kevin M. Legrand, 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.

WEBSTER, ROWE, and MARSTILLER, JJ., concur.


text:
    Dr. Gail VAN DIEPEN, P.A., and Gail Van Diepen, D.O., Appellant, v. Pamela BROWN and Karen Romagosa, Appellee.
    No. 5D10-54.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Rehearing Denied March 8, 2011.
    J. Stephen McDonald, of Shuffield, Low-man & Wilson, P.A., Orlando, for Appellant.

      Frederick C. Morello, and Michael G. Howard, of Frederick C. Morello, P.A., Daytona Beach, for Appellee.
   PER CURIAM.

This is the second time we have considered this case. On the first occasion we reversed an award of attorney’s fees to the plaintiffs/appellees, Pamela Brown and Karen Romagosa, because the trial court made conclusory findings about the reasonableness of the fee without sufficient specificity to allow meaningful appellate review. Patricia Gail Van Diepen, P.A. v. Brown, 976 So.2d 38 (Fla. 5th DCA 2008) (hereafter, “Van Diepen I ”). Although on remand a different judge of the trial court considered the fee issue, we conclude once again that the court abused its discretion in its resolution of the fee issue.

While the underlying facts are quite adequately set forth in Van Diepen I, it might be helpful to restate them briefly here. Ms. Brown and Ms. Romagosa were employees of the appellant, Dr. Gail Van Diepen, P.A. (“Van Diepen, P.A.”). After both were terminated, they each filed an eight-count complaint asserting claims for breach of contract, failure to pay overtime pursuant to the Fair Labor Standards Act, wrongful discharge, retaliatory discharge (under federal and state whistle blower statutes), fraud, fraud in the inducement, and negligent misrepresentation. A jury returned a verdict in favor of Van Diepen, P.A., on all counts except the overtime claims, and awarded damages that totaled $18,871.16 for the two claimants for unpaid overtime. Because Ms. Brown and Ms. Romagosa prevailed on the overtime claims, however, they were entitled to recover reasonable attorney’s fees attributable to such claims, but only to such claims.

After an evidentiary hearing the initial trial judge awarded a combined total of about $72,000 in fees for the claimants. Because the trial court’s order, among other things, did not set forth the reasonable number of hours attributable to the overtime claims, nor whether any adjustments were made, we concluded that we could not engage in a meaningful review of the issue and reversed. We remanded with the following instruction:

On remand, the trial court must determine the amount of reasonable hours which were related to the FLSA overtime claims. Appellees’ counsel’s billing records clearly indicate that there was a significant number of hours expended on matters solely related to appellees’ unsuccessful claims. The trial court may, in its discretion, take additional evidence on this issue.

(Emphasis added). That is to say, this court specifically found that the fee award was exaggerated because it included an award for time spent in the pursuit of the unsuccessful claims.

At the fee hearing on remand the appel-lees’ counsel once again made no significant effort to separate out which hours were related to the overtime claim. Instead, he once again took the untenable position that virtually all hours expended in the prosecution of this case were based on the overtime claim. Despite the explicit language of our opinion in Van Diepen I underscoring the fact that his time and billing records “clearly indicate” that there were many hours expended on matters unrelated to overtime, counsel doggedly maintained that all the claims were intertwined and that it was impossible for him to separate out hours devoted to the overtime claims. After the second trial judge attempted commendably to ferret out the hours devoted to overtime, he awarded a fee even higher than the one we previously reversed. We reverse again.

An order awarding attorney’s fees in a Fair Labor Standards Act case is reviewed using an abuse of discretion standard. Loranger v. Stierheim, 10 F.3d 776 (11th Cir.1994). We note, as well, however, that a de novo standard is to be applied to the review of a trial court’s determination of whether multiple claims within a lawsuit are separate and distinct as a matter of law. Anglia Jacs & Co., Inc. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002). We decided in our previous review that the two overtime causes of action were separate and distinct from the fourteen other claims unsuccessfully pursued by the appellees. We said, as related earlier, that counsel for appellees’ “billing records clearly indicate that there were a significant number of hours expended on matters solely related to [plaintiffs’] unsuccessful claims.”

It is the party seeking attorney’s fees on multiple claims who has an affirmative burden to demonstrate what portion of the effort was expended on the claim that authorized attorney’s fees. See Rockledge Mall Assoc., Ltd. v. Custom Fences of Brevard, Inc., 779 So.2d 558, 559 (Fla. 5th DCA 2001). If the moving party cannot meet his burden for any reason, including inadequate, confusing or imprecise timesheets or record keeping, he or she should not be awarded attorney’s fees for those vague or incomprehensible charges. Ocean Club Cmty. Ass’n, Inc. v. Curtis, 935 So.2d 513 (Fla. 3d DCA 2006). That is to say, the party against whom fees are sought should not be punished because of the lack of adequate record keeping by the party seeking fees. See also Crown Custom Homes, Inc., v. Sabatino, 18 So.3d 738 (Fla. 2d DCA 2009).

This is hardly a novel concept. In Rockledge Mall we said:

This court held in Plapinger v. Eastern States Properties Realty Corp., 716 So.2d 315 (Fla. 5th DCA 1998), that the party seeking attorney’s fees on multiple claims, one of which is a claim based on a written contract, has an affirmative burden to demonstrate what portion of the effort was expended on the claim which allowed attorney’s fees.

Rockledge Mall, 779 So.2d at 559.

In Plapinger v. Eastern States Properties Realty Corp., 716 So.2d 315 (Fla. 5th DCA 1998), we said:

The party asserting a right to attorney’s fees under a written contract has the burden not only of demonstrating its general right of recovery, but also the reasonable amount due for asserting or defending the contract right. It is also that party’s burden to demonstrate what portion of time or effort was expended in the lawsuit involving the defense of, or recovery on the contract, which allows for recovery of attorney’s fees, if there are other separate transactions or counts litigated at the same time for which an award of attorney’s fees is not appropriate.

Plapinger, 716 So.2d at 318.

In Crown Custom Homes the second district held that:

“[T]he party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible.” Lubkey v. Compuvac Sys., Inc., 857 So.2d 966, 968 (Fla. 2d DCA 2003); see also Ocean Club Cmty. Ass’n v. Curtis, 935 So.2d 513, 517 (Fla. 3d DCA 2006) (holding that the party seeking an award of attorney’s fees “bears ‘an affirmative burden to demonstrate what portion of the effort was expended on the claim which allowed attorney’s fees,’ ” (quoting Rockledge Mall Assocs., Ltd. v. Custom Fences of Brevard, Inc., 779 So.2d 558, 559 (Fla. 5th DCA 2001))).

Crown Custom Homes, 18 So.3d at 740. Many other cases are to the same effect. See, e.g., Ocean Club Cmty. Ass’n; Lubkey v. Compuvac Sys., Inc., 857 So.2d 966, 968 (Fla. 2d DCA 2003); Salisbury v. Spielvogel, 451 So.2d 974, 975 (Fla. 4th DCA 1984); United Servs. Auto. Ass’n v. Kiibler, 364 So.2d 57 (Fla. 3d DCA 1978).

In the present case counsel for the appellees has had two opportunities to do as the law requires and to separate out the overtime claims from the others. Despite the specific conclusions of this court in the prior appeal and despite the abundance of case law discussing the issue, counsel has chosen not to do so because he claims that he cannot separate one claim from the others. Where the claims are as distinct from each other as overtime is from fraud or negligent misrepresentation, no attorney’s fees are awardable if the attorney billing records do not support the fee. While it is true that the overtime claims may have formed the foundation for other claims, it was in this case a relatively easy foundation to form. The other claims were clearly separable as we said in our previous consideration of this case. Accordingly, we reverse the fee order and remand to the trial court with instructions to enter an order denying attorney’s fees for the appellees.

REVERSED and REMANDED with INSTRUCTIONS.

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


text:
    Donald E. WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6827.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Rehearing Denied March 8, 2011.
    Donald E. Walker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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