author: SHEPHERD, J.

text:
    Marcus Saiz DE LA MORA, etc., et al., Appellants, v. David ANDONIE, et al., Appellees.
    No. 3D09-3427.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2010.

      R.A. Cuevas, Jr., Miami-Dade County Attorney, Melinda S. Thornton and Shani-ka A. Graves, Assistant County Attorneys; Bill McCollum, Attorney General, and Mark T. Aliff, Assistant Attorney General (Tallahassee), for appellants.
    Tannebaum Weiss and Daniel A. Weiss, Miami, for appellees.
    Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.
   SHEPHERD, J.

This is an appeal by the Miami-Dade County Property Appraiser and the Florida Department of Revenue from a final summary judgment, bestowing an exemption from ad valorem taxation upon the owners of residential real estate in Miami-Dade County on the basis the property is the “permanent residence” of them minor children, who are “naturally dependent” upon them within the meaning of article VII, section 6(a) of the Florida Constitution. We affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

The homeowners in this case, David and Ana Andonie, are citizens of Honduras, lawfully residing in the United States pursuant to temporary visas issued by the United States Department of Homeland Security. In 2003, the Andonies purchased a condominium in Key Biscayne, Florida, which they occupy together with their three minor children, ages 7, 12, and 14. The children are United States citizens. Prior to January 1, 2006, the Andonies timely filed an application for an exemption from real estate taxes on the property, pursuant to article VII, section 6(a) of the Florida Constitution, for the 2006 ad valorem taxing year. See Art. VII, § 4(d), Fla. Const. On the application form, David Andonie stated under oath: “My children are U.S. citizens, aged 7, 12, and 14 living at this address and are legally and naturally dependent on me, thereby qualifying for the homestead exemption.” It is undisputed that David and Ana Andonie are legally incapable of qualifying as “permanent residents” of Miami-Dade County. See Juarrero v. McNayr, 157 So.2d 79, 81 (Fla.1963) (finding that a non-citizen present in the United States under a temporary visa “cannot ‘legally,’ ‘rightfully’ or in ‘good faith’ make or declare [himself]” a “permanent resident” of this state for purposes of article VII, section 6(a)); DeQuervain v. Desguin, 927 So.2d 232, 235 (Fla. 2d DCA 2006); Alcime v. Bystrom, 451 So.2d 1037, 1037 (Fla. 3d DCA 1984). The Miami-Dade County Property Appraiser administratively denied the application, but that decision was overturned upon petition by the Andonies to the Miami-Dade County Value Adjustment Board. In due course, the Property Appraiser contested the decision in an original proceeding filed in the Eleventh Judicial Circuit Court. See § 194.171(1), Fla. Stat. (2006). On cross-motions for summary judgment, the trial court found the Andonies were entitled to the exemption.

ANALYSIS

The Florida Constitution protects Florida homesteads in three distinct ways. Snyder v. Davis, 699 So.2d 999, 1001-02 (Fla.1992). Article VII, section 6(a) of the Florida Constitution provides homesteads with an exemption from taxes. Id. Article X, sections 4(a) and 4(b) afford qualifying homestead property life-time and death-time exemptions from forced sale. Id. Article X, section 4(c) imposes restrictions on the devise of homestead property for the benefit of a surviving spouse or minor child. Id. This case concerns the first of these protections.

The current provision reads in pertinent part:

SECTION 6. Homestead exemptions—

(a) Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner, shall be exempt from taxation thereon, except assessments for special benefits, up to the assessed valuation of twenty-five thousand dollars and, for all levies other than school district levies, on the assessed valuation greater than fifty thousand dollars and up to seventy-five thousand dollars, upon establishment of right thereto in the manner prescribed by law.

Art. VII, § 6(a), Fla. Const, (emphasis added). The plain language of article VII, section 6(a) provides that an owner of residential real estate in Florida is constitutionally entitled to an exemption from ad valorem taxation — more accurately, a reduction in the assessed value — under either of the following two separate and independent scenarios:

1. Where the owner of the property is a permanent resident on the property,
or
2. Where someone legally or naturally dependent on the owner is a permanent resident on the subject property-

See id.

Section 196.012, Florida Statutes (2006), defines “permanent residence” for purposes of this provision as follows:

(18) “Permanent residence” means that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning. A person may have only one permanent residence at a time; and, once a permanent residence is established in a foreign state or country, it is presumed to continue until the person shows that a change has occurred.

(Emphasis added).

In support of his motion for summary judgment in the trial court, David Andonie swore by affidavit to the following:

AFFIDAVIT OF DAVID ANDONIE
The following affidavit of David Ando-nie is made for the purpose of supporting his application for homestead exemption from property taxation for 2006 for property identified by property tax folio number 24-4232-016-2730 (“subject property”):
1. My wife Ana and I bought a condominium for ourselves and our children in April, 2003. The condominium unit is located....
2. I filed a homestead exemption application with respect to the subject property as of January 1, 2006. To the exclusion of all others, this is our home where in good faith we live. It is the residence of my wife and myself, and the permanent residence of our three U.S.-born children.
3. In this present summary judgment proceedings, my wife and I do not claim the right to homestead exemption based on our permanent residence at this location, but upon the fact that our three minor children, who are naturally and legally dependent upon my wife and me, live here on the subject property, which we as their parents and natural and legal guardians, make their home. For our children, this home is their permanent residence, where they live along with their mother and me.
7. Because our three children are U.S.born and are U.S. citizens, no one can lawfully tell them that they do not have the right to remain permanently in the United States. The subject property is the permanent residence of each of our three children, Nicholas, Luisa, and Kristen.
9. I claim no other homestead tax exemption in Florida for myself nor for others naturally or legally dependent on me for support. All three of my children were, as of January 1, 2006, and through today, are entirely dependent on my wife and me for support and maintenance, living and permanently residing on the subject property.

There is no evidence contradicting the factual assertions made by David Andonie in his affidavit, nor is there any evidence in the record from which we can conclude the affidavit was made other than in good faith. Although one might wonder whether his assertions are congruent with the laws of nature, we apply in this court the constitution and laws of the State of Florida. Applying this law, whether of the statutory variety or an ordinary and customary usage standard, it cannot be gainsaid that these Honduran parents have adequately declared that whatever may become of their ability to remain in the United States in the future, they fully plan and intend for their U.S.-born children to “permanently resid[e]” in the United States.

Despite the Andonies’ sworn assertions, the Property Appraiser asserts in these situations the taxpayer-parents still cannot maintain an exemption through their children. The argument appears to be comprised of two thrusts. First, the Property Appraiser asserts the minor children’s domicile is dependent upon the domicile of the father, who is a non-Florida resident. Secondly, the Property Appraiser relies on the term “who resides thereon,” as found in section 196.031(l)(a), to argue the statute requires the title owner to reside on the property permanently. As discussed below, neither argument has merit.

Minors

First, relying principally on authorities that pre-date the adoption of article VII, section 6(a), the Property Appraiser advances the broadly accurate proposition in the common law that “ ‘[Mjinors are incapable in Florida of making a choice of a domicile ... independently of the domicile of their father [or other parent] ...,’” citing to Beekman v. Beekman, 53 Fla. 858, 43 So. 923, 924 (Fla.1907), and Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694, 702 (Fla.1929). On the strength of this common law proposition, the Property Appraiser asserts that because the domicile of the Andonies must be a place other than Florida, the domicile of their children must also be a place other than Florida. Not only is this general common law proposition contravened by the constitutional provision we are called upon to apply in this case, but also the Property Appraiser’s reliance on these authorities is itself misplaced. A careful study of these cases — both marital dissolution cases in which the dispositive issue was whether the requisite jurisdictional residency requirement had been satisfied by the petitioner — reveals that the petitioner either was seeking to include periods of time during her minority when she was either living in another state with her parents and “merely intended” to move to Florida, see Beekman, 53 Fla. at 862, 43 So. at 924, or could not prove her parents were domiciled in Florida during the relevant time period, see Chisholm, 98 Fla. at 1219, 125 So. at 702. In factual contrast, both the parents and the children in this case were present in Miami-Dade County on the January 1, 2006, ad valorem taxing date.

In further support of the first argument, the Property Appraiser seeks to invoke Florida Administrative Code Rule 12D-7.014, a rule of the Florida Department of Revenue entitled “Civil Rights,” which decrees (one might argue, oxymo-ronically) that “An unmarried minor whose disabilities of non-age have not been removed may not maintain a permanent home away from his parents such as to entitle him or her to homestead exemption,” citing, coincidentally, Beekman, which we already have fully discredited as applicable to the interpretive issue in this case. Of course, this rule is as much in conflict with the express language of article VII, section 6(a), as is the common law principal previously discussed, which the Property Appraiser would have us apply in contravention of the plain language of the provision — so much so, apparently, that the Department of Revenue itself makes no defense of the rule. The express will of the people, as articulated by them in their constitution, may not be altered, contracted or enlarged by legislative or executive branch enactments or rules. See Sparkman v. State ex rel. Scott, 58 So.2d 431, 432 (Fla.1952) (holding that a statute imposing a one-year residency requirement on entitlement to an exemption from ad valorem taxation under article X, section 7 [now article VII, section 6(a) ] of the Florida Constitution was invalid because it was materially different from the constitutional provision and attempted to restrict it). The Andonies seek to obtain an exemption from ad valorem taxation under article VII, section 6(a), based upon the permanent residence of their natural children. The Property Appraiser may not condition this benefit on the legal status of the Andonies in the United States.

In a final attempt to demonstrate that a minor cannot maintain a permanent residence separate from their parents, the Property Appraiser calls our attention to opinion 82-27, in which the attorney general opined that an out-of-state parent could not receive the benefit of the ad valorem taxation exemption on real property in Florida, which was claimed to be the permanent residence of a minor college student. Op. Att’y Gen. Fla. 82-27 (1982). Because the opinion is based upon the same faulty application of Beekman and Chisholm, as previously discussed, we do not find the opinion persuasive.

“Who Resides Thereon”

The Property Appraiser’s second argument is that in addition to holding either legal or equitable title, as required by article VII, section 6(a), the person claiming the exemption — David and Ana Andonie in this case — must also permanently “reside thereon.” The Property Appraiser invokes section 196.031(l)(a) of the Florida Statutes in support of this argument. The provision reads:

(l)(a) Every person who, on January 1, has the legal title or beneficial title in equity to real property in this state and who resides thereon and in good faith makes the same his or her permanent residence, or the permanent residence of another or others legally or naturally dependent upon such person, is entitled to an exemption from all taxation, except for assessments for special benefits, up to the assessed valuation of $25,000 on the residence and contiguous real property, as defined in s. 6, Art. VII of the State Constitution.

§ 196.031(l)(a), Fla. Stat. (2006) (emphasis added). A review of the history of the emphasized phrase reveals that it is a vestige of the past, probably inadvertently carried forward into the modern statutory scheme relating to section 196.031, and thus, legally ineffective.

Article VII, section 6 [then article X, section 7] of the Florida Constitution was initially added to the Florida Constitution by the people in a General Election held on November 6, 1934. As then adopted, the provision initially did not contain a requirement that the exemption claimant “reside upon” the homestead property:

Section 7. There shall be exempted from all taxation, other than special assessments for benefits, to every head of a family who is a citizen of and resides in the State of Florida, the homestead as defined in Article X of the Constitution of the State of Florida up to the valuation of $5,000.00; provided, however, that the title to said homestead may be vested in such head of a family or in his lawful wife residing upon such homestead or in both.

Art. X, § 7, Fla. Const. (1885) (amended 1934).

Two years later, the Florida Legislature passed Chapter 17060 Acts of the 1935 Session of the Legislature, now section 196.031 of the Florida Statutes, which included the language “who resides thereon” in the proviso. Because there was some doubt at the time concerning whether the 1935 statutory exemptions were covered by the 1934 amendment to article X, see Op. Att’y Gen. Fla. 0-10 (1939) at 441, the constitutional provision was amended by the people at the General Election of November 8,1938, to read as follows:

Section 7. Every person who has legal title or beneficial title in equity to real property in this State and who resides thereon and in good faith makes the same his or her permanent home, or the permanent home of another or others legally or naturally dependent upon said person, shall be entitled to an exemption from all taxation, except for assessments for special benefits, up to the assessed value of Five Thousand Dollars on the said home and contiguous real property for the year 1938 and thereafter.

Art. X, § 7, Fla. Const. (1885) (amended 1938) (emphasis added).

In the revisions made to the Florida Constitution in 1968, article X, section 7, was amended and renumbered to article VII, section 6. The amendment also eliminated the language “who resides thereon” and added condominiums and cooperatives to the list of qualifying homestead property. The 1968 provision read in pertinent part:

SECTION 6. Homestead exemptions—
(a) Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner, shall be exempt from taxation thereon except assessments for special benefits, up to the assessed valuation of five thousand dollars, upon establishment of right thereto in the manner prescribed by law. The real estate may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by stock ownership or membership representing the owner’s or member’s proprietary interest in a corporation owning a fee or leasehold initially in excess of ninety-eight years.

Art. VII, § 6(a), Fla. Const. (1968). Thereafter, the correlative statute, section 196.031, was updated to incorporate the 1968 additions to article VII, section 6— i.e., the addition of condominiums and cooperatives. However, the statutory draftsmen did not remove the phrase “who resides thereon,” as clearly should have occurred. See supra at n. 4. Despite having been removed from the constitutional provision in 1968, the phrase remains in the statutory provision today. See Ch. 67-339, at 1079, Laws of Fla. For many of the same reasons previously discussed, we find this appendage to section 196.031 to be unenforceable and thus, we decline to be guided by the statute.

Finally, we note that both during and after the appearance of this phrase in article X, section 7 [now article VII, section 6] of the Florida Constitution, it was not interpreted by the enforcing authorities as literally as one might think should have been. Compare Op. Att’y Gen. Fla. 0-10 (1939) at 443 (defining “resides thereon” as a requirement that there be a dwelling house upon the land in question) with Op. Att’y Gen. Fla. 82-27 (1982) (opining that interpretation of “resides thereon” as a separate residence requirement would be contrary to the constitutional provision) and Fla. Admin. Code R. 12D-7.07 (4) (2006) (stating that a person not residing in a taxing unit but owning property therein may claim such property as tax exempt by reason of residence on the property of natural or legal dependents).

CONCLUSION

For all of the foregoing reasons, we find that David and Ana Andonie are entitled to the benefit of the homestead ad valorem tax exemption appearing in article VII, section 6(a) of the Florida Constitution.

Affirmed.

      . This type of homestead is sometimes called "common homestead" to distinguish it from the less well-known, but important benefits found in article X, section 4 of the Florida Constitution.

      . This proceeding was a de novo proceeding. See § 194.036(3), Fla. Stat. (2006). The proceeding here is therefore by appeal. See Art. V, § 4(b)(1), Fla. Const.

      . Chapter 196 of the Florida Statutes exists for the purpose of enabling those exemptions authorized by the Florida Constitution to be implemented by general law and providing guidance for the administration of exemptions from taxation. See, e.g., Art. VII, § 3(a), Fla. Const.

      . Although the concepts of "residence” and "domicile” are not interchangeable, they do overlap in some cases. That is so in this case. See, e.g., 77 Am.Jur.2d Venue § 29 "Relationships between ‘Residence and Domicil’ " [sic]; State v. Mills, 627 N.W.2d 790 (S.D.2001).

      . The provision is indubitably a self-executing provision of the Florida Constitution. See Gray v. Bryant, 125 So.2d 846, 851 (Fla.1960) (defining a self-executing provision of the Florida Constitution as one which “lays down a sufficient rule by means of which the right ... may be determined, enjoyed or protected without the aid of legislative enactment”); Op. Att’y Gen. Fla. 0-10 (1939) at 441 (opining that the provision as originally adopted by the people in 1938 to be self-executing); but see Haddock v. Carmody, 1 So.3d 1133, 1135—36 (Fla. 1st DCA 2009). As such, it vests only the concomitant limited authority in the legislature and rule-making bodies to adopt laws and regulations affecting it. See Smith v. Coal. to Reduce Class Size, 827 So.2d 959, 962 (Fla.2002) (overruled on other grounds); see also Browning v. Fla. Hometown Democracy, Inc., PAC, 29 So.3d 1053 (Fla.2010). As a matter of principle, the same limitations on legislative authority should inform the judicial branch in its approach to interpreting statutes regulating article VII, section 6 of the Florida Constitution. Cf. Op. Att’y Gen. Fla. 0-10 (1939) at 442 (”[L]egislation may be desirable by way of providing convenient remedies for the protection of the right secured, or of regulating the claim of the right so that its exact limits may be known and understood; but all such legislation must be subordinate to the constitutional provision, and in furtherance of its purpose, and not in any particular attempt to narrow or embarrass it.”).

      . The Property Appraiser also cites Florida Department of Education v. Harris, 338 So.2d 215 (Fla. 1st DCA 1976), to bolster the ger-maneness of these older cases. Hants cannot be read to assist the Property Appraiser. In Harris, the parties stipulated, probably without a basis in the evidence, that tire plaintiff, nineteen year-old Florida State University student John Harris, qualified as an emancipated minor for tuition-paying classification in the state university system under Beekman and Chisholm. Id. at 216. However, the ratio decidendi of the District Court, which ultimately found Harris ineligible for a reduced in-state tuition classification, was based upon a plain reading of the Board of Regents’ rules. Id. at 219.

      . Having neither joined in the arguments made by the Property Appraiser in this case, nor appeared for oral argument, we conclude the Department finds these arguments to be unmeritorious. See § 213.05, Fla. Stat. (2006) (charging the Florida Department of Revenue with statewide control over the administration of ad valorem taxation in the state).

      . The statute read as follows:
      Section 2. Every person who is a citizen and resident of the State of Florida and who has legal or beneficial title in equity to real property in the State of Florida, including vendees in possession under bona fide contracts to purchase and such instruments by and under which such title is claimed are recorded with the Clerk of the Circuit Court of the County in which said homestead property lies and who resides thereon and in good faith makes the same his or her permanent home shall be deemed to the head of a family and entitled to an exemption from all taxation except for special assessments for benefits, up to the assessed valuation of Five Thousand Dollars on said homestead.
      Ch. 17060, Laws of Fla. (1935) (emphasis added).


source: Caselaw Access Project

author: SUAREZ, J. SALTER, J.

license: Public Domain

text:
    Andrew J. ANTHONY, Appellant, v. PEREZ-ABREU & MARTIN-LAVIELLE, P.A., etc., Appellees.
    No. 3D09-2637.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2010.
    Andrew J. Anthony and Bradley A. Sil-verman, Coral Gables, for appellant.
    Cole Scott & Kissane and Scott A. Cole, Miami, and Kristen A. Tajak, for appellees.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   SUAREZ, J.

Andrew J. Anthony appeals from a final order dismissing his complaint with prejudice. The only issue raised on appeal was whether the trial court correctly found that the complaint was not filed within the requisite four-year statute of limitations. We find that the complaint was timely filed and therefore reverse.

In 2004, Raquel Anthony, the appellant’s now former wife, worked in his law office, The Law Offices of Anthony and Associates, P.A. That year, she sought divorce advice from Javier Perez-Abreu and his law firm, Perez-Abreu & Martin Lavielle, P.A. [“PAML”]. According to Anthony’s Complaint, Javier Perez-Abreu and Andy Acosta, both attorneys in PAML, and Raquel Anthony allegedly conspired to wrongfully obtain the business and financial records from Anthony’s firm for use during the divorce proceeding. The parties agree that sometime in March, 2004, Ms. Anthony allegedly wrongfully took records from Anthony’s law firm. Early in the dissolution proceedings, Anthony became aware that the documents had been taken. He raised the issue of Ms. Anthony’s wrongful taking of his business records throughout that litigation.

The dissolution litigation settled during mediation. PAML claimed that as a condition to any settlement agreement, PAML insisted upon Anthony signing a release of attorney Perez-Abreu and PAML, relating to any and all claims that he may have against them. Anthony denied he agreed to release PAML. The issue was brought before the trial court which, on January 30, 2006, ordered Anthony to sign the settlement agreement which included his release of PAML. Anthony signed the release as ordered, but timely appealed from that order and on January 3, 2007, this Court reversed, holding, as a matter of law that no lawyer, other than Perez-Abreu in his individual capacity, was to be released, and on remand that the parties were to execute Anthony’s proposed settlement agreement that did not include a release of PAML. Anthony v. Anthony, 949 So.2d 226 (Fla. 3d DCA 2007).

In December 2008, Anthony filed the present complaint for civil conspiracy against PAML and its attorney Andy Acosta, alleging that PAML, along with Acosta, concocted a plan to “wrongfully” obtain Anthony’s business records. PAML moved to dismiss, arguing that the four-year statute of limitation for civil conspiracy had run. The trial court heard argument and granted the motion without prejudice, giving Anthony fifteen days to amend his Complaint to address the statute of limitations issue. The order stated that if Anthony declined to amend, the court would dismiss the cause with prejudice. Anthony did not amend, and the trial court issued a final order dismissing the cause with prejudice. This appeal followed.

The appellees incorrectly argued to the trial court and on appeal that a cause of action for civil conspiracy accrues with the first known overt act in furtherance of the conspiracy. They argue that this occurred when the ex-wife wrongfully took the business records in March 2004, or, in the alternative, when Anthony discovered the theft in September 2004, and thus the four-year statute of limitation had expired by the time the Complaint was filed in December 2008. The trial court followed this reasoning and erroneously focused on the date Anthony discovered that his ex-wife took the documents as the date that the statute of limitation began to run. But the wrongful taking of the business records is but one element of the cause of action. The cause of action does not accrue and become actionable until the final element is satisfied which, in this case, is damages. § 95.031(1), Fla. Stat. (2008) (“A cause of action accrues when the last element constituting the cause of action occurs.”); see Olson v. Johnson, 961 So.2d 356, 360 (Fla. 2d DCA 2007); Young v. Ball, 835 So.2d 385 (Fla. 2d DCA 2003); Park v. City of W. Melbourne, 999 So.2d 673 (Fla. 5th DCA 2008). The final element of damages did not occur until 2005 when Anthony acceded to the divorce settlement and its financial consequences. Therefore, until that time, the statute of limitations had not begun to run.

The broad liability releases on behalf of PAML Anthony was ordered by the trial court to sign as part of the divorce settlement on January 30, 2006, legally prevented him from filing suit against PAML. In order to proceed against PAML, Anthony timely challenged the liability release on appeal. In January of 2007, this Court reversed as to the release of PAML. Anthony, 949 So.2d at 227. At that point, Anthony was free to go against PAML and Acosta for civil conspiracy because his cause of action was not complete until he could legally file suit and obtain relief, and was not final until the appeal was concluded in 2007 and the issue decided in his favor. See Park, 999 So.2d at 677.

We conclude that Anthony’s 2008 complaint is within the four-year statute of limitations for an action for civil conspiracy. We thus reverse the order dismissing the complaint with prejudice and remand with instructions to reinstate Anthony’s complaint.

Reversed and remanded.

SALTER, J.

(concurring).

I concur with the conclusion that the appellant’s complaint in this case was timely filed and that the order of dismissal must therefore be reversed. I write only to note several indicia of a terminally ill lawsuit that, while it may have survived a first and second brush with death, has no apparent cure in sight.

Those indicia are:

1. The appellant is an attorney who signed his own complaint and amended complaint (though later memoranda and the briefs here were signed by a junior lawyer in the small firm wholly owned by the appellant). “The old adage that ‘a lawyer who represents himself has a fool for a client’ is the product of years of experience by seasoned litigators.” Kay v. Ehrler, 499 U.S. 432, 438, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991).

2. The cases arose out of (a) a dissolution of marriage proceeding brought by the former wife in 2004 and (b) the appellant’s subsequent claims against the former wife’s attorneys for allegedly counseling her to copy records from the appellant’s law office before the dissolution petition was filed. The emotional aspect of dissolution cases (particularly, as here, involving minor children) amplifies the possibility of professional misjudgment by an attorney/party. To compound the emotional aspect of the dissolution of marriage proceeding, the former wife had exploited her position as an employee in the small law office to clandestinely copy the otherwise confidential documents. She thus simultaneously sundered not only a longstanding marriage, but also a successful business relationship.

3. On the face of the amended complaint, however, there is no discernible claim of actual harm to a client of the law office or to the ongoing business activities of the law office. The alleged damages principally consist of increased legal expenses alleged to have been incurred by the appellant because of his need to litigate these matters against the former wife and her attorneys. Any such damages were under the appellant’s control — no litigation, no expenses. Many of the allegedly-photocopied records — appellant’s law office tax returns, for example — would have been subject to production as part of the parties’ financial disclosure to one another in any event. The trial judge in the dissolution case expressly excluded from the legal fees and costs awarded to the former wife “fees and costs generated with respect to litigating over the confidentiality of the obviously confidential records taken by the Wife from the Husband’s law practice.” The true gravamen of the amended complaint is a grievance best analyzed by The Florida Bar.

My colleagues show admirable restraint in declining to address these issues at this stage. However, for the sake of the trial court’s docket, the ability of the appellant to devote his considerable experience to more productive endeavors, and “closure” for the parties and the two minor children, I will simply recommend that the appellant share the facts and his amended complaint with a detached, experienced trial lawyer before deciding whether to resume hostilities in the trial court after remand.

      . A civil conspiracy requires: "(a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy." Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997).

      . We note that the sole issue on appeal is whether the statute of limitations had run on the underlying cause of action. We do not address any of the other issues raised regarding whether the cause of action was properly pled, etc.

      . Anthony v. Anthony, 949 So.2d 226 (Fla. 3d DCA 2007). The dissent in that related matter observed that the prior reversal only encouraged the appellant to pursue litigation for its own sake "and to harass the former spouse.” Id. at 228.

      . Other damages claimed in the amended complaint, such as the reduced value of a retirement account and home, do not have any apparent connection to the alleged "conspiracy.”


author: MORRIS, Judge.

text:
    Samuel W. BALLINGER, Appellant, v. BAY GULF CREDIT UNION, Appellee.
    No. 2D09-4561.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2010.

      Robert A. Carr of Resolute Law Group, LLC, Tampa (withdrew after briefing); Leon A. Williamson, Jr., of Leon A. Williamson, Jr., P.A., Tampa, (substituted as counsel of record), for Appellant.
    Keith D. Skorewicz and Jamie L. Weatherholt of Bush Ross, P.A., Tampa, for Appellee.
   MORRIS, Judge.

Samuel W. Ballinger appeals a final summary judgment entered in favor of Bay Gulf Credit Union. While we find no error in two of the issues raised by Bal-linger, we must reverse because the verified complaint was insufficiently pleaded and, therefore, final summary judgment was improvidently entered.

This case involves Bay Gulfs actions in seeking to repossess three luxury vehicles which Ballinger financed through Bay Gulf. In Bay Gulfs verified complaint, a Bay Gulf employee, Shannon Lenth, stated that Lenth read everything and that the facts stated were “true to the best of my knowledge and belief.” During the course of the proceedings, Bay Gulf sought summary judgment, and although Balling-er attempted to file an affidavit in opposition to Bay Gulfs motion for summary judgment, the trial court refused to accept the affidavit because it had not yet been filed with the trial court at the time of the summary judgment hearing. The court then rejected Ballinger’s argument that the verified complaint — standing alone— was insufficient as a matter of law to support a final summary judgment. In doing so, the court noted that the complaint “says it is verified.”

We acknowledge that “[a] verified complaint may serve the same purpose as an affidavit supporting or opposing a motion for summary judgment.” Boettcher v. IMC Mortg. Co., 871 So.2d 1047, 1049 n. 2 (Fla. 2d DCA 2004). “However, in order to be so considered, the allegations of the verified complaint must meet the requirements of the rule governing supporting and opposing affidavits.” Id. (citing Fla. R. Civ. P. 1.510(e)). Rule 1.510(e), in turn, provides that affidavits must be based on personal knowledge and shall “show affirmatively that the affi-ant is competent to testify to the matters stated therein.” A verification which is improperly based on information and belief is insufficient to entitle the verifying party to relief because the verification is qualified in nature. See Muss v. Lennar Fla. Partners I, L.P., 673 So.2d 84, 85 (Fla. 4th DCA 1996); Barton v. Circuit Court of the Nineteenth Judicial Circuit, 659 So.2d 1262, 1263 (Fla. 4th DCA 1995); Thompson v. Citizens Nat’l Bank of Leesburg, Fla., 433 So.2d 32, 33 (Fla. 5th DCA 1983).

In this case, the verification reflects it was not based on Lenth’s personal knowledge. Bay Gulf asks this court to construe the verification as if it were based on Lenth’s personal knowledge because the verification does not say it was based on Lenth’s “information and belief’ but, rather, states it was based on Lenth’s “knowledge and belief.” However, we decline to impose such a construction because the fact that the verification included the word “belief’ indicates it was not based on Lenth’s personal knowledge. And, in fact, it is apparent from the record that Lenth could not state she had personal knowledge of the loan documents in question. The qualified verification here fails to meet the requirements of rule 1.510(e) and, therefore, should not have been considered by the trial court on a motion for summary judgment. See Thompson, 433 So.2d at 33.

Reversed and remanded.

WALLACE and KHOUZAM, JJ., Concur.


author: VILLANTI, Judge.

text:
    Alicia ARCE, Appellant, v. Raymond A. HAAS, Individually; Raymond A. Haas, P.A.; Haas, Dutton, Blackburn, Lewis & Longley, P.A.; George A. Yaka, Individually; and Vaka, Larson & Johnson, P.L., Appellees.
    No. 2D09-5801.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2010.

      Robert C. Widman of Morris & Widman, P.A., Venice, for Appellant.
    James H. Wyman of Hinshaw & Culbertson, LLP, Fort Lauderdale; and Philip Crowley of Hinshaw & Culbertson, Tampa, for Appellees Raymond A. Haas; Raymond A. Haas, P.A.; and Haas, Dut-ton, Blackburn, Lewis & Longley, P.L.
    No appearance for Appellees George A. Vaka and Vaka, Larson & Johnson, P.L.
   VILLANTI, Judge.

Alicia Arce appeals the final summary judgment entered in favor of Raymond A. Haas; Raymond A. Haas, P.A.; and Haas, Dutton, Blackburn, Lewis & Long-ley, P.A. (collectively “Haas”), in Arce’s action against them for legal malpractice. The alleged malpractice arose in the context of an action for personal injuries brought against Arce by one Joy Beaufort following an automobile accident. Haas was retained by Arce’s automobile insurance carrier, GEICO, to defend Arce in the personal injury action.

After a stipulated judgment was entered in favor of Beaufort and against Arce for $450,000, Arce brought this legal malpractice action against Haas based on events surrounding the negotiation and implementation of an alleged settlement agreement between Beaufort and Arce. After minimal discovery, the trial court entered final summary judgment in favor of Haas, finding that “the facts clearly and unequivocally convince this Court that legal malpractice was not committed.” Arce then brought this appeal from the final summary judgment.

“A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)); see also Bermont Lakes, LLC v. Rooney, 980 So.2d 580, 586 (Fla. 2d DCA 2008). When considering a motion for summary judgment, the trial court may not weigh the credibility of witnesses or resolve disputed issues of fact. See Jones v. Stoutenburgh, 91 So.2d 299, 302 (Fla.1957); Williams v. Bd. of Pub. Instruction of Flagler Cnty., 61 So.2d 493, 493 (Fla.1952); Strickland v. Strickland, 456 So.2d 583, 584 (Fla. 2d DCA 1984). Instead, if the record reflects any disputed issue of material fact, a motion for summary judgment must be denied.

Having carefully reviewed the record on appeal in this case and having considered the well-presented arguments made at oral argument, we agree with Arce that there are disputed issues of material fact concerning the scope of the alleged settlement agreement between Arce and Beaufort and the timing of certain events leading up to the entry of the judgment against Arce. The trial court was not permitted to resolve these disputed issues or weigh the evidence to determine whether legal malpractice was committed. And these disputed issues of material fact precluded entry of final summary judgment in favor of Haas.

We also note that it appears that the trial court applied the incorrect legal standard when considering Haas’s motion. In its order granting summary judgment, the court stated that the facts “clearly and unequivocally convince this Court” that legal malpractice had not occurred. However, the trial court’s opinion of the weight of the evidence and its speculation as to the case’s ultimate outcome are immaterial at the summary judgment stage. See Bishop v. City of Clearwater, 258 So.2d 337, 339 (Fla. 2d DCA 1972) (noting that the trial court’s consideration of a motion for summary judgment “ ‘may not be influenced by the chances of success which [the court] considers either party may have on the trial’ ” (quoting Benson v. Atwood, 177 So.2d 380, 383 (Fla. 1st DCA 1965))). Instead, the court’s focus must be limited to whether disputed issues of material fact exist and, if not, whether the moving party is entitled to judgment in their favor as a matter of law, not as a matter of fact. Thus, even if the record had not reflected disputed issues of material fact, we would have been compelled to reverse the final summary judgment and remand for the trial court to reconsider Haas’s motion in light of the proper legal standard.

Reversed and remanded for further proceedings.

ALTENBERND and DAVIS, JJ„ Concur.


author: SALTER, J.

text:
    BRIARWINDS CONDOMINIUM ASSOCIATION, INC., Appellant, v. Marcene RIGSBY and Denny Wood, Appellees.
    No. 3D10-329.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2010.
    Siegfried, Rivera, Lerner, De La Torre & Sobel, and Helio De La Torre, Coral Gables, and Howard J. Perl, for appellant.
    R. Maxwell Heethuis, for appellees.

      Before WELLS, ROTHENBERG and SALTER, JJ.
   SALTER, J.

The Briarwinds Condominium Association, Inc., appeals an order granting the defendants’ motion for a judgment on the pleadings on count two of its complaint, seeking an injunction to evict a condominium unit tenant. Finding that the complaint was sufficient to withstand the motion for judgment on the pleadings, we reverse.

Marcene Rigsby owns a unit at Briar-winds Condominium. She rents the unit to Denny Wood. After numerous complaints by residents and to the police, culminating with a petition signed by 88 persons seeking Wood’s eviction, the Association filed an action against Rigsby and Wood. Count one sought cancellation of a quit claim deed transferring ownership of Rigsby’s unit to Rigsby and Wood because the transfer was not approved by the Association. Count two sought injunctive relief asking for Wood’s eviction. The complaint alleged a long list of condominium rule violations by Wood. This included harassing women and children in the complex, disruptive conduct, threats to neighbors and guests, and use of vulgar language.

Several years after the lawsuit was filed, Rigsby and Wood filed motions for a judgment on the pleadings as to count two. The trial court granted the motion, dismissing the injunctive relief claim, and denied the Association’s motion for rehearing. The court found that a cause of action for injunctive relief had not been pled.

A review of the complaint and its attachments demonstrates that the count for injunctive relief was sufficiently pled. In deciding a motion for judgment on the pleadings, “all well-pleaded material allegations of the opposing party are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” Venditti-Siravo v. City of Hollywood, 418 So.2d 1251, 1253 (Fla. 4th DCA 1982); Wilcox v. Lang Equities, Inc., 588 So.2d 318 (Fla. 3d DCA 1991). A motion for a judgment on the pleadings should only be granted if the moving party is entitled to a judgment as a matter of law. Boatwright Const., LLC v. Tarr, 958 So.2d 1071 (Fla. 5th DCA 2007); Shay v. First Fed. Of Miami, 429 So.2d 64 (Fla. 3d DCA 1983). Here, a review of the complaint does not convince us that the defendants were entitled to a judgment as a matter of law. Additionally, there are still unresolved factual questions. Hart v. Hart, 629 So.2d 1073 (Fla. 2d DCA 1994).

The defendants’ main argument on appeal, as below, assailed count two of the complaint for failure to allege irreparable injury. However, count two sought an injunction based on the defendants’ violation of section 718.303, Florida Statutes (2009). In an action asserting a violation of the statute “an alleged violation of chapter 718 is itself a harm for which section 718.303 authorizes injunctive relief.” Hollywood Towers Condo. Ass’n, Inc. v. Hampton, 40 So.3d 784, 788 (Fla. 4th DCA 2010) (citing Mitchell v. Beach Club of Hallandale Condo. Ass’n, 17 So.3d 1265, 1267 (Fla. 4th DCA 2009)); Hobbs v. Weinkauf 940 So.2d 1151, 1153 (Fla. 2d DCA 2006). By alleging that the unit owner and tenant violated the condominium documents, which is prohibited by the statute, the association adequately pled irreparable harm.

In view of the adequate allegations in the complaint, it was error to grant the defendants a judgment on the pleadings.

Reversed and remanded.


author: SUAREZ, J.

text:
    Francisco GONZALEZ, Appellant, v. Ana I. RIVERO, Catherine Marzo-Melero, Freddy Melero, and Option One Mortgage Corporation, a Florida corporation, Appellees.
    No. 3D09-2585.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2010.
    Rehearing and Rehearing En Banc Denied Feb. 4, 2011.
    Diaz Reus & Targ and Carlos F. Gonzalez, Brant C. Hadaway and Marta Colo-mar, Miami, for appellant.
    Cohen/Fox and Mario M. Ruiz, Miami, for appellees.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

Franciso Gonzalez appeals from an adverse final summary judgment finding that the Meleros obtained good and marketable title to the property in question and that Option One has a valid mortgage against the property. We affirm.

Gonzalez and his ex-wife, Ana Rivero, are Spanish nationals, now essentially divorced under Spanish law. While married, they owned the Miami house in question. When the marriage fell apart, the couple returned to Spain and separated. In 2002, the Spanish court, after a full hearing where both parties were represented by counsel, ratified the separation and entered a judgment appointing Rivero as the sole administrator of the marital estate, and authorized her to dispose of the Miami house in order to satisfy marital debts that Gonzalez refused to pay. In 2003, relying on that authority, Rivero sold the Miami property to the Meleros, who obtained their mortgage loans from Option One. The Meleros moved in, declared homestead, and paid their taxes. Rivero submitted a detailed accounting to the Spanish court, which issued an order fully approving of her actions. Two years later, Gonzalez filed this complaint in Miami-Dade County to quiet title, and for fraud and damages, alleging that Rivero had sold their jointly-owned Miami house without his authority, forged a quitclaim deed, and deprived him of the proceeds of the sale. In 2009, the Spanish high court issued its appellate ruling of Rivero’s appeal in that court, of the Spanish lower court’s prior rulings, affirming that Rivero had the sole authority to sell the Miami house and that her accounting of the proceeds was proper. Once again the parties had notice and were represented by counsel before the Spanish high court. In the Miami-Dade County ease, the Meleros and Option One then moved for summary judgment. The trial court heard argument of counsel and granted summary judgment in the movants’ favor, finding that the Meleros had good and marketable title and that Option One has valid mortgages against the property.

Gonzalez here seeks to rescind the sale of the property and invalidate the mortgages, and asserts that the already-distributed proceeds can be sorted out later, presumably through further litigation. For this Court to so hold would be to ignore the principles of comity, and to reopen issues that have been fully litigated between the parties with counsel representing both parties and with full notice and opportunity to be heard in the Spanish court, a court of competent jurisdiction. The Spanish court properly determined the matter, Gonzalez reaped the benefit of that litigation and the subsequent sale of the property, and is now collaterally es-topped from pursuing this further.

Affirmed.

      . See, e.g., Lopes v. Lopes, 852 So.2d 402 (Fla. 5th DCA 2003) (holding that recognition of divorce decrees rendered in foreign courts is a matter of comity involving an exercise of discretion); Popper v. Popper, 595 So.2d 100, 103 (Fla. 5th DCA 1992) (holding that in order to be entitled to comity, the record must show that the foreign judgment partook of the elements that would support it if it had been obtained in this state, i.e., that the grounds relied upon for divorce must be sufficient under Florida law, the petitioning party must satisfy the jurisdictional requirements relating to residency or domicile, and basic due process and notice requirements must be met), review denied, 602 So.2d 942 (Fla.1992).


author: SCHWARTZ, A., Senior Judge.

text:
    1700 RINEHART, LLC, Appellant, v. ADVANCE AMERICA, Cash Advance Centers, etc., Appellee.
    No. 5D09-3759.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.

      Matthew G. Brenner and Ronald D. Edwards, Jr., of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellant.
    Carrie Ann Wozniak, of Akerman Sen-terfitt, Orlando, for Appellee.
   SCHWARTZ, A., Senior Judge.

The lessor of commercial space in the City of Sanford appeals from an adverse summary judgment in an action for unpaid rent against the guarantor of the tenant’s obligations under the lease. The trial court based its decision on the conclusion that the lease was invalid for lack of consideration because, under the city’s zoning and use regulations, the premises could not be legally employed for a check cashing facility, the only purpose both sides knew it was intended. We affirm but for the very different (and very inconsistent) reason that the lessee properly invoked a cancellation clause in the lease which applied when and if the zoning proved unavailable.

I

The facts are essentially undisputed. On May 16, 2007 the parties entered into the agreement in question for the sole use, as specifically provided, for the tenant’s operation as a “cash advance” store. Because both parties were also aware at least of the real possibility that the city would not allow that use, on August 13, 2007, they entered into a lease amendment which made the tenant “solely responsible for confirming the zoning ... is compatible with the [the tenant’s] use” and which contained, among others, the following termination provision:

1. Right to Terminate Lease.
In the event Tenant, after using best efforts, is unable to obtain all permits and approvals necessary for Tenant to open and operate its business in the Premises within ninety (90) days from the mutual execution of this Lease, Tenant shall have the right, upon written notice to Landlord, to terminate the Lease, in which event all rents and deposits paid to Landlord shall be refunded to Tenant provided, however, that Landlord shall have the right on behalf of Tenant to attempt to obtain all permits and approvals for Tenant and if Landlord is unsuccessful, then Tenant shall have the right to terminate the Lease.

Sure enough, the tenant soon learned that it could not operate the business unless the city granted both a conditional use permit (CUP) and a “distance waiver” concerning a nearby potential competitor. On November 7 (86 days after the lease amendment was executed), the city informed it that after receiving the respective applications, “[t]he distance waiver takes about 30-60 days and the Conditional Use takes about 60 to 90 days.” The lessee duly submitted a CUP application two days later, on November 9. On January 14, 2008, however, Sanford denied the lessee’s CUP application, thus finally preventing it from operating the business on the premises. The following day, January 15, 2008, the tenant notified the lessor that, pursuant to the “90 day” clause, it was terminating the lease, which would have otherwise commenced on January 20, and requested a refund of its security deposit. The appellant responded that the lessee had failed to terminate within ninety days of executing the lease, as it said was required, and denied the claim on that ground. In accordance with these respective positions, the tenant did not enter into possession of the space and paid no rent, which the landlord then brought this suit to recover.

II

As we have indicated, this case arises from the trial court’s ruling, on cross motions for summary judgment, that the lease was void for “want of consideration” or, to use the legally equivalent term, “frustration of purpose,” because, as all agree, the space could not be used for its only intended purpose. We conclude that this ruling was legally incorrect but, relying on the tipsy coachman rule, see Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002), and because the trial court was also wrong in rejecting, as it did, the tenant’s alternative argument that it had timely invoked the ninety day termination provision, the judgment will be affirmed.

The “lack of consideration” doctrine, which arises when the very purpose of an agreement has been totally frustrated by some outside force or circumstance is a familiar one indeed. See e.g. Marks v. Fields, 160 Fla. 789, 36 So.2d 612 (1948); La Rosa Del Monte Express, Inc. v. G.S.W. Enterprises Corp., 483 So.2d 472 (Fla. 3d DCA 1986). But it has no proper application in a case such as this one, in which the particular potential obstacle was not only foreseen by the parties, but as to which they specifically bargained, with the risks of its occurrence divided by and between the parties in the agreement itself. See, e.g., Shore Inv. Co. v. Hotel Trinidad, Inc., 158 Fla. 682, 29 So.2d 696, 697 (1947) (finding frustration of purpose doctrine inapplicable where knowledge of pertinent facts was available to promisor and promi-sor was responsible for the predicament); Home Design Center—Joint Venture v. County Appliances of Naples, Inc., 563 So.2d 767, 769-70 (Fla. 2d DCA 1990) (noting that even under increasingly broad interpretations of frustration doctrine, “the defense is not available concerning difficulties which could reasonably have been foreseen by the promisor at the creation of the contract.”); Equitrac Corp. v. Kenny, Nachwalter & Seymour, P.A., 493 So.2d 548 (Fla. 3d DCA 1986) (“It appears without material dispute that the purpose for which the subject contract was formed became entirely frustrated under the circumstances of this case due to no fault of either party.”); Valencia Ctr., Inc. v. Publix Super Markets, Inc., 464 So.2d 1267, 1269 (Fla. 3d DCA 1985) (“The doctrine of commercial frustration is limited to cases where performance is possible but an alleged frustration, which was not foreseeable, totally or nearly totally destroyed the purpose of the agreement.”); see generally Restatement (Second) of Contracts § 266 (1981).

In the particular situation presented by this case, the provision of the lease which required the tenant to attempt to obviate any zoning difficulties and provided specific remedies when they could not, requires an application of the exception to rather than the general rule of frustration of purpose. As is said in Erwin S. Barbre, Annotation, Rights Between Landlord and Tenant as Affected by Zoning Regulations Restricting Contemplated Use of Premises, 37 A.L.R.3d 1018 (1971) (cases collected):

many courts have held or recognized that the parties themselves may provide in the lease for the determination of their rights in the event that the contemplated use of the premises is prohibited by a zoning regulation, as long as the lease provision does not violate public policy. The courts are apparently willing to give the parties a wide degree of latitude regarding a contractual determination of their rights.... A provision in the lease regarding the rights of the parties in the event that the use is found to violate the zoning regulations may also be important where the court is faced with the question of whether there has been a failure of consideration, since such a question is said to depend upon the intent of the parties at the time of the execution of the lease. (e.s.)

(Footnotes omitted); see, e.g., Margolis v. Malesky, 515 So.2d 425 (Fla. 4th DCA 1987) (landlord entitled to judgment where lease required tenants to obtain zoning approval for proposed use and tenants contemplated alternate use if zoning denied).

Closely on point is East Coast Advertising, Inc. v. Wiseheart, 862 So.2d 734 (Fla. 3d DCA 2003), which affirmed a summary judgment for a landlord in an action for rent under a lease for use as a billboard. The lessee defended on the ground of failure of consideration because existing zoning regulations prevented that use. The trial court concluded that the defense was unavailable because:

the parties — most importantly the lessees, which were in the billboard business — (a) knew of the existing zoning deficiencies; (b) specifically bargained on that basis with the expectation that the lessees would see that the restrictions were removed; and (c) specifically eliminated a clause in the proposed lease which would have permitted the lessees to escape from its provisions if they were unable to use the property as contemplated.

Id. (footnote inserted). The Third District wisely agreed and affirmed the summary judgment for the full amount of unpaid rent. We follow that decision here.

Ill

Ironically enough, however Wiseheart shows both the reasons why the trial court’s legal determination was not correct and why its ultimate conclusion was. This is because the parties did not, as in Wiseh-eart, “specifically eliminate! ],” but instead specifically inserted “a clause in the ... lease ... permitting] the lessees to escape from its provisions if they were unable to use the property as contemplated.” Id. at 735. To reiterate, that clause provided:

In the event Tenant, after using best efforts, is unable to obtain all permits and approvals necessary for Tenant to open and operate its business in the Premises within ninety (90) days from the mutual execution of this Lease, Tenant shall have the right, upon written notice to Landlord, to terminate the Lease....

We find that the tenant properly and timely invoked this provision, when a day after it found that its attempts to secure appropriate zoning had failed, and before the term of the lease even commenced, it gave notice of the contemplated termination. In the language of this provision, it is clear that having used its “best efforts” the tenant was unable to open and operate its business on November 11, 2007, ninety days from the execution of the amendment on August 13, 2007. The landlord argued and the trial court agreed, however, that the notice was fatally tardy because the cancellation did not occur within the ninety day period. For several reasons this conclusion is incorrect:

1. Foremost, that is not what the lease says. Its clear language, reinforced by the comma inserted after the word “lease,” shows that the ninety day post-lease period refers to the lessee’s ability to lawfully conduct its business on the premises — and not as, the appellant says, to its ability to terminate the lease. While the parties could have provided that if they wished, they did not do. See, e.g., United Artists Theatre Circuit, Inc. v. Sun Plaza Enterprise Corp., 1998 WL 938732 (E.D.N.Y.1998) (“If the Tenant will not be considered as a bankable Tenant by any lending institution and/or the Landlord will not be able to secure a construction loan based on this Lease, and, in that event, the Landlord shall have the right, only within the period of 90 days after the execution of this Lease, to cancel this Lease, provided the Landlord used his best efforts to secure financing.”) [e.s.]; Commonwealth v. Vartan, 557 Pa. 390, 733 A.2d 1258, 1260 (1999) (“If within 60 days from the execution of this Lease Tenant has not received such resolutions, enactments or other approvals as Tenant, in its sole opinion, deems appropriate, Tenant shall have the right, exercised n[sic] writing not later than five business days after the end of such 60 day period, to terminate this Lease by written notice to Landlord ... ”) [e.s.]; Grossman v. Sharp Air Freight Servs., Inc., 1994 WL 902889 (Mass.Sup.1994) (“If, notwithstanding such diligent efforts, [Sharp] is unable to obtain such approval on or before sixty (60) days following the execution of this lease, [Sharp] shall have the option to terminate this lease; provided, however, that such option shall be exercised (if at all) by notice to [the Grossmans] not later than seventy (70) days following the date of execution of this lease.”) [e.s.]. The contrast between the contract terms in these cases and this one is decisive.

2. Displaying a horrible, the landlord contends that our interpretation would set no time limits to cancellation, and thus give the tenant eternity to do so. This claim is also inaccurate. The law is clear in Florida and elsewhere, that when a contract fails to specify a particular period, the law implies a reasonable time under the circumstances. See A.I.C. Trading Corp. v. Susman, 40 So.3d 769 (Fla. 3d DCA 2010) (and cited cases); Four Asteria Realty, LLC v. BCP Bank of North America, 880 N.Y.S.2d 872, 872 (N.Y.Sup.2009) (finding that termination provision, which stated if “Tenant does not receive within thirty (30) days from execution of this Lease Agreement approval ... Tenant may withdraw from this lease,” did not specify time for terminating and thus law would imply a reasonable time), aff'd, 71 A.D.3d 822, 897 N.Y.S.2d 487 (N.Y.A.D.2010). Here, there is no doubt and even the appellant does not contend otherwise, that the tenant terminated within a reasonable time — one day after it knew the property could not be used as intended and five days before the lease even began.

3. Finally, the landlord’s position on this point makes little sense in the real world in which the parties found themselves. Under its view, the tenant would have to have terminated on or before ninety days after the addendum was executed. On that date, however, the application for zoning was still pending and it would have had to abandon its reasonable efforts to secure the ability to use the premises as both parties devoutly wished. We will not infer that they intended such a self-defeating result.

Affirmed.

EYANDER and JACOBUS, JJ., concur.

      . We have omitted a separate, so called "60 day” termination clause which applied when government action prevented the “continuation” of the lessee's business. Although the tenant attempted to comply with this provision as well, our holding makes it unnecessary to resolve the conflicting arguments as to whether it could ever apply to a situation in which the tenant's business never began. (We tend to believe, however, that it could and does not.)

      . The lessee later also attempted to comply with the "60 day” clause. See note 1, supra.

      .Although on his own turf, the writer has sought to modernize this hoary expression into the "drunken cabbie” doctrine, see Tubbs v. State, 897 So.2d 520, 523 (Fla. 3d DCA 2005), he does not feel comfortable, as a visitor to the Fifth District, to attempt such a monumental change in another court’s established jurisprudential nomenclature. See Foss v. State, 24 So.3d 1275, 1276-1277 (Fla. 5th DCA 2009) (applying "tipsy coachman” rule); Sullivan v. State, 913 So.2d 762 (Fla. 5th DCA 2005) (same).

      . In support of its conclusion Wiseheart, 862 So.2d at 735 says:
      See Shore Inv. Co. v. Hotel Trinidad, Inc., 158 Fla. 682, 683, 29 So.2d 696, 697 (1947)("[I]f knowledge of the facts making performance impossible were available to the promisor, he cannot invoke them as a defense to performance.”); Sarasota-Manatee Airport Auth. v. Racing Wheels, Inc., 5 B.R. 309, 313 (Bankr.M.D.Fla.1980)(“The [lessee]'s third defense of economic frustration is equally without merit for not only was the risk of failing to procure the necessary zoning changes foreseeable, it was clearly contemplated by the parties and the failure to make provision in the lease agreement for a denial of the zoning change indicates an assumption of such risk on the part of the [lessee].”); Rosique v. Windley Cove, Ltd., 542 So.2d 1014 (Fla. 3d DCA 1989)(recision reversed when parties agreed to "take their chances” that existing building restrictions would be lifted); Caidin v. Poley, 313 So.2d 88 (Fla. 4th DCA 1975); see also Warshawsky v. American Auto. Prods. Co., 12 Ill.App.2d 178, 138 N.E.2d 816 (1956); Sachs Steel & Supply Co. v. St. Louis Auto Parts & Salvage Co., 322 S.W.2d 183 (Mo.App.1959); Schlesinger v. Levine, 28 Misc.2d 654, 212 N.Y.S.2d 904 (N.Y.Sup.Ct.1961). Compare Marks, 160 Fla. at 789, 36 So.2d at 612 (contrary dictum in case in which neither party knew of zoning restrictions).


author: GRIFFIN, J.

text:
    C.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.

      James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

C.M., a child, appeals his adjudication of delinquency for possession of twenty grams or less of cannabis. He argues that the trial court erred by denying his oral motion to suppress the cannabis that was the product of an illegal search and seizure. He also argues that the trial court erred by denying his motion for judgment of dismissal where the evidence did not establish his constructive possession or his knowledge of the contraband. We conclude there was sufficient record evidence to support the conviction, and we find no reversible error in the trial court’s refusal to entertain the suppression motion because it was untimely.

When the State attempted to admit cannabis found in proximity to C.M. into evidence, defense counsel objected, asserting “that the search was patently illegal” and that there were “chain of custody issues.” The State objected that C.M. had not filed a motion to suppress. The State relied on Florida Rule of Juvenile Procedure 8.085, which requires the filing of a suppression motion prior to the date of the adjudicatory hearing. The trial court refused to consider C.M.’s oral motion to suppress the cannabis because no written motion to suppress had been filed.

A trial court’s denial of a motion to suppress as untimely is subject to an abuse of discretion standard of review. See B.M. v. State, 915 So.2d 649, 652 (Fla. 2d DCA 2005). Because C.M. had not filed a motion to suppress prior to the date of the adjudicatory hearing, and this was not a case where C.M. lacked the opportunity to make a motion to suppress prior to the date of the adjudicatory hearing, the trial court did not abuse its discretion.

C.M. contends on appeal that the failure to timely file the motion was due to “confusion concerning the appointment of the public defender,” and his mother’s failure to appear to complete the necessary paperwork for the appointment of counsel until the morning of the hearing. It was conceded by C.M. that he had previously met with defense counsel, but he asserts “the grounds for the motion did not become obvious until Officer Bishop testified.” The State objects that the exception to the filing deadline was not argued below. Moreover, we note that at the beginning of the adjudicatory hearing, the trial judge voiced his concern that it had taken so long for the appointment of counsel paperwork to be completed. He confirmed with defense counsel and C.M. that they had met prior to the day of the hearing and that they were ready for trial.

AFFIRMED.

SAWAYA and PALMER, JJ., concur.


author: LAWSON, J.

text:
    James C. TURNER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4541.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

James C. Turner, Jr., appeals from his judgment and sentence on a charge of battery, enhanced to a third degree felony by a prior battery. He argues that the conviction should be reversed because the trial court erred when it failed to grant his motion to strike the jury panel. This motion was made after a member of the venire indicated that she knew the defendant because she “was a former corrections officer at the Marion County Jail.” See Richardson v. State, 666 So.2d 223 (Fla. 2d DCA 1995) (holding that trial court reversibly erred by denying defendant’s motion to strike venire, in light of exchange between prosecutor and prospective jury member suggesting that she knew defendant through her employment as corrections officer, thereby implying that he was convicted felon who previously served time).

The State argues that this comment, in context, should have been understood by the rest of the venire as an indication that the former corrections officer recognized either the defendant or one of the attorneys. However, later questioning of other venire members revealed that at least some of the panel members understood the comments to mean that the corrections officer had prior experience with Turner because he had been incarcerated in the past, and possibly on other charges. Although the trial judge attempted to remedy any potential prejudice with a curative instruction, our review of the record convinces us that the instruction given could not have cured the potential prejudice caused by the comment. Accordingly, we reverse Turner’s conviction and remand for a new trial.

REVERSED AND REMANDED.

GRIFFIN and ORFINGER, JJ„ concur.

      . See § 784.03(2), Fla. Stat. (2009).


author: KAHN, J.

text:
    DEPARTMENT OF REVENUE on behalf of Casey Sanders POYNTER, Appellant, v. Shawn A. BUNNELL, Appellee.
    No. 1D10-1854.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.

      Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    Daniel H. Cox, Carrabelle, for Appellee.
   KAHN, J.

On behalf of the mother, Casey Poynter, the Department of Revenue (DOR), challenges a final judgment of paternity directing the DOR to allocate a portion of Poynter’s public assistance benefits to the father. We reverse, because the trial court lacked authority to make such a determination. Additionally, such finding as to the DOR contravenes due process of law, and is not allowed by the controlling statute.

BACKGROUND

On July 13, 2009, Casey Poynter, the mother of S.R.B., brought an individual action against the appellee, Shawn A. Bun-nell, to establish paternity and her right to child support. DOR moved to intervene and amend the style of the case, asserting that Poynter “was receiving public assistance or is otherwise eligible for the services of the Department which have been requested.” Before the Department’s motion could be heard, the trial court held a hearing on the paternity and support action and rendered a final judgment of paternity.

The judgment established Bunnell as the legal and natural father of S.R.B. and ordered joint custody and shared responsibility of the child, pursuant to section 61.13(2), Florida Statutes (2009). Noting that the statutorily required support calculation was de minimis, the court stated, “no child support payment shall be required until the parties financial positions change or their parenting allocations change.” Further, the court instructed DOR to allocate “[pjresent AFDC [Aid to Families with Dependent Children] assistance available for said child” equally between the parents. In a subsequent order granting the motion to intervene, the court ordered that the style of the case “be amended to reflect the intervention of [DOR] as a party to this matter.”

On appeal, DOR characterizes the final judgment as erroneous as a matter of law, asserting that public assistance to eligible recipients no longer is paid under AFDC, but by the Temporary Assistance for Needy Families (TANF) federal block grant program. Moreover, DOR contends that only the appropriate state agency, not the trial court, can make a determination as to TANF eligibility. We review de novo whether the trial court applied the correct legal standard. See Nelson Tree Serv. Inc. v. Gray, 978 So.2d 198, 201 (Fla. 1st DCA 2008).

ANALYSIS

We acknowledge at the onset, and briefly explain, the benefit misidentification of which the Department complains. As part of the Congress’ welfare reform efforts of 1996, the AFDC entitlement program was discontinued and replaced by the TANF federal block grant program, to be overseen at the federal level by the United States Department of Health and Human Services (HHS). See 42 U.S.C. § 601 (1997). In Florida, TANF is administered by the Department of Children and Families (DCF), pursuant to chapter 414, Florida Statutes (2009). Under the definition section of chapter 414, “ ‘[temporary cash assistance’ means cash assistance provided under the state program certified under Title IV-A of the Social Security Act, as amended.” See § 414.0252(12). The “state program” certified under Title IV-A is TANF, providing for block grants to states for temporary assistance to needy families. See 42 U.S.C. § 601. From a semantic standpoint, therefore, the court erred in referring to assistance under the now defunct Aid to Families with Dependent Children program. We cannot, however, simply strike that portion of the order referring to AFDC, but must address the import of the order as if it had correctly characterized TANF.

The question turns on the authority of the trial court to make a ruling as to TANF eligibility. Pursuant to section 414.095(1), “[t]he department [DCF] shall make a determination of eligibility” for temporary cash assistance. Such determinations are to be based on criteria listed in chapter 414, and must be preceded by an application for assistance. See §§ 414.095(1) (requiring applicant to be a legal resident of the state), 414.095(8). Here, the final judgment ordered DOR to allocate present assistance being received by Poynter equally between the parties. TANF eligibility determinations being the sole province of DCF, the court erred as a matter of law by, in effect, making a determination as to public assistance eligibility in the final judgment of paternity.

Even if we assume the court had proper judicial authority to make a ruling on TANF eligibility, the order on its merits cannot be reconciled with the provisions of Florida’s temporary cash assistance statute. “If the parents of a minor child live apart and equally share custody and control of the child, a parent is ineligible for ... assistance unless the parent clearly demonstrates ... that the parent provides primary day-to-day custody.” See § 414.095(14)(i). Record evidence in this matter indicates that the mother and father live at separate addresses, and that Poynter had qualified for and was receiving TANF funds. Only one parent can provide “primary” day-to-day custody — if the mother was receiving TANF benefits on account of her provision of primary day-to-day custody, then the father could not also demonstrate the same. As a result, the judgment directing the Department to allocate to the father a portion of the mother’s TANF benefits countermands the terms of section 414.095(14)®.

For future purposes, we note also that the judgment mischaracterizes the delegated executive authority regarding allocation of benefits. DCF is charged with the administration of TANF benefits under Florida law. See §§ 414.025-414.55, Fla. Stat. DOR, on the other hand, oversees the administration of Florida’s child support enforcement program, which the state must maintain as a precondition to receiving federal grants under the TANF program. See § 409.2557(1), Fla. Stat. The court, although crafting what it saw as a just result, therefore encroached upon the statutory duties of DCF to the extent its judgment directs DOR to allocate the TANF benefits at issue.

Finally, we consider the Department’s due process claim. Whether the trial court has complied with the guarantees of due process is subject to de novo review. See Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). The constitutional guarantee of due process, “ ‘which extends into every proceeding, requires th[at] the opportunity to be heard be full and fair, not merely colorable or illusive.’ ” See Edelman v. Breed, 836 So.2d 1092, 1094 (Fla. 5th DCA 2003) (quoting Pelle v. Diner’s Club, 287 So.2d 737, 738 (Fla. 3d DCA 1974)). The right to be heard “has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

Nothing in the record indicates that either the court or the parties expressed an intent to entertain issues of public assistance at the hearing on the petition to determine paternity. Neither the petition nor any other pleading before the court mentions public assistance benefits, TANF or otherwise. Nor did the court notice this issue for hearing. By entering the final judgment disposing of a public assistance issue, and thereby depriving DOR of an opportunity to be heard, the court skirted the requirements of due process. See Mullane, 339 U.S. at 314, 70 S.Ct. 652. For these reasons, we REVERSE the final judgment and REMAND for proceedings consistent with this opinion.

VAN NORTWICK and THOMAS, JJ., Concur.


text:
    Marshall Ross JONES, Jr., former husband, Appellant/Cross-Appellee, v. Stephanie L. JONES, former wife, Appellee/Cross-Appellant.
    No. 1D09-5010.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.
    Jesse Caedington, of Scruggs & Carmichael, P.A., Gainesville, for Appellant/Cross-Appellee.
    Cynthia Stump Swanson, of Cynthia Stump Swanson, P.A., Gainesville, for Ap-pellee/Cross-Appellant.
   KAHN, J.

The trial court entered a final judgment dissolving the marriage of Marshall Ross Jones, Jr., the husband, and Stephanie L. Jones, the wife. In pertinent part, the court 1) classified a promissory note— signed by the husband (the payee) and his mother, Annette B. Jones (the maker) — as a marital obligation; 2) valued the promissory note at $112,500.00, or 50% of its $225,000.00 face value, for equitable distribution purposes; 3) found the husband intentionally wasted or dissipated marital assets; and 4) denied the wife’s motion for attorney’s fees and costs. The husband appeals the discounting of the promissory note and the finding of marital waste. The wife cross-appeals the designation of the promissory note as a valid marital debt and the denial of her attorney’s fees and costs. We affirm without comment the trial court’s factoring the dissipation into the equitable distribution under section 61.075(l)(i), Florida Statutes (2007), and Rabbath v. Farid, 4 So.3d 778, 780-81 (Fla. 1st DCA 2009), and the court’s denial of fees and costs. We affirm the valuation of the note for the reasons that follow.

FACTUAL AND PROCEDURAL BACKGROUND

In her petition for dissolution, the wife requested an equitable distribution of assets and liabilities. In his response and counter-petition, the husband characterized the subject promissory note as a valid marital debt; the wife contended the note is inauthentic, essentially valueless, and not a marital liability.

Before the parties’ marriage, the husband’s father deeded to him a parcel of North Carolina real property. The husband’s mother, Annette B. Jones, deeded the husband two additional North Carolina parcels of real property in 2002. The mother testified that when she executed the deed to her son, she and he entered a temporary transfer of property agreement stipulating that the sole purpose of the transfer was management of the land, all of which was leased out for farming. During the marriage, the parties became interested in purchasing a vacation home and eventually settled on a lake house. The husband testified that together, he, the wife, and his mother discussed selling the North Carolina parcels to fund the purchase of the lake house. When the North Carolina properties were sold to a third party in 2006 for $325,000.00, Mrs. Jones’ representative shredded the temporary transfer agreement. Despite his title to these lands, the husband testified he had agreed with his mother to share the land with his siblings and not to retain the land permanently as his own.

Pursuant to that arrangement, the husband gave his mother a promissory note stating that for value received, he promised to pay Annette B. Jones $225,000.00, without interest, on demand or in annual payments of $5,000.00 during Mrs. Jones’ lifetime. The remaining balance due at the time of Mrs. Jones’ death would be fully payable to her estate. The note stated that payments were to begin on January 15, 2008, and that security for this loan was $225,000.00 of the equity in 12.9 acres of real property, together with the parties’ lake house on that parcel. The face of the note indicates the husband and his mother signed it on September 3, 2006, some four years after Mrs. Jones deeded the North Carolina farm property to her son. Annette B. Jones testified the note was executed before the closing on the lake house, as a means of providing the husband with sufficient funds to buy that property. He did not receive cash in exchange for the note. Instead, most of the $325,000.00 from the sale of the farm land went into a marital bank account and then was used to fund the September 2006 closing on the parties’ lake house. The husband testified his wife knew the parties were borrowing money from his mother to purchase the lake house. Annette B. Jones testified she gave the husband a copy of the note in the wife’s presence.

The wife, who did not sign the promissory note, asserted in the trial court that she had no contemporaneous knowledge of either the note or the obligation to pay back any amount to her mother-in-law. She claimed to have never heard of or seen the note until the dissolution proceedings commenced and her relationship with Annette B. Jones deteriorated. The parties agreed, however, they could not have purchased their lake house without the monies provided them by Mrs. Jones, traceable to the sale of the North Carolina property. The parties made no stipulation as to the true value of the note. The testimony of the husband and his mother directly conflicted with the wife’s testimony relating to the circumstances surrounding the creation of the promissory note and its intent and enforceability. The wife expressed great doubt as to whether her mother-in-law would actually enforce the terms of the note against her son.

In the final judgment, the judge identified the promissory note as a marital liability, finding the former husband incurred the obligation during the marriage. The court did not, however, believe that Annette B. Jones would actually require her son to repay the note in full. Despite the language in the note, the trial court concluded the note lacked the formalities necessary to encumber the lake house property. The court determined not to value the note at its full face value and, instead, assigned to the note a value of $112,500.00. Thus, the trial court accorded some credence to the note as a marital obligation while rejecting evidence it would be fully enforced by Mrs. Jones. On appeal, the husband claims he should be assigned the note’s full value as a marital debt for purposes of equitable distribution. The wife claims error in characterizing the note as a marital obligation at all.

ANALYSIS

The ultimate conclusion as to whether a debt is marital or nonmarital is an issue of law subject to de novo review. Smith v. Smith, 971 So.2d 191, 194 (Fla. 1st DCA 2007). We do not, however, sit as finders of fact as to matters determined by the trial court and supported by competent substantial evidence. Jeantilus v. State, 944 So.2d 500, 501 (Fla. 4th DCA 2006). Under the equitable distribution statute, marital liabilities include “liabilities incurred during the marriage, individually by either spouse or jointly by them.” § 61.075(5)(a)l., Fla. Stat. (2007). Competent substantial evidence demonstrated the husband and his mother signed the note in September 2006, during the parties’ marriage. All liabilities incurred by either spouse after the date of the marriage, and not specifically shown to be nonmarital liabilities, are presumed to be marital liabilities; this presumption is overcome, for evidentiary purposes, by showing the liabilities are nonmarital. § 61.075(7), Fla. Stat. Here, the evidence supports the court’s classification of the promissory note as a marital debt. Competent substantial evidence, including testimony concerning the wife’s knowledge of the note and the parties’ means of acquiring the lake house, supports the trial court’s decision that the note, once characterized as a liability, had some value, but not necessarily its face value.

A trial court has broad discretion to fashion an equitable distribution of assets and liabilities. Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003). It is the parties’ duty to present evidence to support their claims, and the trial court’s accuracy in valuing an asset or liability is only as good as the evidence offered. See Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162, 165 (Fla.1963). By contending the note was a belated contrivance and had no value, the wife made valuation an issue. The husband asserts the trial court — having heard his argument that the note is worth its full face value of $225,000.00 and the wife’s argument that the note is invalid and worthless — was required as a matter of law to value the note at either zero or its face value, rather than apply a Solomonic formula by splitting the difference or choosing some other value between those two figures.

We find no such rigid requirement in the Florida law of equitable distribution, nor has the husband cited any binding authority. The trial court, in its discretion, had to give the note some true value for equitable distribution purposes. See Cornette v. Cornette, 704 So.2d 667, 669 (Fla. 2d DCA 1997) (concluding the net value of real property for marital asset distribution purposes should have been based on the amount former husband was willing to pay former wife for her interest, rather than the parties’ equity in the property, where the property was in foreclosure and the tenants were bankrupt and no longer paying rent); Ritter v. Ritter, 690 So.2d 1372 (Fla. 2d DCA 1997). In that respect, the trial judge stood in a superior position to evaluate the credibility of the parties and of Annette B. Jones in determining the circumstances and intent surrounding the creation, timing, and col-lectability of the note. The obligation here, far from being limited to its facial recitation, is more like a debt memorialized by a promissory note, owed by a company no longer in business — the actual valuation of the debt is likely to be significantly less than its face value due to the unlikelihood a creditor will receive the full amount from the debtor. This case represents an instance where, despite the face amount of the note, the court relied on competent substantial evidence indicating the true value of the marital debt is significantly less. Moreover, valuation of such an obligation was not amenable to expert opinion. Under these conditions, where the trae value of the note was somewhere between the face value and zero, we cannot say the trial court abused its broad discretion by discounting the face amount to achieve an equitable distribution. See Cornette, 704 So.2d at 667.

In other “split the difference” decisions cited by the husband, where the valuation of an asset for equitable distribution purposes relied on expert opinions, Florida appellate courts have reversed the trial court’s valuation in an amount different from the amount stated by an expert. See, e.g., Augoshe v. Lehman, 962 So.2d 398, 402-03 & n. 1 (Fla. 2d DCA 2007) (finding no competent substantial evidence to support the trial court’s $3.5 million valuation of a motel purchased by the husband during the marriage, where he relied solely on the $2.8 million purchase price but the wife’s expert opined the respective values were $4.3 million or $4.4 million, depending on whether he applied the income approach or the sales approach, and the trial court reached its valuation figure apparently by adding $4.3 million and $2.8 million and then dividing the sum by two); Spillert v. Spillert, 564 So.2d 1146 (Fla. 1st DCA 1990). In Spillert, the husband’s expert valued the husband’s medical practice at $140,690; the wife’s expert valued the practice at $560,660 to $682,118. In resolving equitable distribution and support issues, the trial court added the husband’s valuation to the wife’s low-end valuation and then divided the sum, valuing the practice at $850,675. We reversed the awards for support and equitable distribution, stating that the higher valuation was based on “a legally erroneous analysis,” and directing the trial court to use the husband’s valuation figure — the only competent substantial evidence — in resolving support and property distribution issues. 564 So.2d at 1147-48.

The husband also cites Solomon v. Solomon, 861 So.2d 1218 (Fla. 2d DCA 2008), in which the Second District Court reversed the trial court’s valuation of the marital residence for purposes of equitable distribution, which split the difference between the valuations offered by the husband and the wife. The district court concluded that no competent substantial evidence supported the lower tribunal’s valuation figure. Id. at 1221. In contrast to those decisions on which the husband relies, the valuation of the promissory note in the instant case is not an issue for resolution by expert opinion. Given the peculiar circumstances and conflicting evidence involving the creation, timing, and enforceability of the promissory note, we can readily distinguish those decisions disallowing a splitting of the difference in values. As with properties subject to bankruptcy, the actual valuation of the note is substantially less than its face value, and the trial court correctly exercised its discretion to achieve an equitable result.

AFFIRMED.

VAN NORTWICK and THOMAS, JJ., concur.


author: PER CURIAM.

text:
    Bobby COBURN, Appellant, v. POLK COUNTY BOARD OF COUNTY COMMISSIONERS and Commercial Risk Management, Appellees.
    No. 1D10-0251.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.
    Scott F. Eldridge of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, Tallahassee, for Appellant.
    Thomas P. Vecchio of Ross Vecchio, P.A., Lakeland, for Appellees.
   PER CURIAM.

Bobby Coburn, claimant, appeals a final order of the Judge of Compensation Claims (JCC) which determined that Co-burn’s claim was barred by the one-year statute of limitations in section 440.19(2), Florida Statutes (2009). Claimant sought authorization of an appointment with an authorized treating provider to address problems with claimant’s hearing aids that had been provided as a result of his com-pensable hearing loss caused by injuries incurred in a 1999 industrial accident. Based on a finding that more than one year had passed since the last payment, treatment or care relating to the hearing loss, the JCC concluded the statute of limitations barred the claim.

Here, it is undisputed that the claimant’s hearing aids are prosthetic devices which are being used to mitigate the effects of a compensable injury. Under our recent holding in Gore v. Lee County School Board, 43 So.3d 846, 848-49 (Fla. 1st DCA 2010), the statute of limitations would have been tolled, if the employer or carrier had knowledge of claimant’s continued use. Such knowledge is an issue of fact not reached by the JCC (most likely because the order on appeal was entered without the benefit of our decision in Gore). Accordingly, we reverse and remand for further proceedings. On remand, the JCC need only determine whether the employer or carrier had knowledge, whether express or implied, of the claimant’s continuous use of his hearing aids. See Gore, 43 So.3d at 850; Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127 (1932) (explaining distinction between express actual notice and implied actual notice).

REVERSED.

KAHN, VAN NORTWICK, and THOMAS, JJ., concur.