author: PER CURIAM.

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE-FORM 1.996 (FINAL JUDGMENT OF FORECLOSURE).
    No. SC09-1579.
    Supreme Court of Florida.
    Dec. 9, 2010.
    Donald Edward Christopher, Chair, Civil Procedure Rules Committee, Orlando, FL, John H. Harkness, Jr., Executive Director, Ellen H. Sloyer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Deborah Marks, Miami, FL; Alice M. Vickers, Florida Legal Services, Inc., Tallahassee, FL, Jeffrey Hearne, Legal Services of Greater Miami, Inc., Miami, FL, Jeffrey G. Haynie, Jacksonville Area Legal Aid, Inc., Jacksonville, FL, and Michael L. Resnick, Legal Aid Society of the Orange County Bar Association, Orlando, FL, on behalf of the Housing Umbrella Group of Florida Legal Services, Inc.; Suzanne Bar-to Hill of Rumberger, Kirk, and Caldwell, Orlando, FL, and Roy A. Diaz, Smith, Hiatt and Diaz, P.A.,' Fort Lauderdale, FL, on behalf of Florida Default Law Group, P.L.; Marc A. Ben-Ezra of Ben-Ezra and Katz, P.A., Fort Lauderdale, FL; and Terry Resk of Haile, Shaw and Pfaffenberger, P.A., North Palm Beach, FL, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Civil Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

Previously in this ease, the Civil Procedure Rules Committee filed a “Fast-Track Report in Response to Legislative Changes,” under Florida Rule of Judicial Administration 2.140(e), proposing amendments to form 1.996(a) (Final Judgment of Foreclosure) in order to bring it into conformity with current statutory provisions and requirements, improve the form’s clarity and readability, and better conform to prevailing practices in the courts. The Court adopted the amendments to this form, along with amendments to other Rules of Civil Procedure and Forms, in an opinion consolidated with In re Amendments to the Florida Rules of Civil Procedure, case number SC09-1460. See In re Amendments to Fla. Rules of Civil Pro., 44 So.3d 555 (Fla.2010). The amendments in case number SC09-1460 were prompted by the recommendations of the Task Force on Residential Mortgage Foreclosure Cases that was “established to recommend to the Supreme Court policies, procedures, strategies, and methods for easing the backlog of pending residential mortgage foreclosure cases while protecting the rights of parties.” In re Task Force on Residential Mortgage Foreclosure Cases, Fla. Admin. Order No. AOSC09-8, at 2 (March 27, 2009) (on file with Clerk of the Florida Supreme Court).

Along with the amendments to form 1.996(a), rule 1.110(b) was amended to require verification of mortgage foreclosure complaints involving residential real property. One of the primary purposes of this amendment was to ensure that plaintiffs and plaintiffs’ counsel do their “due diligence” and appropriately investigate and verify ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate. In light of recent reports of alleged document fraud and forgery in mortgage foreclosure cases, this new requirement is particularly important. The Court also adopted new form 1.924 (Affidavit of Diligent Search and Inquiry) to standardize affidavits of diligent search and inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant and new form 1.996(b) (Motion to Cancel and Reschedule Foreclosure Sale) to provide the court with an explanation of why a foreclosure sale needs to be cancelled and request that the court reschedule the sale.

Because, unlike the other amendments, the amendments to form 1.996(a) had not been published for comment prior to adoption, the opinion adopting the amendments provided a sixty-day comment period with regard to the amendments to that form. Several comments were filed, and the committee filed a response.

Upon consideration of the comments and the committee’s response thereto, we adopt two further amendments to form 1.996(a). First, in recognition of assertions in the comments that flat rate attorneys’ fee agreements are common in mortgage foreclosure cases, we amend the attorneys’ fee provisions of the form to accommodate this option. Second, in order to ensure that the provisions of the form are not contrary to the Protecting Tenants at Foreclosure Act of 2009, Pub.L. No. 111-22, §§ 701-704, 123 Stat. 1660-62, we delete the sentence from paragraph six of the form stating, “If any defendant remains in possession of the property, the clerk shall without further order of the court issue forthwith a writ of possession upon request of the person named on the certificate of title.”

Accordingly, form 1.996(a) (Final Judgment of Foreclosure) is hereby amended as reflected in the appendix to this opinion. Added language is underlined; deleted language is struck through. The amendments to the form shall become effective immediately upon the release of this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS; QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

FORM 1.996(a). FINAL JUDGMENT OF FORECLOSURE

FINAL JUDGMENT

This action was tried before the court. On the evidence presented

IT IS ADJUDGED that:

1. Plaintiff, .(name and address) ., is due

that shall bear interest at the rate of .% a year.

2. Plaintiff holds a lien for the total sum superior to all claims or estates of defendant(s), on the following described property in . County, Florida:

(describe property)

3. If the total sum with interest at the rate described in paragraph 1 and all costs accrued subsequent to this judgment are not paid, the clerk of this court shall sell the property at public sale on .(date)., to the highest bidder for cash, except as prescribed in paragraph 4, at the courthouse located at .(street address of courthouse). in . County in .(name of city)., Florida, in accordance with section 45.031, Florida Statutes, using the following method (CHECK ONE):

□ At .(location of sale at courthouse; e.g., north door)., beginning at .(time of sale).on the prescribed date.

□ By electronic sale beginning at .(time of sale).on the prescribed date at.(website).

4. Plaintiff shall advance all subsequent costs of this action and shall be reimbursed for them by the clerk if plaintiff is not the purchaser of the property for sale, provided, however, that the purchaser of the property for sale shall be responsible for the documentary stamps payable on the certificate of title. If plaintiff is the purchaser, the clerk shall credit plaintiffs bid with the total sum with interest and costs accruing subsequent to this judgment, or such part of it as is necessary to pay the bid in full.

5. On filing the certificate of title the clerk shall distribute the proceeds of the sale, so far as they are sufficient, by paying: first, all of plaintiffs costs; second, documentary stamps affixed to the certificate; third, plaintiffs attorneys’ fees; fourth, the total sum due to plaintiff, less the items paid, plus interest at the rate prescribed in paragraph 1 from this date to the date of the sale; and by retaining any remaining amount pending the further order of this court.

6. On filing the certificate of sale, defendants) and all persons claiming under or against defendant(s) since the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the property, except as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any. Upon the filing of the certificate of title, the person named on the certificate of title shall be let into possession of the property. If any defendant -remains — in possession of the property, the clerk shall without-further-order of the court issue forthwith a writ of possession upon request of--the'person named on the certificate of title

7. Jurisdiction of this action is retained to enter further orders that are proper including, without limitation, a deficiency judgment.

IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THE FINAL JUDGMENT.

IF YOU ARE A SUBORDINATE LIEN-HOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.

[If the property being foreclosed on has qualified for the homestead tax exemption in the most recent approved tax roll, the final judgment shall additionally contain the following statement in conspicuous type:]

IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT, (INSERT INFORMATION FOR APPLICABLE COURT) WITHIN 10 DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.

IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP YOU, TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD TO PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) TO SEE IF YOU QUALIFY FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME OF LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.

ORDERED at ., Florida, on .(date).

Judge

NOTE: Paragraph 1 must be varied in accordance with the items unpaid, claimed, and proven. The form does not provide for an adjudication of junior lienors’ claims nor for redemption by the United States of America if it is a defendant. The address of the person who claims a lien as a result of the judgment must be included in the judgment in order for the judgment to become a lien on real estate when a certified copy of the judgment is recorded. Alternatively, an affidavit with this information may be simultaneously recorded. For the specific requirements, see section 55.10(1), Florida Statutes; Hott Interiors, Inc. v. Fostock, 721 So.2d 1236 (Fla. 4th DCA1998).

Committee Notes

[No change]

      . This form was originally numbered 1.996, but was renumbered as 1.996(a) due to the adoption of a new form 1.996(b) (Motion to Cancel and Reschedule Foreclosure Sale). See In re Amendments to Fla. Rules of Civil Pro., 44 So.3d 555 (Fla.2010).


source: Caselaw Access Project

license: Public Domain

text:
    In re AMENDMENTS TO RULES OF THE SUPREME COURT RELATING TO ADMISSIONS TO THE BAR.
    No. SC10-979.
    Supreme Court of Florida.
    Dec. 9, 2010.
    J. Jeffry Wahlen, Chair, Michele A. Ga-vagni, Executive Director, and Thomas A. Pobjecky, General Counsel, Florida Board of Bar Examiners, Tallahassee, FL, for Petitioner.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Rules of the Supreme Court Relating to Admissions to the Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

At the Court’s request, the Florida Board of Bar Examiners (Board) has filed this petition to amend rule 4-22 (Part A), of the Rules of the Supreme Court Relating to Admissions to the Bar (Bar Admission Rules). Rule 4-22 describes the components of “Part A” or the Florida-prepared portion of the General Bar Examination, which is administered to individuals who seek admission to The Florida Bar. The amendments at issue in this case incorporate recommendations from the Florida Board of Bar Examiners Testing Commission (Commission), the Board, and the Court. The Board has unanimously approved the amendments proposed. The amendments were also published in the July 1, 2010, edition of The Florida Bar News for comment; none were received.

Upon consideration, we amend Rule 4-22 (Part A) as follows. In the opening paragraph of the rule, the Court amends the citations to the Rules of Judicial Administration to reflect the correct rule numbers. The opening paragraph is also amended to increase, from two to three, the number of subjects that may be tested in each of five segments in Part A of the General Bar Exam. Additionally, subsection (c) is renamed “business entities,” to eliminate the specific reference to corporations and partnerships and to broaden the topics that can be tested within this subject. Subsection (i), which currently refers to criminal law, is amended to include the new subjects of constitutional criminal procedure and juvenile delinquency. A new subsection (k) is added to include as a test subject Articles 3 and 9 of the Uniform Commercial Code; the subsections that follow (k) are re-lettered accordingly. Subsection (l), formerly subsection (k), which currently lists family law, is amended to include the new subject of dependency. Finally, new subsection (o) is added to include the new subject of professionalism.

Accordingly, we amend the Rules of the Supreme Court Relating to Admissions to the Bar as reflected in the appendix to this opinion. The new language is indicated by underscoring; deletions are indicated by struek-through type. These amendments shall take effect immediately upon the release of this opinion and will apply prospectively only, except that the amendments to subsections (c), (i), (k), (l), and (o), which add new test subjects, shall take effect two years from the date of this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

4-22 Part A. Part A will consist of 6 one-hour segments. One segment will include the subject of Florida Rules of Civil and Criminal Procedure and the Florida Rules of Judicial Administration ⅜©⅜ 2:Q60, — and—24-602,330, 2,420, 2,505 and 2.515. The remaining 5 segments, each of which will include no more than 23 subjects, will be selected from the following subjects including their equitable aspects:

(a) Florida constitutional law;
(b) federal constitutional law;
(c) business entities including corpora■tions-and-parbner-ships;
(d) wills and administration of estates;
(e) trusts;
(f) real property;
(g) evidence;
(h) torts;
(i) criminal law, constitutional criminal procedure, and juvenile delinquency;
(j) contracts;
(k) Articles 3 and 9 of the Uniform Commercial Code;
(fe)(¿) family law and dependency;
U2)(m) Chapter 4, Rules of Professional Conduct of the Rules Regulating The Florida Bar; and
(i»)(n) Chapter 5, Rules Regulating Trust Accounts of the Rules Regulating The Florida Barg and
(o) professionalism.

      . The Florida Bar Examination currently includes both the General Bar Examination and the Multistate Professional Responsibility Examination. See Fla. Bar Admiss. R. 4-11. The General Bar Examination consists of two parts. See Fla. Bar Admiss. R. 4-20. Part A is developed by the Board and includes a combination of essay and multiple choice questions. Id. Part B is the Multistate Bar Examination and is developed by the National Conference of Bar Examiners. Id.; see also Fla. Bar Admiss. R. 4-23.

      . See In re Amendments to the Fla. Rules of Judicial Admin.-Reorganization of the Rules, 939 So.2d 966 (Fla.2006) (reorganizing and renumbering the Rules of Judicial Administration).


text:
    In re AMENDMENTS TO THE FLORIDA PROBATE RULES.
    No. SC10-1928.
    Supreme Court of Florida.
    Dec. 9, 2010.
    Jeffrey Scott Goethe, Chair, Florida Probate Rules Committee, Bradenton, Florida, John F. Harkness, Jr., Executive Director and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner.
   PER CURIAM.

In response to recent legislation, The Florida Bar’s Probate Rules Committee (Committee) has filed an out-of-cycle, fast-track report of proposed amendments to the Florida Probate Rules. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).

The Committee proposes amendments to rules 5.201 (Notice of Petition for Administration), 5.260 (Caveat; Proceedings) and 5.360 (Elective Share), and new rule 5.3425 (Search of Safe Deposit Box). The proposals are in response to statutory changes made by chapter 2010-132, Laws of Florida, which went into effect October 1, 2010. See ch. 2010-132, §§ 2, 3, 6, 14, 19, Laws of Fla. (amending §§ 655.935, 731.110, 732.2125, 733.2123 Fla. Stat.; providing effective date). The Executive Committee of the Board of Governors of The Florida Bar unanimously approved the proposals.

After considering the Committee’s proposals and reviewing the relevant legislation, we adopt all the Committee’s proposals except the proposed amendment to subdivision (b) of rule 5.260. Consistent with statutory changes made by chapter 2010-132, section 3, Laws of Florida, we amend subdivision (b) to delete the requirement that a caveat contain certain personal information about the decedent and caveator. See ch. 2010-132, § 3, Laws of Fla. (amending § 731.110, Fla. Stat., to delete requirement that caveat contain personal information also referenced in rule). The remaining amendments, which we adopt as proposed by the Committee, are straightforward and responsive to the statutory changes referenced in the report.

Accordingly, we amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is underscored, and deleted language is struck through. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments to rule 5.260(c) and corresponding rule history shall become effective January 1, 2011, at 12:02 a.m. The amendments to the remainder of the rules shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 5.201. NOTICE OF PETITION FOR ADMINISTRATION

(a) Petitioner Entitled to Preference of Appointment. Except as may otherwise be required by these rules or the Florida Probate Code, no notice need be given of the petition for administration or the issuance of letters when it appears that the petitioner is entitled to preference of appointment as personal representative.

(b) Petitioner Not Entitled to Preference. Before letters shall be issued to any person who is not entitled to preference, formal notice shaiimust be served on all known persons qualified to act as personal representative and entitled to preference equal to or greater than the applicant, unless those entitled to preference waive it in writing.

(c) Service of Petition by Formal Notice. If the petitioner elects or is required to serve formal notice of the petition for administration prior to the issuance of letters, a copy of the will offered for probate must be attached to the notice.

Committee Notes

[No Change]

Rule History

1988 Revision — 2003 Revision: [No Change]

2010 Revision: Subdivision (c) added to require service of a copy of the will offered for probate. This requirement was included in section 733.2123, Florida Statutes, but was removed in 2010 because it was deemed to be a procedural requirement. Committee notes revised. Editorial changes.

Statutory References

[No Change]

Rule References

[No Change]

RULE 5.260. CAVEAT; PROCEEDINGS

(a) Filing. Any creditor or interested person other than a creditor may file a caveat with the court. The caveat of an interested person, other than a creditor, may be filed before or after the death of the person for whom the estate will be, or is being, administered. The caveat of a creditor may be filed only after the person’s death.

(b) Contents. The caveat shall contain the decedent’s name, the-decedent’s social security number, — or—date—of -birth, — if ■Imown^-a-statement-ofthe-interest of the caveator-in-the-■ estate, and the name, and specific mailing address, and residence-address of the caveator.

(c) Resident Agent of Caveator; Service. If the caveator is not a state agency or a resident of the-Florida county where the-caveat is filed, the caveator shaiimust file a designation of-4esignate-an-agent-fer serv-ice-of-nofice; — The-designation-shall state-either-(-l-> the name and specific mailing address and residence address of a resident in the county where the caveat is filed, or (2) the name and office address of a-member-of-The-F-lor-ida-Bar-residi-ng-j-n Florida as the caveator’s agent for service of notice. The written acceptance by the person appointed as resident agent shallmust be filed with the designation or included in the caveat. The designation and acceptance shall constitute the consent of the caveator that service of notice upon the designated resident agent shall bind the caveator. If the caveator is represented by an attorney admitted to practice in Florida who signs the caveat, it shall not be necessary to designate a resident agent under this rule.

(d) Filing after Commencement. If at the time of the filing of any caveat the decedent’s will has been admitted to probate or letters of administration have been issued, the clerk shallmust promptly notify the caveator in writing of the date of issuance of letters and the names and addresses of the personal representative and the personal representative’s attorney.

(e) Creditor. When letters of administration issue after the filing of a caveat by a creditor, the clerk shallmust promptly notify the caveator, in writing, advising the caveator of the date of issuance of letters and the names and addresses of the personal representative and the personal representative’s attorney, unless notice has previously been served on the caveator. A copy of any notice given by the clerk, together with a certificate of the mailing of the original notice, shallmust be filed in the estate proceedings.

(f) Other Interested Persons; Before Commencement. After the filing of a caveat by an interested person other than a creditor, the court shallmust not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the cave-ator’s designated agent.

Committee Notes

[No Change]

Rule History

1977 Revision — 2003 Revision: [No Change]

2010 Cycle Report Revision: Subdivision (c) amended to clarify that a state agency filing a caveat need not designate an agent for service of process, and to provide that a caveator who is not a resident of the county where the caveat is filed must designate either a resident of that county or an attorney licensed and residing in Florida as the caveator’s agent. Editorial changes in (d) and (e). Committee notes revised.

2010 Out-of-Cycle Report Revision: Subdivisions (a) and (b) amended to conform with statutory changes. Subdivision (c) amended to read as it existed prior to SC10-171 (35 FLW S482) due to a subsequent legislative amendment (Chapter 2010-132, § 3, Laws of Fla.). Editorial changes in (d), (e), and (f). Committee notes revised.

Statutory Reference

[No Change]

Rule Reference

[No Change]

RULE 5.3425. SEARCH OF SAFE DEPOSIT BOX

(a) Petition for Order Authorizing Search. The petition for an order authorizing the search of a safe deposit box leased or co-leased by a decedent must be verified and must contain:

(1) The petitioner’s name, address, and interest, if any, in the estate;

(2) The decedent’s name, address, date and place of death, and state and county of domicile;

(3) A description of the safe deposit box leased by the decedent and, if known, the name of any co-lessee;

(4) The name and address of the institution where the safe deposit box is located; and

(5) A statement that the petitioner believes that the decedent may have left in the safe deposit box one or more of the following:

(A) A will or codicil of the decedent, or a writing described in section 732,515 of the Code;

(B) A deed to a burial plot;

(C) A writing giving burial instructions; or

(D) Insurance policies on the life of the decedent.

(b) Order. If the Court determines that the petitioner is entitled to an order authorizing a search of the decedent’s safe deposit box, it must enter an order

(1) authorizing the petitioner to open the safe deposit box in the presence of an officer of the lessor and, if requested by the petitioner, to remove and deliver

(A) to the court having probate .jurisdiction in the county where the lessor is located any writing purporting to be a will or codicil of the decedent and any writing purporting to identify devises of tangible property;

(B) to the petitioner, any writing purporting to be a deed to a burial plot to give burial instructions; and

(C) to the beneficiary named therein, any document purporting to be an insurance policy on the life of the decedent.

(2) directing the officer of the lessor to make a complete copy of any document removed and delivered pursuant to the court order, together with a memorandum of delivery identifying the name of the officer, the person to whom the document was delivered, and the date of delivery, to be placed in the safe deposit box leased or co-leased by the decedent.

Committee Notes

The search of the safe deposit box is not considered an initial opening and is not subject to the inventory requirements of rule 5.342.

Rule History

2010 Revision: New rule.

Statutory References

§ 655.935, Fla. Stat. Search procedure on death of lessee.

RULE 5.360. ELECTIVE SHARE

(a) Election. An election to take the elective share may be filed by the surviving spouse, or on behalf of the surviving spouse by an attorney-in-fact or guardian of the property of the surviving spouse.

(1) Election by Surviving Spouse. An electing surviving spouse shalimust file the election within the time required by law and promptly serve a copy of the election on the personal representative in the manner provided for service of formal notice.

(2) Election by Attorney-in-Fact or Guardian of the Property of Surviving Spouse.

(A) Petition for Approval. Before filing the election, the attorney-in-fact or guardian of the property of the surviving spouse shalimust petition the court having jurisdiction of the probate proceeding for approval to make the election. The petition for approval shalimust allege the authority to act on behalf of the surviving spouse and facts supporting the election.

(B) Notice of Petition. Upon receipt of the petition, the personal representative shalimust promptly serve a copy of the petition by formal notice on all interested persons.

(C) Order Authorizing Election. If the election is approved, the order must include a finding that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime.

(D) Filing the Election. Upon entry of an order authorizing the filing of an election, the attorney-in-fact or guardian of the property shallmust file the election within the later of the time provided by law or 30 days from service of the order and promptly serve a copy of the election on the personal representative in the manner provided for service of formal notice,

(b)Procedure for Election.

(l)-(2) [No Change]

(3) Service of Notice. Upon receipt of an election the personal representative shallmust serve a notice of election within 20 days following service of the election, together with a copy of the election, on all interested persons in the manner provided for service of formal notice. The notice of election shallmust indicate the names and addresses of the attorneys for the surviving spouse and the personal representative and shallmust state that:

(A) persons receiving a notice of election may be required to contribute toward the satisfaction of the elective share;

(B) objections to the election must be served within 20 days after service of the copy of the notice of election; and

(C) if no objection to the election is timely served, an order determining the surviving spouse’s entitlement to the elective share may be granted without further notice.

(4) Objection to Election. Within 20 days after service of the notice of election, an interested person may serve an objection to the election which shallmust state with particularity the grounds on which the objection is based. The objecting party shallmust serve copies of the objection on the surviving spouse and the personal representative. If an objection is served, the personal representative shallmust promptly serve a copy of the objection on all other interested persons who have not previously been served with a copy of the objection.

(c) Determination of Entitlement.

(1) No Objection Served. If no objection to the election is timely served, the court shallmust enter an order determining the spouse’s entitlement to the elective share.

(2) Objection Served. If an objection to the election is timely served, the court shallmust determine the surviving spouse’s entitlement to the elective share after notice and hearing.

(d) Procedure to Determine Amount of Elective Share and Contribution.

(1) Petition by Personal Representative. After entry of the order detei’min-ing the surviving spouse’s entitlement to the elective share, the personal representative shallmust file and serve a petition to determine the amount of the elective share. The petition shallmust

(A) give the name and address of each direct recipient known to the personal representative;

(B) describe the proposed distribution of assets to satisfy the elective share, and the time and manner of distribution; and

(C) identify those direct recipients, if any, from whom a specified contribution will be required and state the amount of contribution sought from each.

(2) Service of Inventory. The inventory of the elective estate required by rule 5.340, together with the petition, shallmust be served within 60 days after entry of the order determining entitlement to the elective share on all interested persons in the manner provided for service of formal notice.

(3) [No Change]

(4) Objection to Amount of Elective Share. Within 20 days after service of the petition to determine the amount of the elective share, an interested person may serve an objection to the amount of or distribution of assets to satisfy the elective share. The objection shallmust state with particularity the grounds on which the objection is based. The objecting party shallmust serve copies of the objection on the surviving spouse and the personal representative. If an objection is served, the personal representative shallmust promptly serve a copy of the objection on all interested persons who have not previously been served.

(5) Determination of Amount of Elective Share and Contribution.

(A) No Objection Served. If no objection is timely served to the petition to determine the amount of the elective share, the court shallmust enter an order on the petition.

(B) Objection Served. If an objection is timely served to the petition to determine the amount of the elective share, the court shallmust determine the amount of the elective share and contribution after notice and hearing.

(6) Order Determining Amount of Elective Share and Contribution. The order shallmust:

(A) set forth the amount of the elective share;

(B) identify the assets to be distributed to the surviving spouse in satisfaction of the elective share; and

(C) if contribution is necessary, specify the amount of contribution for which each direct recipient is liable.

(e) Relief from Duty to Enforce Contribution. A petition to relieve the personal representative from the duty to enforce contribution shallmust state the grounds on which it is based and notice shallmust be served on interested persons.

Committee Notes

[No Change]

Rule History

1984 Revision — 2005 Revision: [No Change]

2010 Cycle Report Revision: Committee notes revised.

2010 Out-of-Cycle Report Revision: Subdivision (a)(2) amended to conform to an amendment to § 732.2125, Florida Statutes.

Statutory References

[No Change]

Rule References

[No Change]

      . The amendments to rule 5.260(c) delete language that was added as part of the 2010 regular-cycle amendments, which will become effective January 1, 2011, at 12:01 a.m. See In re Amendments to the Fla. Probate Rules, 50 So.3d 578 (Fla.2010).

      . An original and nine paper copies of all comments must be filed with the Court on or before February 7, 2011, with a certificate of service verifying that a copy has been served on the committee chair, Jeffrey Scott Goethe, 3119 Manatee Avenue West, Bradenton, Florida 34205-3350, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until February 28, 2011, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.320.
    No. SC10-2140.
    Supreme Court of Florida.
    Dec. 9, 2010.
    Katherine Eastmoore Giddings, Chair, Rules of Judicial Administration Committee, Akerman Senterfitt, Tallahassee, Florida, for Petitioner.
   PER CURIAM.

On its own motion, the Court amends Florida Rule of Judicial Administration 2.320, Continuing Judicial Education. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(g).

The amendments to rule 2.320 are in response to policy changes concerning continuing judicial education requirements recommended by the Florida Court Education Council. Subdivision (b)(2), Minimum Requirements, of the rule is amended to increase the number of continuing judicial education credit hours required in ethics in each three-year reporting period from two to four hours. Beginning January 1, 2012, four hours in the area of judicial ethics will be required; prior to that date, the current two hours in this area are required. Delaying the increase in ethics hours required ensures that judges will have adequate notice of the change and that no judge will be adversely affected by it. Language is also added to clarify that approved courses in fairness and diversity can be used to fulfill the ethics requirement. The subdivision is further amended to require a new appellate judge who has never been a trial judge or who has never attended Phase I of the Florida Judicial College as a magistrate to attend that program during the judge’s first year of judicial service following appointment.

Accordingly, we amend Florida Rule of Judicial Administration 2.320 as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments are effective immediately upon the release of this opinion. However, because the Court did not publish the amendments for comment prior to their, adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

POLSTON, J., dissents.

APPENDIX

RULE 2.320. Continuing Judicial Education

(a) Purpose. This rule sets forth the continuing education requirements for all judges in the state judicial system.

(b) Education Requirements.

(1) Applicability. All Florida county, circuit, and appellate judges and Florida supreme court justices shall comply with these judicial education requirements. Retired judges who have been approved by the supreme court to be assigned to temporary active duty as authorized by section 25.073, Florida Statutes (1991), shall also comply with the judicial education requirements.

(2) Minimum Requirements. Each judge and justice shall complete a minimum of 30 credit hours of approved judicial education programs every 3 years. TwoBeginning January 1, 2012, 4 hours must be in the area of judicial ethics; prior to that date, 2 hours in the area of judicial ethics are required. Approved courses in fairness and diversity also can be used to fulfill the .judicial ethics requirement. In addition to the 30-hour requirement, every judge new to a level of trial court must complete the Florida Judicial College program in that judge’s first year of judicial service following selection to that level of court; every new appellate court judge or justice must, within 2 years following selection to that level of court, complete an approved appellate-judge program. Every new appellate judge who has never been a trial judge or who has never attended Phase I of the Florida Judicial College as a magistrate must also attend Phase I of the Florida Judicial College in that judge’s first year of judicial service following the judge’s appointment. Credit for teaching a course for which mandatory judicial education credit is available will be allowed on the basis of 2½ hours’ credit for each instructional hour taught, up to a maximum of 5 hours per year.

(3) Mediation Training. Prior to conducting any mediation, a senior judge shall have completed a minimum of one judicial education course offered by the Florida Court Education Council. The course shall specifically focus on the areas where the Code of Judicial Conduct or the Florida Rules for Certified and Court-Appointed Mediators could be violated.

(c) Course Approval. The Florida Court Education Council, in consultation with the judicial conferences, shall develop approved courses for each state court jurisdiction. Courses offered by other judicial and legal education entities must be approved by the council before they may be submitted for credit.

(d) Waiver. The Florida Court Education Council is responsible for establishing a procedure for considering and acting upon waiver and extension requests on an individual basis.

(e) Requirements and Sanctions. The Florida Court Education Council shall establish a procedure for reporting annually to the chief justice on compliance with this rule. Each judge shall submit to the Legal Affairs andCourt Education Division of the Office of the State Courts Administrator an annual report showing the judge’s attendance at approved courses. Failure to comply with the requirements of this rule will be reported to the chief justice of the Florida supreme court for such administrative action as deemed necessary. The chief justice may consider a judge’s or justice’s failure to comply as neglect of duty and report the matter to the Judicial Qualifications Commission.

      . Minor editorial changes also are made throughout the rule.

      . An original and nine paper copies of all comments must be filed with the Court on or before February 7, 2011, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments and responses also must be filed in accordance with the Court’s administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


text:
    Billy Joe HOLTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0712.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.
    Billy Joe Holton, pro se, Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse and remand for the appellant to be resentenced according to a correctly calculated scoresheet.

On September 15, 1987, following a jury trial, the appellant was convicted of burglary with assault (count one), aggravated assault (count two), sexual battery (count three), kidnapping (count four), and robbery with a weapon (count five). He was sentenced to concurrent terms of life imprisonment for counts one, four and five, five years’ imprisonment for count two, and 30 years’ imprisonment for count three.

The appellant asserts that his scoresheet erroneously included two convictions for robbery as “prior record” convictions where those crimes took place after the instant offenses. The record indicates that the two “prior” robberies occurred after the primary offense was committed, even though the appellant was sentenced for those crimes before the instant convictions. Thus, those crimes were not prior convictions and were improperly included on the appellant’s sentencing scoresheet. See Fla. R.Crim. P. 3.701(d)(5); Schummer v. State, 657 So.2d 3 (Fla. 1st DCA 1995) (after-committed offenses could not be scored on score-sheet for instant crimes); Laster v. State, 486 So.2d 88, 88 (Fla. 5th DCA 1986) (holding that the points assessed for a prior offense should not have been added to the scoresheet because that crime was committed after the primary offense and thus is not a prior offense even though the appellant had been convicted and sentenced for the prior before the instant conviction and sentences). The state concedes that the inclusion of the robbery convictions on the scoresheet is improper. The error renders the appellant’s sentence illegal. Absent the 318 points erroneously scored for the two robbery convictions, the life sentences would have been upward departure sentences. Because it appears the appellant’s sentences could not have been imposed, absent a departure, the appellant is entitled to relief. See Goings v. State, 990 So.2d 1228 (Fla. 1st DCA 2008) (holding that because a sentence could not have been imposed absent a departure, a defendant who filed a 3.800(a) motion alleging scoresheet error is entitled to relief).

The trial court denied the appellant’s claim as successive. While rule 3.800(a) does not prohibit successive motions, a defendant is not entitled to successive review of a specific issue that has already been decided on the merits. See State v. McBride, 848 So.2d 287, 291 (Fla.2003); Fuston v. State, 764 So.2d 779 (Fla. 2d DCA 2000). Although the appellant has raised this claim in previous postcon-viction motions, the claim has never been addressed on the merits. See Williams v. State, 868 So.2d 1234 (Fla. 1st DCA 2004) (“[T]he trial court erred in denying the appellant’s claim as being barred by collateral estoppel as it is not clear from the record before this Court that the instant claims have ever been decided on the merits”); Pleasure v. State, 931 So.2d 1000, 1002 (Fla. 3d DCA 2006) (“For the bar of collateral estoppel to apply, the prior decision must have been on the merits.”). Thus, collateral estoppel does not bar the appellant from challenging the scoring of the robbery convictions.

Accordingly, we REVERSE and REMAND for the trial court to resentence the appellant pursuant to a correctly calculated scoresheet.

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

      . The appellant also asserts that his score-sheet contained a prior conviction for robbery which does not exist. Because we are reversing and remanding for resentencing, that claim may be litigated at the resentencing hearing.


author: WARNER, J.

text:
    KPMG LLP, Appellant, v. Robert COCCHI, Penny Ellen Fromm, Pef Associates, Inc., Brian Gaines, John Johnson, Dr. David Schwartzwald, Rand Schwartzwald, Dr. Herbert Silverberg, John Silverberg, Dr. Jerry Weiss, Donna Weiss, The Norman Shulevitz Foundation, Inc., RM Management, LLC, Sande Wische, Carol Wische, Paula Zitrin, Dr. Jaron Zitrin, Rachel Zitrin, Dr. Roger Zitrin, Tremont Group Holdings, Inc., Tremont Partners, Inc., Rye Select Broad Market Fund, LP, Rye Select Broad Market Prime Fund, LP, Rye Select Broad Market XL Fund, LP, Appellees. KPMG LLP, Appellant, v. Robert Cocchi, Penny Ellen Fromm, Pef Associates, Inc., Brian Gaines, John Johnson, Dr. David Schwartzwald, Dr. Herbert Silverberg, Dr. Jerry Weiss, Donna Weiss, The Norman Shulevitz Foundation, Inc., RM Management, LLC, Sande Wische, Carol Wische, Paula Zitrin, Dr. Jaron Zitrin, Rachel Zitrin, Dr. Roger Zitrin, Tremont Group Holdings, Inc., Tremont Partners, Inc., Rye Select Broad Market Fund, LP, Rye Select Broad Market Prime Fund, LP, Rye Select Broad Market XL Fund, LP, Appellees.
    Nos. 4D09-4867, 4D10-988.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    Rehearing Denied Feb. 15, 2011.

      Edward A. Marod of Edward A. Marod, P.A., West Palm Beach, Gregory G. Ballard of Howrey LLP, New York, NY, and Williams & Connolly LLP, Washington, D.C., for appellant.
    Marshall A. Adams and Richard A. Ser-afini of Adams, Cassidy & Phillippi, Fort Lauderdale, Jeff I. Ross of Ross & Oren-stein LLC, James L. Volling, Michael F. Cockson and Liz Shields Keating of Faegre & Benson LLP, Minneapolis, Minnesota, and Gerald F. Richman and John R. Whittles of Richman Greer, P.A., West Palm Beach, for appellees Robert Cocchi, Penni Ellen Fromm, PEF Associates, Inc., Brian Gaines, John Johnson, Dr. Davis Schwartzwald, Rand Schwartzwald, Dr. Herbert Silverberg, John Silverberg, Dr. Jerry Weiss, Donna Weiss, The Norman Shulevitz Foundation, Inc., RM Management, LLC, Sande Wische, Carol Wische, Paula Zitrin, Dr. Jaron Zitron, Rachel Zitrin, and Dr. Roger Zitrin.
   WARNER, J.

KPMG appeals two non-final appealable orders. Although filed as separate appeals, we consolidate them for purposes of this opinion. The plaintiffs have filed suit against KPMG and others for damages as a result of losses of their investment in several partnerships. KPMG audited financial statements of partnerships in which the plaintiffs invested. Although the plaintiffs assert multiple causes of action against KPMG, the plaintiffs essentially claim that KPMG failed to use proper auditing standards, and that they relied on KPMG’s auditing statements to their detriment. In the first order, the trial court denied KPMG’s motion to compel arbitration of the dispute. In the second, the trial court denied KPMG’s motion to dismiss on forum non conveniens grounds. We affirm the order denying the motion to compel arbitration, because the arbitral agreement upon which KPMG relied would not apply to the direct claims made by the individual plaintiffs. We affirm the order denying the motion to dismiss for forum non conveniens, because neither the motion nor its attached affidavit, nor the argument at hearing, was legally sufficient to overcome the strong presumption in favor of the resident plaintiffs’ choice of forum.

The plaintiffs are nineteen individuals and entities, most of whom are Florida residents, who bought a limited partnership interest in one of three limited partnerships — referred to collectively here as the “Rye Funds.” The limited partnerships invested with Bernard Madoff in his infamous Ponzi scheme and lost millions of dollars. The limited partnerships were managed by Tremont Group Holding, Inc., and Tremont Partners, Inc. The plaintiffs sued the limited partnerships and the Tre-mont defendants, together with its auditing firm KPMG. As to KPMG, the plaintiffs alleged causes of action for negligent misrepresentation, violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), professional malpractice, and aiding and abetting a breach of fiduciary duty. Each cause of action is grounded in the alleged failure of KPMG to use proper auditing standards on the financial statements on which the plaintiffs relied in making and maintaining their investments in the partnerships. These re-suited in substantial misrepresentations of the financial health of the partnerships, causing the plaintiffs to lose all of their investments.

KPMG first moved to compel arbitration, basing its claim on its audit services agreement with the Tremont Group Holding, Inc., which contained an arbitration clause. That clause purports to require arbitration and/or mediation of all disputes arising from the services performed by KPMG for the Tremont defendants under the agreement, “including any dispute or claim involving any person or entity for whose benefit the services in question are or were provided.” None of the plaintiffs, however, expressly assented in any fashion to this agreement or the arbitration provision. Instead, KPMG claimed that the plaintiffs’ claims were derivative and arose from the audit services that KPMG performed under the contract. Therefore, according to KPMG, the arbitration clause should be enforced as to the plaintiffs’ claims.

Both parties agree that Delaware law applies to the resolution of this issue, as the Rye Funds and the Tremont defendants were all Delaware partnerships. In Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1033 (Del.2004), the Delaware Supreme Court established a test when analyzing whether an action by stockholders (or limited partners) was direct or derivative of the corporation/general partnership’s cause of action. The questions which must be asked are: 1) who suffered the harm, the corporation or the stockholders individually, and 2) who received the benefit of the recovery or remedy? Because the claims of negligent misrepresentation and violation of FDUTPA allege individual harm to the plaintiffs and involve torts directed at the individual limited partners, we conclude that the limited partners suffered individual harm. See, e.g., Anglo Am. Sec. Fund, L.P. v. S.R. Global Int'l Fund, L.P., 829 A.2d 143 (Del.Ch.2003); Newman v. Family Mgmt. Corp., 2010 WL 4118083 (S.D.N.Y. Oct.20, 2010) (under Delaware law, common law claims of negligent misrepresentation and fraud were direct claims which could be brought by limited partners); Stephenson v. Citco Group, Ltd., 700 F.Supp.2d 599, 608-12 (S.D.N.Y.2010) (negligent misrepresentation is a direct claim, and noting that the same set of facts may result in both direct and derivative claims). We therefore affirm the trial court’s denial of the motion to compel arbitration.

KPMG also moved to dismiss on forum non conveniens grounds, claiming that all of its activities occurred in New York where it audited the defendants. With its motion it filed a two-page affidavit of a senior manager, stating that in connection with its agreement to audit the various limited partnerships, it performed all of its work in New York. The trial court denied the motion, concluding that the affidavit was insufficient to carry KPMG’s burden of persuasion. On appeal, KPMG argues, among other things, that the trial court applied an incorrect legal standard in ruling on the forum non conveniens issue. Even if we were to agree, we conclude that the motion and supporting affidavit were legally insufficient to warrant a change of forum.

Florida has adopted the doctrine of forum non conveniens in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), and it is now codified in Florida Rule of Civil Procedure 1.061(a), which provides:

(a) Grounds for dismissal. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternative forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

A strong presumption favors a resident plaintiffs choice of forum. See Kinney, 674 So.2d at 91; Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111 (Fla. 4th DCA 1997). The defendant seeking dismissal bears the burden of persuasion as to each factor. See Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So.2d 912, 916 (Fla. 4th DCA 2008); Deluca v. Hislop, 868 So.2d 1254, 1257 (Fla. 4th DCA 2004).

In this case, the motion and the affidavit addressed only one private interest factor, namely the issue of availability of defense witnesses and documents in New York. The mere fact that the defendant’s witnesses and documents are all in another state does not automatically require dismissal for forum non conveniens, particularly considering the strong presumption in favor of the resident plaintiffs’ choice of forum. Without addressing all of the factors of private interest, as well as factors of public interest, the motion, the affidavit and the hearing argument were decidedly inadequate to warrant dismissal of the action. The trial court cannot be said to have abused its discretion in determining that the motion and affidavit were insufficient to carry the burden for KPMG.

Affirmed.

POLEN and FARMER, JJ., concur.

      . The three partnerships are Rye Select Broad Market Fund, L.P., Rye Select Broad Market Prime Fund, L.P., and Rye Select Broad Market XL Fund, L.P.


author: POLEN, J.

text:
    Barbara HALE and Sandra Segal, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D09-1901.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    Rehearing Denied Feb. 15, 2011.

      John P. Wiederhold of Wiederhold & Moses, P.A., West Palm Beach, for appellants.
    Neil Rose of Bernstein, Chackman, Liss & Rose, Hollywood, for appellee.
   POLEN, J.

Appellants, Barbara Hale and Sandra Segal, appeal the trial court’s order granting State Farm Insurance Company’s motion for final summary judgment. The trial court entered the order after determining that State Farm had no duty to defend or indemnify Hale and Segal in the underlying action in which their sister-in-law, Doris Wohl, sued both Hale and Segal for defamation and tortious interference with contract, and sued Segal for civil assault and civil battery.

In June 2008, Doris Wohl filed her second amended complaint in which she alleged that her sisters-in-law, Hale and Segal, “knowingly and/or negligently” communicated false accusations and false statements of fact regarding Wohl to Wohl’s employer, to Wohl’s husband’s attorney, and to the police. These accusations included that Wohl was “dangerous,” “psychotic,” “deranged,” and a thief. Wohl charged that Hale and Segal had made the statements in an effort to damage Wohl’s position and reputation with her employer and to get her arrested by the police.

Both Hale and Segal had separate but identical homeowners’ insurance policies with State Farm. Hale also had a personal liability umbrella policy with State Farm. State Farm brought an action for declaratory judgment to determine whether it had a duty to defend or indemnify Hale and Segal and later moved for final summary judgment in the declaratory action. Following a hearing, the trial court entered final summary judgment finding that State Farm had no duty to defend or indemnify Hale and Segal under their respective policies as the complaint was replete with allegations of intentional acts.

A trial court’s order entering final summary judgment is reviewed de novo. Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009). The court’s interpretation of an insurance policy is also subject to de novo review. Amerisure Ins. Co. v. Gold Coast Marine Distrib., Inc., 771 So.2d 579, 582 (Fla. 4th DCA 2000).

Insurance contracts are construed in accordance with the plain language of their provisions. Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). Where the pertinent policy language is susceptible to multiple reasonable interpretations, however, the policy is ambiguous and should be interpreted liberally in favor of the insured and strictly against the insurer. Id. Ambiguous policy exclusions are construed even more strictly against the insurer than coverage clauses. Id.

We agree with the trial court that there is no coverage under the homeowners policies. However, we hold that the trial court erred in determining that there was no duty to defend under the umbrella policy, and thus, we reverse and remand for State Farm to defend Hale.

An insurer’s duty to defend its insured is separate from and broader than its duty to indemnify the insured. Keen v. Fla. Sheriffs’ Self-Ins. Fund, 962 So.2d 1021, 1024 (Fla. 4th DCA 2007). “The existence of a duty to defend is determined based on only the allegations of the underlying complaint.” Id. “If the complaint alleges facts that could bring the insured partially within coverage of the policy, the insurer is obligated to defend the entire suit.” MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So.2d 1114, 1116 (Fla. 3d DCA 1997).

At the very least, State Farm has a duty to defend Hale in the present case and must defend her against all claims. Hale’s umbrella policy limits its coverage for personal liability to a “loss,” which is an accident resulting in personal injury or property damage. The policy specifically includes defamation in the definition of personal injury. At the same time, the policy does not provide insurance for personal injury when the insured acts with specific intent to cause harm or injury. Wohl’s complaint alleges that the defamation was done “knowingly and/or negligently,” and the factual allegations do not clearly exclude the incident from coverage. Accordingly, whether the loss in the instant case would be covered by the umbrella policy depends on whether Hale acted intentionally or negligently, which is an issue of fact for the jury. We reverse and remand for proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and LEVINE, JJ., concur.


author: GRIFFIN, J.

text:
    Amiri Talih LUNDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-299.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2010.
    Rehearing Denied Jan. 27, 2011.

      Paula C. Coffman, Office of Criminal Conflict and Civil Regional Counsel, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Amiri Tahih Lundy [“Lundy”] appeals his conviction of first-degree murder. On appeal, Lundy contends that it was reversible error for the trial court to deny his motion for mistrial following the statement by a State witness that she took a polygraph.

Lundy, along with Dominique Jamal Tolbert [“Tolbert”] and Maya Derkovic “[Derkovic],” were indicted for the gang-related first-degree murder of fifteen-year-old Harriet “Jackie” Curtis. Three weeks after the homicide, while in custody on another matter, Derkovic confessed to the murder. The State gave Derkovic a plea agreement in exchange for her truthful testimony at the trial of Lundy and Tol-bert. Lundy and Tolbert were tried together.

During the trial, after testifying to the circumstances of the homicide, Derko-vic was extensively cross-examined. While being cross-examined about a prior inconsistent statement concerning the choking of the victim, the following exchange between Tolbert’s counsel and Derkovic took place.

Q Did you not tell the police on October 10th that Mr. Tolbert supposedly held down Jackie’s right hand?
A No. I said left because he was on my left side.
Q That statement is in front of you; is that correct?
A Yes, sir.
Q Thick packet. Did you bring your police statement with you? I guess that means yes; is that correct?
A Yes, sir.
Q How many times have you read your statement before today’s trial testimony, Ms. Derkovic?
A Today I went through it. It’s a lot of paperwork. I went through it. I scanned through everything.
Q Okay. Can you please turn to page— page 18, please, lines — -just read lines 18 through 20 to yourself. Just read lines 18 through 20 to yourself.
AI see it.
Q Does that refresh your memory as to what you told the police back then?
A Yeah, it refreshes my memory. And I know why I said that. And I know why I said left because he was on my left side. If she was on her back, that would be her right arm.
Q Back then you told the police that Mr. Tolbert supposedly held down Jackie, the victim’s right hand or arm; is that correct?
A Yes, sir. Like I said, the reason why I said right is because-because if she’s on her back, her left would be-her right would be my left. And the reason I say left is because it’s my left, my left side.
Q Well, today you said left hand, back on October 7 you said right hand. Which is it?
A Okay. Her right side would be my left side. If we’re facing each other, your right is on my left, so for me to just be able to get it off the top of my head, especially talking with somebody about this, that is very serious and not even something to even stress over, it’s hard to get it off all right in details.
Q Did Mr. Lewis give you some discovery pages, um, recently that detail a visit you had on September 3 by an Officer McClellan?
AI don’t think so, no.
Q Well, on September 3 and October 8th, were you visited at the Orange County Jail by Officer McClellan?
A I might have. I don’t know. I don’t know exactly who the officer is. I might have.
Q If I show you-if I show you some paperwork on this case here, would it refresh your memory as to what you told this officer?
A That’s when I took the polygraph test?
Q Well, did you, in fact, discuss this case with McClellan?
A I don’t know the person’s name. I don’t know who it is. If that’s the day that I took the polygraph test, then, yes, I discussed it with somebody, but I don’t know the name.

(Emphasis added).

After Derkovic made those two polygraph references, Tolbert’s counsel approached the bench and moved for a mistrial. Lundy’s counsel joined in the motion. The State opposed the mistrial, arguing that Tolbert’s counsel was at fault and that the results of the polygraph were not mentioned. Tolbert’s counsel responded:

The fact that she’s testifying today with her plea offer, as Mr. Lewis [ASA] says, to testify truthfully, that implies that she passed the polygraph, because after all, she wouldn’t be truthful and she wouldn’t be testifying today if she didn’t pass the polygraph.

The trial court observed that the mention of the polygraph was inadvertent, that Derkovic said nothing about the results of the polygraph, and denied the motion. The trial judge offered defendants a curative instruction. Both declined. No other mention of the polygraph was made in the trial.

On appeal, Lundy again contends the reference to the polygraph was so prejudicial that failure to grant a mistrial was reversible error because the statements raised a necessary inference that Derko-vic’s testimony had been verified by the polygraph.

The State responds that the polygraph comments were invited by Tolbert’s counsel and the polygraph results were not mentioned. The State also points out that a curative instruction was offered, but declined. Lastly, the State suggests that any error is harmless because Derkovic testified that she was the one who murdered the victim.

A motion for mistrial is left to the sound discretion of the trial court, and we review such decisions for abuse of discretion. Salazar v. State, 991 So.2d 364, 371 (Fla.2008). A mistrial should be granted only when the error vitiates the entire trial. Id. at 372. “[N]ot every reference to a polygraph exam is inadmissible, nor does every improper admission of the taking of a polygraph exam require a mistrial.” Olivera v. State, 813 So.2d 996, 998 (Fla. 4th DCA 2002) (quoting McFadden v. State, 540 So.2d 844, 845 (Fla. 3d DCA 1989)).

Cases finding harmful error when a polygraph is referred to involve testimony revealing the results of the examination or where the only inference to be drawn from the testimony would be that the testimony of a critical witness had been corroborated by the polygraph. See Dean v. State, 325 So.2d 14, 17 (Fla. 1st DCA 1975).

Recently, in White v. State, 17 So.3d 822 (Fla. 5th DCA 2009), this Court found no error despite the fact that the jury learned from the State that the state’s witness was required to testify truthfully and take a polygraph examination as part of her plea bargain. Specifically, this Court held:

The mere mention of a polygraph examination is not prejudicial when no inference is raised as to the result or any inference that could be raised is not prejudicial. Neither [the witness’] testimony, nor the prosecutor’s statements, indicated the results or raised an inference as to the results of the polygraph examination.

Id. at 824 (citations omitted).

Likewise in Sullivan, 303 So.2d 632, 634 (Fla.1974), the witness explained that his negotiated life sentence in return for testifying against the defendant was contingent on having taken and passed a polygraph test. In finding there was no reversible error, the supreme court found the jury could have inferred that the witness had taken and passed the polygraph or that he would pass it when he took it. Id. at 635. The supreme court also noted that the evidence of the defendant’s guilt was “so overwhelming that we cannot say that this one utterance caused a miscarriage of justice which would necessitate a reversal of the conviction.” Id. at 636.

Similarly, in Hutchins v. State, 334 So.2d 112, 114 (Fla. 3d DCA 1976), the court found, in relevant part, that the testimony indicating the witness had taken a polygraph was not prejudicial error when the testimony did not raise an inference that the witness had either taken a polygraph or any result. In Rosa v. State, 27 So.3d 718, 723-24 (Fla. 4th DCA 2010), the Fourth District found that the testimony from the witness that he went to the state attorney’s office to take a polygraph was not prejudicial based on the evidence and the curative instruction given by the trial court.

Here, the references to the polygraph were elicited by defense counsel in the context of an unrelated issue that did not concern the outcome of the test. The witness did not reference the polygraph to suggest she was a truthful witness and, contrary to defense counsels’ fervent argument, this mention by the witness, in light of her agreement to testify truthfully at trial, does not require an inference that she “passed” the polygraph. Indeed, it barely suggests it. We cannot say that the trial court reversibly erred in failing to order a mistrial.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.

      . Lundy also argues that it was error to deny his motion for mistrial made after the prosecutor impermissibly commented upon Lun-dy's right to remain silent and failure to testify at trial. We affirm on this issue without discussion.


text:
    Kevin J. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4661.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.
    Kevin J. Miller, pro se, Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Kevin J. Miller appeals the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Miller raises two issues in his motion. We affirm the summary denial of ground two without further discussion. However, for the reasons discussed below, we reverse and remand the denial of ground one.

Mr. Miller pleaded guilty to armed robbery and attempted felony murder. On direct appeal, the court reversed Mr. Miller’s conviction for armed robbery because the weapon used to support the charge of armed robbery was an automobile. See Miller v. State, 988 So.2d 138, 139 (Fla. 1st DCA 2008).

In ground one of his post-conviction motion, Mr. Miller alleges that but for his counsel’s misadvice that there were no viable defenses to the charge of armed robbery, he would not have pleaded guilty but would have proceeded to trial. This claim remains unrefuted by the record. According to Mr. Miller, his understanding, from discussions with his counsel, was that he should plead guilty because, although “a jury would likely return a favorable verdict on the alleged felony murder, an unfavorable verdict would most likely be returned on the alleged armed robbery.” Because both charges supported a sentence of twenty-five years’ imprisonment, Mr. Miller would not have received a lower sentence by succeeding in an acquittal on the felony murder charge.

However, simple robbery can only support a sentence of fifteen years’ imprisonment. Therefore, Mr. Miller had a chance of reducing his overall sentence to fifteen years had he received an acquittal on the felony murder charge. For this reason, Mr. Miller has sufficiently alleged prejudice pursuant to Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We therefore reverse and remand for the trial court to either attach such portions of the record which conclusively refute this claim, or to hold an evidentiary hearing.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BENTON, C.J., WETHERELL, and ROWE, JJ., concur.


author: WALLACE, Judge.

text:
    COUNTRY PLACE COMMUNITY ASSOCIATION, INC., Appellant, v. J.P. MORGAN MORTGAGE ACQUISITION CORP., Appellee.
    No. 2D10-569.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2010.

      Leslie M. Conklin, Clearwater, for Appellant.
    No appearance for Appellee.
   WALLACE, Judge.

Country Place Community Association, Inc., appeals the circuit court’s order denying its motion for attorney’s fees under section 57.105(1), Florida Statutes (2008). Country Place moved for an award of attorney’s fees against J.P. Morgan Mortgage Acquisition Corp. after the circuit court dismissed J.P. Morgan’s mortgage foreclosure action filed against Country Place and several other defendants. The circuit court denied the motion for attorney’s fees because J.P. Morgan could still prevail in a new foreclosure action. But the circuit court should have assessed attorney’s fees under the statute against J.P. Morgan for asserting an unsupportable claim even though J.P. Morgan may prevail if the action is refiled. For this reason, we reverse the circuit court’s denial of attorney’s fees to Country Place.

I. THE FACTS AND PROCEDURAL BACKGROUND

J.P. Morgan filed an action against several defendants — including Country Place, a lienholder — to foreclose a mortgage on a residence located in Hillsborough County. J.P. Morgan included in its complaint a count seeking the reestablishment of a lost note. The lender named in the copy of the note and mortgage attached to the complaint was First Franklin Financial Corporation. The mortgage designated Mortgage Electronic Registration Systems, Inc., as the mortgagee. J.P. Morgan did not attach to its complaint any evidence of an assignment of either the note or the mortgage in its favor. When J.P. Morgan filed the action, no assignment of the mortgage in its favor had been recorded in the public records of Hillsborough County.

Country Place answered the complaint and asserted the defense that J.P. Morgan lacked standing to bring the action because it did not own the note and mortgage. During the pendency of the foreclosure action, J.P. Morgan never produced any evidence that it owned the note and mortgage that were the subject of the proceeding. As a result of its failure to respond to requests for admissions propounded to it by Country Place, J.P. Morgan admitted that it had no evidence to show that it owned or possessed the note and mortgage on the date it filed the mortgage foreclosure action. J.P. Morgan never sought relief from the effect of its failure to respond to the requests for admissions.

Country Place moved for summary judgment based on J.P. Morgan’s inability to demonstrate that it owned or possessed the note and mortgage when the action was filed. J.P. Morgan did not file any affidavits in opposition to Country Place’s motion or otherwise respond to it. In fact, J.P. Morgan’s counsel failed even to attend the hearing. After the hearing, the circuit court entered a final summary judgment dismissing the mortgage foreclosure action without leave to amend. In the order granting the summary judgment, the circuit court also directed: “A new suit must be filed.” J.P. Morgan did not either move for rehearing of the summary judgment or take an appeal from it.

Country Place had previously served, but did not file, a copy of its motion for attorney’s fees on J.P. Morgan in accordance with the safe harbor provision of section 57.105(4). After its receipt of a copy of the motion, J.P. Morgan neither withdrew its complaint nor took any steps to address the issue of its standing to maintain the foreclosure action. Upon the entry of the summary judgment in its favor, Country Place timely moved for an award of attorney’s fees under section 57.105(1). Based on J.P. Morgan’s admitted lack of standing to maintain the action when it was filed, Country Place argued that J.P. Morgan and its attorneys knew or should have known that their action was unsupportable.

At a hearing on Country Place’s motion for attorney’s fees, an attorney appeared for J.P. Morgan and announced that he had in his possession “the original note and mortgage evidencing that we have a validly endorsed note in which [J.P. Morgan] does have the standing to bring forth this action.” The circuit court informed counsel for J.P. Morgan that he would need to file a new foreclosure action. The circuit court then heard arguments on the issue of Country Place’s entitlement to attorney’s fees under section 57.105(1). In addition, the circuit court took evidence and heard arguments concerning the amount of a reasonable fee for Country Place’s attorney.

After the hearing, the circuit court entered a written order denying Country Place’s motion. On the issue of entitlement, the circuit court ruled:

[J.P. Morgan’s] counsel argues that there should be no entitlement to fees at [J.P. Morgan’s] expense because it still has a viable cause of action, and already obtained a default, against the primary defendant, Ricardo Barranco. [J.P. Morgan] holds the subject mortgage and note and is entitled to foreclose its note and mortgage as against all defendants, including [Country Place].
This Court agrees with [J.P. Morgan] and determines, as a matter of law, that [Countrg Place] is not entitled to the claimed attorney’s fees under the fee-shifting provisions of Chapter 57.

Although its ruling on the issue of entitlement made it unnecessary to address the issue of amount, the circuit court also found that the amount of a reasonable attorney’s fee for Country Place’s counsel would be $6945. This appeal followed.

II. THE STANDARD OF REVIEW

Generally speaking, our standard of review of an order denying a motion for attorney’s fees and costs under section 57.105(1) is abuse of discretion. See Gahn v. Holiday Prop. Bond, Ltd., 826 So.2d 423, 425-26 (Fla. 2d DCA 2002) (citing Dep’t of Transp. v. Kisinger Campo & Assocs., 661 So.2d 58, 59 (Fla. 2d DCA 1995)). But where, as in this case, the circuit court’s determination of entitlement to attorney’s fees is based on a conclusion of law concerning the interpretation of a statute or contractual provision, we employ a de novo standard of review. See Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000); Ware v. Land Title Co. of Fla., Inc., 582 So.2d 46, 46-47 (Fla. 2d DCA 1991); Stevens v. Zakrzewski, 826 So.2d 520, 521 (Fla. 4th DCA 2002).

III. DISCUSSION

We begin our discussion by noting that J.P. Morgan’s counsel appeared at the hearing on Country Place’s motion for attorney’s fees and successfully argued that Country Place was not legally entitled to an award of attorney’s fees under section 57.105(1). However, J.P. Morgan has failed to file a brief to assist this court in resolving the issues raised by Country Place’s appeal of the circuit court’s order. As this court has observed before:

Failure to file a brief places an undue burden on the appellate court and reflects an omission of appellee’s responsibility to support the trial court. If the ruling of the trial court is not worthy of support, then appellee ought to confess error and join with the appellant in seeking a reversal.

Geisler v. Geisler, 397 So.2d 1216, 1217 n. 1 (Fla. 2d DCA 1981).

Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action. See Bank of N.Y. v. Williams, 979 So.2d 347, 347 (Fla. 1st DCA 2008); Jeff-Ray Corp. v. Jacobson, 566 So.2d 885, 886 (Fla. 4th DCA 1990). It follows that when J.P. Morgan filed its mortgage foreclosure action, it knew or should have known that its action was unsupported by the material facts necessary to establish the claim. So, absent some compelling reason to the contrary, Country Place was entitled to an award of attorney’s fees under section 57.105(1). See In re Forfeiture of: 1997 Jeep Cherokee, 898 So.2d 223, 225 (Fla. 2d DCA 2005); Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 619-20 (Fla. 4th DCA 2006).

The circuit court concluded that Country Place was not entitled to an award of fees under the statute because J.P. Morgan might still prevail when it filed a new foreclosure action. The circuit court’s ruling would probably have been correct under the version of the statute in effect before the 1999 amendments. See ch. 99-225, § 4, at 1406, Laws of Fla. Under the earlier version of the statute, the determination of a party’s entitlement to fees had to be made based on the entire action. See Remova Pool Fence Co. v. Roth, 647 So.2d 1022, 1024 (Fla. 4th DCA 1994) (construing the 1991 version of section 57.105(1)), superseded by statute on other grounds as stated in Heilman v. Fla. Dep’t of Revenue, 727 So.2d 958 (Fla. 4th DCA 1999). The circumstance that a portion of the action might be frivolous did not warrant an award of attorney’s fees under the statute. Id.

But the 1999 amendments to the statute have “lowered the bar a party must overcome before becoming entitled to attorney’s fees pursuant to section 57.105, Florida Statutes.” Albritton v. Ferrera, 913 So.2d 5, 8 (Fla. 1st DCA 2005). In 1999, section 57.105(1) was amended to provide in pertinent part as follows:

Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

Ch. 99-225, §§ 4, 36, at 1406, 1428, Laws of Fla. (effective Oct. 1, 1999) (emphasis added). As amended, the statute authorizes “an award of attorney’s fees when a claim, pleading or other filing — as opposed to the entire case — is without merit.” Walker v. Cash Register Auto Ins. of Leon County, Inc., 946 So.2d 66, 70 (Fla. 1st DCA 2006); see also Boca Burger, Inc. v. Forum, 912 So.2d 561, 570 (Fla.2005) (“[T]he statute no longer applies only to an entire action; it now applies to any claim or defense.”).

The First District has explained this difference between the prior and current versions of the statute as follows:

A court could award attorney’s fees under the prior version of section 57.105, only if there was a “complete absence of a justiciable issue of either law or fact.” § 57.105, Fla. Stat. (1997); Muckenfuss v. Deltona Corp., 508 So.2d 340 (Fla.1987). The essential finding the court was required to make to justify an award of fees under the prior statute could only be made at the conclusion of the entire case. Until then, the trial court would be unable to determine whether all of the arguments on one side of the case were frivolous.
In contrast, the present version of the statute authorizes an award of attorney’s fees “on any claim or defense at any time during a civil proceeding or action.” § 57.105, Fla. Stat. (1999) (emphasis added). This language plainly signifies that the court may award an attorney’s fee for a particular claim or defense, even before the case has been concluded. It is possible then that a court may assess attorney’s fees against a party who has asserted an unsupportable claim or defense, even though that party might ultimately prevail in the case on some other ground.

Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 417 (Fla. 1st DCA 2002) (second emphasis added).

The decision in Barthlow v. Jett, 930 So.2d 739 (Fla. 1st DCA 2006), is directly on point. In Barthlow, the plaintiff filed an action for wrongful discharge against the defendant under the Florida Whistleblower’s Act, §§ 112.3187-.31895, Fla. Stat. (2004). Id. at 740. The defendant moved to dismiss on the ground of the plaintiffs failure to give the requisite notice in accordance with section 768.28(6)(a), Florida Statutes. Id. The circuit court dismissed the action without prejudice based on the plaintiffs admitted failure to comply with the statutory notice requirements. Id. Later, the circuit court granted the defendant’s request for fees under section 57.105. Id. The plaintiff appealed the fee award. Id.

On appeal, the plaintiff argued that the circuit court erred in awarding fees he-cause it also determined that the whistle-blower action was not frivolous. Id. at 741. The First District rejected this argument. Citing its earlier decision in Her-ron, the First District explained that the defendant was entitled to fees at that particular point in the litigation whether or not the plaintiff ultimately prevailed on her whistle-blower action. Id.

Here, as in Barthlow, J.P. Morgan’s mortgage foreclosure action was unsupported by the material facts necessary to establish the claim because J.P. Morgan lacked standing when the action was filed. For the purpose of awarding fees under section 57.105(1), it does not matter that J.P. Morgan may be able to prevail in a new action to foreclose. Thus the circuit court erred as a matter of law in concluding that J.P. Morgan’s ability to file a new foreclosure action disentitled Country Place to an award of attorney’s fees. Accordingly, we reverse the circuit court’s order to the extent that it denies Country Place’s motion for attorney’s fees. On remand, the circuit court shall enter an order in accordance with section 57.105(1) awarding Country Place its attorney’s fees in the amount of $6945.

Reversed in part and remanded.

LaROSE and MORRIS, JJ., Concur.

      . The other parties in the circuit court proceeding did not join in or oppose this appeal. We have omitted them from the style of this case to avoid confusion.

      . The note had apparently been endorsed in blank. Oddly, J.P. Morgan had filed an "Affidavit of Lost Original Instruments" after the entry of the adverse summary judgment and about seven weeks before the hearing on Country Place’s motion for attorney’s fees. In the affidavit, J.P. Morgan's representative swore that the original note and mortgage "have been lost or misplaced and cannot be located by Plaintiff. Plaintiff has caused an extensive search of Plaintiff’s records and said Note and Mortgage cannot be found.”

      . Country Place’s counsel stated at the beginning of the hearing that he was requesting a hearing on “both entitlement and quantum.” After the parties had made their arguments on the issue of entitlement, the circuit court announced:
      Well, I’m going to temporarily reserve on the issue of entitlement. If I go in [Country Place’s] favor, then I want to have, if necessary for appellate review, an amount of money laid down that I were to find reasonable and causally necessary.
      If I don't, then that would provide [Country Place] with at least an evidentiary basis where, if the District Court disagrees with me on that count, we wouldn’t have to do this exercise again.
      Country Place’s counsel did not object to the procedure announced by the circuit court. On appeal, Country Place does not challenge the circuit court’s determination that $6945 was a reasonable fee for the services of its attorney.

      . Since 1999, section 57.105(1) has been amended to provide for an award of prejudgment interest on attorneys’ fees awarded under that section. See ch. 10-129, §§ 1, 2, at 641-42, Laws of Fla. (effective July 1, 2010).


author: SILBERMAN, Judge.

text:
    A.B.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-273.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2010.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

A.B.S., a juvenile, seeks review of an order withholding adjudication and placing him on four months of probation for possession of a controlled substance. A.B.S. admitted to the charge while reserving the right to appeal the denial of his motion to suppress. Because the search of A.B.S.’s person was not supported by a legal basis, we reverse.

A.B.S. was taken into custody as a possible runaway in need of services pursuant to section 984.13, Florida Statutes (2009). The officer who took A.B.S. into custody stated that, at a minimum, he was going to take A.B.S. home. Before the officer placed A.B.S. inside his police cruiser, he handcuffed and searched A.B.S. as was his practice. During the search, the officer retrieved a set of keys from the right, front pocket of A.B.S.’s pants. The key-chain had an aluminum screw-top container on it that the officer stated was of the type commonly used to store illegal drugs. The officer shook the container, and it rattled in a way that made the officer suspect there were pills inside. The officer then opened the container and discovered a controlled substance. The officer acknowledged that he did not conduct a pat down before reaching into AB.S.’s pocket.

We reverse the denial of A.B.S.’s motion to suppress the contents of the container because the officer did not have a legal basis to search A.B.S.’s person before transporting him in his cruiser. See L.C. v. State, 23 So.3d 1215, 1218 (Fla. 3d DCA 2009). Circumstances that allow a juvenile to be taken into custody under section 984.13 are not crimes; therefore, the search incident to arrest exception to the warrant requirement does not apply. Id.

Further, in this case the officer had no indication that A.B.S. was in possession of either a weapon or contraband when he searched A.B.S. He admitted that he searched A.B.S. solely because it was his policy to search people before transporting them in his cruiser. As the Third District noted in L.C., “Although we appreciate the concern of officer safety, we are aware of no case that stands for the proposition officers can search an individual without having performed a pat-down simply because the individual is being placed in a police vehicle.” Id. at 1219. Because the search was conducted without a legal basis, the trial court erred in denying the motion to suppress.

Reversed and remanded.

DAVIS and BLACK, JJ„ Concur.


author: SCHWARTZ, Senior Judge.

text:
    Teresa LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1912.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.

      Jiulio F. Margalli, Key West, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an appeal from a judgment and sentence entered on July 7, 2010 upon the revocation of probation for the last of a series of violations of the last of a series of terms of probation first imposed upon the appellant for an offense that occurred on April 19, 1991. The sole issue on appeal concerns the alleged invalidity, under the ex post facto doctrine discussed in Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798), of the 2001 amendment to the “tolling” statute, Fla. Stat. § 948.06(1)(d), pursuant to which the trial court retained and asserted jurisdiction over the proceeding. Subsequent to the filing of the brief of appellant, the Supreme Court decided the controlling case of Shenfeld v. State, 44 So.3d 96 (Fla.2010), which rejected the identical claim, based there on the alleged affect of the 2007 amendment to Fla. Stat. § 948.06(1)(d). Shenfeld was taken on conflict jurisdiction, certified by the Fourth District between its decision in Shenfeld, 14 So.3d 1021 (Fla. 4th DCA 2009), which the Supreme Court approved, and Harris v. State, 893 So.2d 669 (Fla. 1st DCA 2005) and Frye v. State, 885 So.2d 419 (Fla. 1st DCA 2004), which directly involved the 2001 amendment and upon which the appellant primarily relied. While Shenfeld specifically declined to “address the constitutionality of the earlier version of the statute,” 44 So.3d at 102, there is no principled difference in the two statutes as to the legal point in issue. Hence we affirm the judgment and sentence under review on the authority of the reasoning in Shenfeld v. State. See also Palmer v. State, 4D09-3980, 37 So.3d 977 (Fla. 4th DCA June 23, 2010); Harper v. State, 955 So.2d 617 (Fla. 5th DCA 2007).

Affirmed.


author: FLEMING, J., Associate Judge.

text:
    Melissa M. JANSSENS, Appellant, v. Bruce P. JANSSENS, Appellee.
    No. 5D09-3712.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2010.

      Douglas A. Kneller of The Law Office of Douglas A. Kneller, P.A., Daytona Beach, for Appellant.
    Richard J. D’Amico, Ormond Beach, for Appellee.
   FLEMING, J., Associate Judge.

Melissa Janssens timely appeals a final judgment of dissolution of marriage rendered October 2, 2009 (nunc pro tunc September 8, 2009). She raises a single issue on appeal — whether the trial court abused its discretion by awarding her alimony of only one dollar per month. For the reasons set forth below, we find that the court did abuse its discretion and reverse and remand for further proceedings consistent with this opinion.

Melissa and Bruce Janssens were married on September 24, 1994. They have one child, Kimberly, born July 14, 1998. The couple separated in June 2008. The parties were able to reach an agreement regarding a parenting plan and time-sharing schedule. By the time of trial in August 2009, the remaining issues were equitable distribution, alimony, child support and attorney’s fees.

In reaching its alimony award of one dollar per month, the trial court considered the relevant economic factors set forth in section 61.08(2), Florida Statutes (2009). The court first observed that the parties enjoyed an upper middle-class lifestyle but had lived well beyond their means. At the time of the marriage the Husband had a bachelor degree and the Wife had an associate degree. The Husband worked as a computer software consultant and the Wife worked as an associate editor for a publishing company. She did not work outside the marital home after the birth of their child, but had been looking for employment since the parties separated and testified that she had just recently started working part-time for an online construction journal.

At the time of trial, the court found the Husband to have a monthly gross income of $7,667 from his work as an independent contractor in another state. After deductions, his net income is $5,475 per month. The wife was found to have a monthly gross income of $520, resulting in a net of $480 per month.

The parties’ liabilities included a 2007 Internal Revenue Service (IRS) debt of $12,000, a 2008 IRS debt of $18,000, a promissory note owed to a friend of the Husband for $24,750, a personal loan from a relative for $12,000, various credit card and other consumer debts totaling $19,468, and $900 for a horse they once owned for their daughter. The court apportioned their respective liabilities resulting in debt to the Husband of $57,184 and debt to the Wife of $29,934.

Regarding the Wife’s need for alimony, the court considered her financial affidavit and noted that many of her expenses were high. After reducing them and imputing minimum wage, the court found the Wife to have a need of $3,119 per month. Despite the Wife’s significant need for spousal support and the great disparity in the parties’ income, the court found that the Husband’s liabilities, which the court also reduced, meant that he did not have sufficient funds to support himself and, therefore, had no present ability to pay.

It has long been established that “need” and “ability to pay” are the primary elements to be considered by a court in determining permanent periodic alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In this case, the parties agree that the Wife has a need for spousal support. What is in dispute is whether the former Husband has the ability to pay.

The court found that the Husband did not have sufficient monies to support himself “in light of the child support he is required to pay....” The Wife cites this statement from the final judgment as proof that the court improperly determined child support before calculating alimony. However, the record shows this is not the case. Instead, the court was merely noting that when considering the Husband’s child support obligation, along with his other liabilities, he lacks the present ability to pay alimony.

The real problem in this case is not the court’s child support calculation. Rather, it is the court’s conclusion that the parties’ pre-existing debt, most of which was apportioned to the Husband, takes priority over the Wife’s current needs. We are unaware of any authority which would compel such a conclusion.

The trial court in Helling v. Bartok, 987 So.2d 713 (Fla. 1st DCA 2008), was faced with a similar situation. Mr. Helling’s reported expenses exceeded his net monthly income of $6,235.87 per month. The wife’s net income from employment amounted to $1,427.32 per month. The court found no abuse of discretion in the trial court’s decision that the husband had an ability to pay $1,500 per month in permanent alimony. See also Rey v. Rey, 598 So.2d 141, 144-45 (Fla. 5th DCA 1992), where the case was remanded for the trial court to consider increasing an alimony award of $1,000 per month to the former wife who had been “shortchanged” where the former husband earned $5,814 per month and claimed monthly expenses totaling $6,279.

The Husband argues that the court had no choice but to protect his creditors because if he lost his job due to a debt problem, then he would totally be unable to support his child. He testified that a lot of companies, like his current employer, do background checks, and a bankruptcy “might raise some red flags.” But so might the foreclosure the parties were already facing. The Husband also contends that the IRS debt should be given some priority because it would have the power to garnish his wages. This argument ignores the fact that the final judgment already assigns $21,000 of the $30,000 IRS debt to the Wife.

Although the trial court made efforts to adhere to Florida’s alimony statute, the Husband was left in a much better position to deal with his post-dissolution debts than was the Wife. The Wife, who needs more than $3,000 per month, was left to support herself and her daughter on (imputed) income of minimum wage plus child support, a total of roughly $2,000 per month. On the other hand, the Husband, who lives alone, continues to net over $4,000 per month even after the payment of child support. For these reasons we conclude that the trial court abused its discretion in making its alimony determination.

We remand for the trial court to reconsider the income of the parties and their financial needs and obligations in making some increase in the permanent periodic alimony.

REVERSED and REMANDED.

EVANDER and COHEN, JJ., concur.

      . The court did order the Husband to pay periodic alimony of One Dollar ($1.00) per month to allow the court to retain jurisdiction should the Wife file for modification. The court also noted that the Husband would be receiving a $2,700 per diem travel reimbursement and ordered that it be paid to the Wife as a lump-sum supportive alimony.

      . Effective January 1, 2011, section 61.08(2), Florida Statutes, has been amended to expressly require the court to first make a specific factual determination of "actual need” and "ability to pay” in determining whether to award alimony or maintenance.

      .The court’s full statement found at paragraph lOg. of the final judgment is as follows: "Although the Court finds the Wife will have a net need in excess of $3,119 per month even if minimum wage was imputed to her, the Court finds that the Husband does not have sufficient monies to support himself, in light of the child support he is required to pay under Paragraph 11 below [$1,196 per month, including $200 arrearage]. Although the Court finds that the Wife has a need for spousal support, the Court also finds that the Husband does not have the present ability to pay.”

      . The marital home, which was about to go into foreclosure, was encumbered by a first mortgage and a home equity line of credit. The final judgment notes that mortgage payments were approximately four months in arrears and the court found the house to have a negative value exceeding $81,000. The parties were ordered to effectuate a "short sale” and to share any deficiency equally.