author: LEVINE, J.

text:
    Zafar NAWAZ, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D10-4288.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Rehearing Denied July 27, 2012.
    Peter J. Mineo and Erik D. Diener of Mineo & Mineo, P.A., Fort Lauderdale, for appellant.
    John P. Joy and Kelly M. Corcoran of Walton, Lantaff, Schroeder & Carson, LLP, Fort Lauderdale, for appellee.
   LEVINE, J.

The issue presented in this case is whether the insurance policy prevents the insured from having his public adjuster present during the examination under oath. We find, under the plain language of the insurance contract between the parties, that the insured was not prohibited from having his public adjuster present during the insured’s examination under oath.

Appellant sought to recover under his insurance policy for wind damage to his home. After inspecting the home’s damages appellee issued appellant a check for $14,416. Four years later appellant, while utilizing a public adjuster, submitted a new estimate for damages to his home totaling $138,419. Appellant also invoked his right to appraisal pursuant to the insurance policy. Appellee indicated that it was investigating appellant’s claim and scheduled appellant for an examination under oath.

The insurance policy states the following:

SECTION I — CONDITIONS
2. Your Duties After Loss. In case of a loss to covered property, you must see that the following are done:
f. As often as we reasonably require:
(3) Submit to examination under oath, while not in the presence of any other “insured,” and sign the same....

The insurance policy specifically defined “insured” as:

3. “Insured” means you and residents of your household who are:
a. Your relatives; or
b. Other persons under the age of 21 and in the care of any person named above.

Appellant appeared at the scheduled examination under oath with his public adjuster. Appellee requested that the public adjuster leave the room before the examination was conducted. Appellant refused to instruct the adjuster to leave the examination, so appellee suspended the examination. As a result, appellee filed a complaint for declaratory relief, claiming that appellant failed to comply with the insurance policy. Appellant also filed claim for declaratory relief as a counterclaim.

The trial court determined that the insurance policy “would exclude public adjustors from attendance at sworn statements.” The court recognized that “[t]he language in the policy forbids any other insured to be present but is silent as to anyone else.” However, the court was concerned that restricting the interpretation of the policy to exclude only another “insured” would lead to results such as allowing the presence of the press, other insurance companies, or members of the general public. Further, the court was concerned as to the participation of the public adjuster, since the adjuster’s participation would be limited. The court determined that appellant’s public adjuster could not attend the examination under oath. As a result, this appeal ensues.

The interpretation of a contract by a trial court is subject to a de novo standard of review. Gossett & Gossett, P.A. v. Mervolion, 941 So.2d 1207, 1210 (Fla. 4th DCA 2006). “In construing a contract, the intention of the parties is ascertained from the language used in the instrument and the object to be accomplished and unless clearly erroneous, the construction placed upon a contract by the trial judge should be affirmed.” Id. However, “[w]here the language of a contract is clear and unambiguous, the court can give to it no meaning other than that expressed.” Wellington Realty Co. v. ColorAll Techs. Int’l, Inc., 951 So.2d 921, 922 (Fla. 4th DCA 2007).

We find that the plain language of the contract would allow appellee to exclude only another insured from the examination under oath. The clear language of the insurance policy states that appellant can be required to submit to an “examination under oath, while not in the presence of any other ‘insured.’ ” The contract defines “insured” as “you and residents of your household who are ... [y]our relatives; or ... [o]ther persons under the age of 21 and in the care of any person named above.” Clearly the public adjuster does not fit into the plain language of the definition of “insured.”

Further, to the extent that the policy is considered uncertain, we are compelled to construe the interpretation against the insurer. Rigel v. Nat’l Cas. Co., 76 So.2d 285, 286 (Fla.1954). Appellee, as the drafter of the contract, could have easily included language that would have excluded the public adjuster from the examination under oath. Instead, the policy delineated only the “insured” as being excluded from the examination under oath.

By ignoring the plain language of the contract, the trial court essentially rewrote the contract. See Harrington v. Citizens Prop. Ins. Corp., 54 So.3d 999, 1002 (Fla. 4th DCA 2010) (“Courts may not ‘rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.’ ”) (citation omitted); Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla.1955) (“It is well settled that courts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.”).

We find the case of Widener v. Tennessee Farmers Mutual Insurance Co., No. 03A01-9506-CV-00203, 1995 WL 571868 (Tenn.App.Ct. Sept. 29, 1995), to be persuasive. In Widener, the insureds refused to submit to an examination under oath unless accompanied by their independent insurance adjuster. The appellate court reversed the trial court’s granting of a summary judgment in favor of the insurers, and found that “[i]n the policy there is no prohibition against the insured having a witness present during the giving of the statement under oath nor is there any limitation as to whom witnesses, if any, might be.” Id. at *1. The appellate court concluded that “[i]t would have been a simple matter for the insurance company to have written such a limitation or limitations into the policy.” Id. Similarly, in the present case, it would have been a “simple matter” for appellee to have written a restriction into the policy limiting those who could be present for the examination under oath.

In conclusion, we find that the trial court erred in failing to give effect to the plain language of the insurance policy. We are bound by the policy’s plain language and guided by the words of Judge Learned Hand, who wrote over a hundred years ago:

A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved ... that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake, or something else of the sort.

Hotchkiss v. Nat’l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y.1911). Similarly, in the present case, appellee should be “held” to the “words” and their “usual meaning.”

Reversed and remanded.

POLEN and HAZOURI, JJ., concur.

      . Section 626.854(1), Florida Statutes (2009), defines a public adjuster as
      any person, except a duly licensed attorney at law ... who ... prepares, completes, or files an insurance claim form for an insured or third-party claimant or who ... acts or aids in any manner on behalf of an insured ... in negotiating for or effecting the settlement of a claim or claims for loss or damage covered by an insurance contract.... Further, "[a] public adjuster may not give legal advice.” § 626.854(3), Fla. Stat.

      . Courts have interpreted similar insurance provisions to allow the presence of the insured's attorney or own stenographer. 16 A.L.R 5th 412; see also 13 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 196:10 (3d ed. 2011).


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Terrell Patton YOUNGBLOOD, Jr., Appellant, v. Angela Marie Fasick YOUNGBLOOD, Appellee.
    Nos. 2D09-4648, 2D09-5863.
    District Court of Appeal of Florida, Second District.
    June 13, 2012.

      Terrell Patton Youngblood, pro se.
    Michael J. Park of Park, Ossian, Bar-naky & Park, P.A., Clearwater, for Appel-lee.
   ON MOTION TO REVIEW APPELLATE ATTORNEY’S FEES AWARD

NORTHCUTT, Judge.

We previously affirmed the final order in this postjudgment family law proceeding. At that time, we remanded Angela Youngblood’s motion for appellate attorney’s fees to the circuit court to determine whether she was entitled to an award of fees and, if so, to award them in a reasonable amount. Pursuant to Florida Rule of Appellate Procedure 9.400(c), Terrell Youngblood seeks review of the court’s order on remand. We affirm without discussion the court’s determination to award Ms. Youngblood all of her reasonable fees, we strike the award of suit money, and we direct the court to reduce the fee award as set forth below.

The order on remand awarded Ms. Youngblood $1087 in expenses that it labeled “suit money.” The impetus for that characterization was Mr. Youngblood’s objection when, at the hearing below, Ms. Youngblood’s counsel sought reimbursement for a list of costs incurred during the appeal. Mr. Youngblood argued that Ms. Youngblood had not moved for an award of costs, and certainly had not done so within thirty days after this court’s mandate, as required by rule 9.400(a). Her counsel responded that the court could disregard the time limit by treating the items as “suit money” because section 61.16, Florida Statutes (2010), permits a court in a family law case to award attorney’s fees, suit money, and costs.

We doubt that simply recasting the claim as one for suit money instead of for costs is effective to avoid the deadline imposed by the rule. The predecessors to section 61.16 simply permitted an award of “suit money.” §§ 65.07, .08, Fla. Stat. (1965). The courts recognized that this included attorney’s fees and costs. Wilkerson v. Wilkerson, 179 So.2d 592 (Fla. 2d DCA 1965) (holding that “suit money” includes costs); Scanlon v. Scanlon, 154 So.2d 899 (Fla. 1st DCA 1963) (“suit money” includes attorney’s fees). In other words, although under the current statute suit money may consist of something in addition to attorney’s fees and costs, the latter are at least subsets of the former. The circuit court could accurately refer to this award as one for “suit money,” but if the substance of a suit money allowance is to reimburse costs, for purposes of the rule it is a costs award.

Be that as it may, Ms. Young-blood’s motion sought only appellate attorney’s fees. She did not move for an award of appellate costs or “suit money.” That being so, the circuit court should not have awarded them over Mr. Youngblood’s objection. See Bryan v. Bryan, 342 So.2d 858 (Fla. 2d DCA 1977). Therefore, we strike the suit money award.

In its order the circuit court found that the reasonable hourly rates for the two attorneys who represented Ms. Young-blood were $400 and $300, respectively, and that a reasonable hourly rate for paralegal work was $100. Although the court found that the time spent representing Ms. Youngblood was reasonable, its order did not specify the number of hours reasonably expended. At the hearing, one of Ms. Youngblood’s attorneys testified that the total attorneys’ time was 9.7 hours at the $400 rate and 78.2 hours at $300. Paralegal time totaled 4.9 hours at $100. All told, this came to $27,830.

Vis-á-vis the paralegal time, at the hearing Ms. Youngblood’s attorney acknowledged that clerical work was not compensable, and he assured the court that such had been excluded from the claim. Indeed, section 57.104, Florida Statutes (2010), provides that when awarding attorney’s fees the court must consider the time and labor of paralegals “who contributed nonclerical, meaningful legal support to the matter involved.” (Emphasis supplied.) See Madden v. Madden, 865 So.2d 555 (Fla. 3d DCA 2003) (applying § 57.104 in a dissolution case and disallowing fees for paralegals not shown to have performed any nonclerical, meaningful legal support to the matter). In this case, our review of the attorneys’ time records discloses that just over half the claimed paralegal time was spent on clerical or secretarial activities, e.g., mailing and emailing the answer brief to the clerk of this court, telephoning the circuit court’s judicial assistant to schedule a hearing, telephone conferences with the client and opposing counsel, and performing “file review” and “file maintenance.” Such activities are not properly included in an attorney’s fee award. See, e.g., Dayco Prods. v. McLane, 690 So.2d 654 (Fla. 1st DCA 1997) (holding that paralegal time for fax transmissions and telephone conferences with opposing counsel and the judge of compensation claims office was not recoverable). We conclude that 2.25 hours of time claimed for paralegal activities was properly included in Ms. Youngblood’s fee award.

Mr. Youngblood contends that the time claimed for Ms. Youngblood’s attorneys’ work in the appeal was excessive. At the hearing below he presented testimony from the appellate attorney who represented him in the appeal and expert testimony from another appellate specialist. Both expressed their astonishment at the number of hours claimed. The expert characterized the claim as “shocking.” She opined that Ms. Youngblood’s representation in the appeal should have consumed no more than 10 or 15 hours.

On this issue, Ms. Youngblood’s response to the motion to review the fee award in this court is not particularly helpful. Beyond pointing out the relative lengthiness of the record on appeal, the response consists mainly of a spirited condemnation of Mr. Youngblood’s “extreme litigiousness” and a reminder that the circuit court found that his expert was not credible. But we note that the appeal in this case was not abnormally litigated. And although we disagree with the expert’s view that Ms. Youngblood’s representation could have been accomplished in as little as 15 hours, we share her incredulity about the time expended in this case.

An appellate court, based on its familiarity with the work performed before it, may reduce an excessive fee that has been awarded for that work. Hoegh v. Estate of Johnson, 985 So.2d 1185 (Fla. 5th DCA 2008); G.H. Johnson Constr. Co. v. A.P.G. Elec., Inc., 656 So.2d 566 (Fla. 2d DCA 1995); Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282 (Fla. 1st DCA 1997); Dalia v. Alvarez, 605 So.2d 1282 (Fla. 3d DCA 1992). We conclude that the circuit court abused its discretion by awarding an excessive fee for Ms. Young-blood’s appellate representation in this case.

This was not a complex appeal. Procedurally, the case followed a normal course and involved only mundane motion activity. The issues presented on the merits were straightforward and of average complexity at most. The appellate record was lengthy, as Ms. Youngblood points out, but not extraordinarily so. And the attorney who prepared her answer brief was sufficiently versed in the trial proceedings and the applicable law to have authored the written closing argument filed in the circuit court after trial. Both of Ms. Young-blood’s attorneys are experienced and highly skilled appellate family law practitioners, commensurate with their reasonable $400 and $300 hourly rates. Attorneys of their high caliber reasonably should have accomplished her representation in far less time than they recorded.

We have determined that the reasonable fees for Ms. Youngblood’s representation in this appeal are as follows: 6 hours of attorney time at $400 per hour, 40 hours of attorney time at $300 per hour, and 2.25 hours of paralegal time at $100 per hour, for a total of $14,625. On remand, the circuit court shall enter an order awarding her that amount, less a credit for $8500 in temporary appellate attorney’s fees previously paid by Mr. Youngblood, for a net final award of $6125. As mentioned, we strike the “suit money” award, and the circuit court shall make no allowance therefor.

Affirmed in part; reversed in part; remanded with directions.

WALLACE and MORRIS, JJ., Concur.

      . The order contains a mathematical error. It awarded $28,507, including $1087 in costs. Based on the circuit court’s findings, the figure should have been $28,917.


author: PER CURIAM.

text:
    Vincent C. SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4008.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Rehearing Denied July 27, 2012.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GROSS, JJ., and BLOOM, BETH, Associate Judge, concur.


author: SALTER, J.

text:
    Claudio BEGGI, Appellant, v. OCEAN BANK, a Florida banking institution, Appellee.
    Nos. 3D11-1978, 3D11-1977.
    District Court of Appeal of Florida, Third District.
    June 13, 2012.

      Gilbert & Caddy and Bryce J. Gilbert, for appellant.
    Louis K. Nicholas II, for appellee.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

On Motion to Dismiss

Claudio Beggi appeals two final judgments of foreclosure in favor of his mortgage lender, Ocean Bank. As these cases involve units in the same condominium building, judgments entered and appealed contemporaneously, a single lender, and common issues of law and fact, we have consolidated the appeals on our own motion. Because of the appellant’s ill-conceived effort to circumvent or otherwise obstruct the judicial process by transferring the condominium units to limited liability companies under his control after the final judgments were entered, but before filing his notices of appeal, we dismiss each of the appeals for lack of standing.

Background

In early 2007, Beggi purchased Turnber-ry Village South Tower condominium units 812 and PH-18 for investment. The appellee provided mortgage loans for the transactions. Beggi stopped repaying the mortgage loans in August 2009, and foreclosure actions were filed in 2010. Ocean Bank moved for final summary judgments in May and June 2011. In opposition to the motions, Beggi argued that additional documentary discovery was due, that he wished to further amend his affirmative defenses, and that his own conclusory affidavit precluded summary judgment. He did not allege under oath that the loans were not made and advanced for the purchase of the condominium units; that the notes and mortgages were not genuine; or that the allegations of non-payment were false. Final summary judgments of foreclosure were entered on July 5, 2011 ($511,246.10, Unit 812) and July 11, 2011 ($473,306.31, Unit PH-18) providing for public sale on August 8 and 11, 2011, respectively.

On July 18, 2011, Beggi conveyed each of the units to a Florida limited liability company established the same day, and for which Beggi was the sole managing member. Each quitclaim deed featured nominal documentary stamps, also indicative of a related-party transfer. Unit 812 was quitclaimed to “Paloma 1994, LLC,” while Unit PH-18 was quitclaimed to “Magda 1972, LLC.” Each LLC was formed with Beggi’s electronic signature as member, managing member, and registered agent.

Thereafter, Beggi served motions for rehearing and for cancellation of the foreclosure sales in each case. Those motions were denied, and these appeals followed. The foreclosure sales went forward as scheduled in each case, and Ocean Bank was the prevailing bidder. Certificates of title were issued accordingly.

Upon discovering that Beggi had “rem-ised, released, and quitclaimed” to the limited liability companies (non-parties to the actions below and the cases here) all of Beggi’s “right, title, interest, claim and demand” to the condominium units, Ocean Bank moved to dismiss these appeals for lack of standing. Initially the motions were carried with the cases, so that the parties and circuit court could provide a complete record and briefing on the issues. We now address the merits of the motions and Beggi’s responses.

Analysis

At the time the notices of appeal were filed, and also at the time Ocean Bank filed its motions to dismiss, Beggi had no interest in the two condominium units. In Penabad v. A.G. Gladstone Associates, Inc., 823 So.2d 146, 147 (Fla. 3d DCA 2002), we dismissed Ms. Penabad’s appeal after determining that “she had no ownership interest in the subject property because she had executed a quit claim deed transferring her interests to a third party.”

“Standing is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceeding, either directly or indirectly.” Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006). Beggi argues that he will be affected by the disposition of these appeals on the merits because (1) he seeks to overturn the judgment entered against him, (2) he remains personally obligated under the final judgments (by virtue of the liquidation of the amount due under the promissory notes) following his purported conveyance of the mortgaged condominium units, and (3) the transfers did not alter the “damage to [Beggi’s] credit” resulting from the judgments.

We find no merit in any of these contentions, however, because Beggi’s arguments on appeal do not address any specific aspect of the amount due under the promissory note. Beggi does not dispute that he executed the notes and mortgages and that he failed to make payments due under those instruments. His contention that the judgments must be reversed because there is no evidence that documentary stamp taxes were paid on the promissory notes, for example, is frivolous. The companion mortgages in the record exhibit the payment of the stamp taxes as a required incident of recordation; see section 201.08(l)(b), Florida Statutes (2011). Beggi has advanced no legally sufficient basis for reversal of the factual and legal conclusions establishing the amounts due from him under the promissory notes. Moreover, no deficiency judgment has yet been entered. Beggi will be able to oppose the entry of such a judgment if one is sought, and to appeal the judgment if one is entered.

Beggi also urges us to consider purported reassignments by the transferees (the two limited liability companies) of “all rights, responsibilities, and obligations associated with [each condominium unit]” back to Beggi. Apparently these assignments were executed and filed well after Ocean Bank moved to dismiss the appeals, and they have not been recorded (as were the quitclaim deeds from Beggi to the companies) among the public records in conformance with the recording statutes. We decline to take judicial notice of these documents, as they are not part of the record and do not qualify for notice under section 90.202, Florida Statutes (2012).

Finally, Beggi urges us to allow the limited liability company transferees to be substituted in place of Beggi, or to permit the notices of appeal to be amended, so that these appeals may continue. We decline to do so. Beggi did not notify the trial court or this court of the deeds, he did not commence the appeals in the names of the transferees (though the transfers had already been completed when the notices were filed), and he has never apprised the trial court or this court of any legal or business reason for the transfers. Florida Rule of Appellate Procedure 9.040(d) permits amendments that allow disposition of an issue on the merits, but only if that is “in the interest of justice.” These cases are the antithesis of that requirement — it seems clear that Beg-gi transferred the encumbered properties after final judgment and before the scheduled sales in an effort to obstruct and delay the inevitable.

Conclusion

We decline to permit Beggi to turn the mortgage lender’s lawful exercise of its remedies into a game of “keep away,” whereby boilerplate and sweeping requests for production of records, fact-free affirmative defenses, and dilatory tactics are employed to impede the lender. Beggi invested in the condominium units at an inauspicious time and has not weathered the foreclosure storm. His appeals are dismissed, and the cases are removed from the schedule for oral argument.

Appeals dismissed.

      . Later the subject of foreclosure in circuit court case 10-14967, our case 3D11-1977.

      . Later the subject of foreclosure in circuit court case 10-7387, our case 3D11-1978.

      . Ocean Bank filed copies of the recorded quitclaim deeds with its motions to dismiss, and including a request that we take judicial notice of these official records. Beggi concedes here that the documents were executed by him, and concedes further that he has authority on behalf of the transferee limited liability companies to assign the transferees' interests back to Beggi.

      . The legal descriptions also appear to be incomplete. Importantly, these instruments were not prepared by Beggi’s attorneys representing him here or in the circuit court actions.

      . For the sake of completeness, had we ruled upon Beggi’s arguments on appeal on the merits, we would have summarily affirmed under Florida Rule of Appellate Procedure 9.315(a).


author: KHOUZAM, Judge.

text:
    L.C.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2401.
    District Court of Appeal of Florida, Second District.
    June 15, 2012.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

L.C.G., a minor, was charged with aiding escape in violation of section 843.12, Florida Statutes (2010), but was found guilty of resisting an officer without violence in violation of section 843.02. Because resisting an officer without violence is not a necessarily lesser-included offense of aiding escape and the charging document failed to allege the essential elements of resisting an officer without violence, we reverse the order withholding adjudication of delinquency.

L.C.G. was charged with aiding escape after allegedly failing to cooperate with police officers who were pursuing her brother. At trial after the State rested its case, the court granted L.C.G.’s motion to dismiss the charged crime, aiding escape. But over the defense’s objection that it was not a lesser-included offense, the trial court nevertheless found L.C.G. guilty of resisting an officer without violence.

It is generally a denial of due process of law to convict a defendant of an uncharged crime. See Ray v. State, 403 So.2d 956, 959-60 (Fla.1981) (citing Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948)). This also applies in juvenile delinquency proceedings. See N.H.M. v. State, 974 So.2d 484, 485-86 (Fla. 2d DCA 2008) (citing B.S.W. v. State, 668 So.2d 1075, 1075 (Fla. 2d DCA 1996)). A relevant exception to the general rule includes convictions for lesser-included offenses — those which are either necessarily included because their “constituent elements are included within the elements of the greater offense,” or whose “elements are included in the accusatory pleading and sustained by the evidence.” D.L. v. State, 491 So.2d 1243, 1244 (Fla. 2d DCA 1986). But where the issue is preserved, “it is error to convict a defendant of a crime for which he has not been charged and which is not a lesser-included offense of a charged crime.” C.W. v. State, 861 So.2d 1243, 1244 (Fla. 2d DCA 2003).

L.C.G. argues that she was improperly found guilty of an uncharged crime. We agree. Resisting an officer without violence “requires the defendant to resist, obstruct, or oppose an officer in the lawful execution of a legal duty, without offering or doing violence.” Clark v. State, 920 So.2d 634, 636 (Fla. 4th DCA 2005). Conversely, in order to be found guilty of aiding escape a defendant must “knowingly aid[ ] or assistf ] a person in escaping, attempting to escape, or who has escaped, from an officer or person who has or is entitled to the lawful custody of such person.” § 843.12.

In Applewhite v. State, 874 So.2d 1276, 1277 (Fla. 5th DCA 2004), the defendant was charged with and found guilty of escape, in violation of section 944.40, Florida Statutes (2001). On appeal, he argued that he should have received a jury instruction on resisting arrest without violence because it is a necessarily lesser-included offense of escape. Id. at 1278. After examining the elements of each crime, the Fifth District disagreed, concluding that “resisting an officer without violence is not a necessarily lesser-included offense because a defendant can commit the crime of escape 'without resisting, obstructing or opposing an officer.” Id. at 1278-79.

From this holding, it necessarily follows that if a person can commit the crime of aiding escape without resisting, obstructing, or opposing an officer, then the crime of resisting an officer without violence is not a necessarily lesser-included offense of that crime either. It is not difficult to conceive of such a factual scenario. For example, a person could harbor or provide for an escaped prisoner without ever coming in contact with an officer. Consequently, L.C.G. could not have been properly found guilty of resisting an officer without violence as a necessarily lesser-included offense of aiding escape.

The State also argues that, even if resisting an officer is not a necessarily lesser-included offense of aiding escape, the order withholding adjudication should be affirmed because the charging document alleged the essential elements of resisting an officer without violence. We disagree. The elements of resisting an officer without violence are “(1) defendant resisted, obstructed or opposed the victim; (2) at the time the victim was engaged in the execution of legal process or lawful execution of a legal duty; and (3) at the time the victim was an officer.” Apple-white, 874 So.2d at 1278 (citing Fla. Std. Jury Instr. (Crim.) 21.2).

The petition alleged in relevant part that the defendant “did knowingly aid or assist a person ... to escape, or attempt to escape or who has escaped from an officer ... who was entitled to the lawful custody of the [escapee], contrary to Section 843.12, Florida Statutes.” The petition, however, did not allege that L.C.G. interacted with an officer, that she did anything directed at an officer, or that an officer was affected by L.C.G.’s actions in any way. Indeed, the bald statutory language included in the petition described conduct that could occur regardless of whether an officer is even present. Because the charging document failed to allege the first essential element of resisting an officer, L.C.G. could not have been properly found guilty of resisting an officer without violence based on the charging document.

Because resisting an officer without violence is not a necessarily lesser-included offense of aiding escape, and because the charging document failed to allege the first essential element of resisting an officer without violence, we must reverse the order withholding adjudication of delinquency-

Reversed.

CASANUEVA and BLACK, JJ., Concur.

      . See State v. Franchi, 746 So.2d 1126 (Fla. 4th DCA 1999). Although that case dealt primarily with the issue of intent, we mention it only to show that such a factual scenario is plausible.


author: WALLACE, Judge.

text:
    Carmen A. TATE, Appellant, v. Scott R. TATE, Appellee.
    No. 2D11-1811.
    District Court of Appeal of Florida, Second District.
    June 15, 2012.

      Virginia R. Vetter, Tampa, for Appellant.
    Gary E. Williams and Matthew W. Wilson of The Law Firm for Family Law, Clearwater, for Appellee.
   WALLACE, Judge.

Carmen A. Tate (the Wife) appeals the final judgment that dissolved her marriage to Scott R. Tate (the Husband). The Wife raises four issues. She challenges the financial arrangements regarding the parties’ beach condominium unit, various provisions of the equitable distribution scheme, the trial court’s omission to address the prepaid college funds established for the parties’ three minor children, and the calculation of the child support award. There is no cross-appeal. We affirm in part, reverse in part, and remand for further proceedings.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The parties were married in 1999. They had three minor children. The Husband filed a petition for dissolution of marriage on March 81, 2009, and the Wife filed a counterpetition.

At the time of the final hearing, the Husband was employed as an information technology manager for a national company. He earned approximately $8900 per month. The Hillsborough County School Board employed the Wife as a school nurse. She earned approximately $2830 per month.

The parties owned a home in Valrico in Hillsborough County. They also owned a condominium unit located on the beach in Treasure Island in Pinellas County. The parties used the condominium as a rental. Before the dissolution proceeding began, the parties had several investment and deferred compensation accounts. The parties exhausted most of the assets in these accounts during the course of the dissolution proceeding with living expenses, the purchase of a new automobile by the Husband, and the cost of the litigation.

The trial court heard the case over three days in October 2010. In its final judgment, the trial court ordered the parties to observe an alternating weekly time-sharing arrangement for the children. The Husband was obligated to pay the Wife child support of $95 per month. The trial court also ordered the Husband to pay the Wife durational alimony of $1900 per month for a period of ten years.

The trial court ordered the parties to sell the condominium and to divide the net proceeds but directed that the Wife would be responsible for the payment of the mortgage and other expenses of the condominium until it sold. The parties’ remaining assets — -with the exception of prepaid college funds for the children — were equitably distributed. The trial court declined the Wife’s request for the exclusive use of or title to the marital home. Instead, the trial court allocated that asset to the Husband in the equitable distribution scheme, along with the responsibility for payment of the first mortgage and a home equity line of credit.

The Wife filed a motion for rehearing raising numerous issues. The trial court subsequently entered an amended final judgment that addressed matters not pertinent to this appeal and denied the motion in all other respects. The Wife’s appeal followed.

We find no reversible error in the calculation of the child support award. This issue does not warrant further discussion. We do find merit in the other three issues raised by the Wife. We turn now to a discussion of these issues.

II. THE BEACH CONDOMINIUM

The parties owned the condominium located on the beach in Treasure Island as tenants by the entireties. Before the separation, they had used the condominium as a short-term rental unit. The production of income from the condominium was contingent on the parties’ ability to keep it rented to suitable tenants.

The condominium was subject to a mortgage. The monthly payment on the mortgage was initially $1800. The Wife testified — without contradiction by the Husband — that the condominium had never generated a positive cash flow. The parties’ income tax returns for 2008 and 2009 confirmed that the rental of the condominium operated at a loss.

After the parties separated, the Husband lived briefly in the condominium. He soon relocated to a residence closer to the marital home where the Wife continued to reside with the children. After the Husband vacated the condominium, the Wife assumed responsibility for renting it and for paying the mortgage and other expenses of the property. Because the parties had not paid the property taxes for 2009, the holder of the first mortgage required an escrow to cover the taxes. This requirement resulted in an increase in the amount of the monthly mortgage payment from $1800 to $2993.

The amended final judgment included the following provision concerning the condominium:

The condominium owned by the parties ... shall be sold and the net seller’s proceeds shall be divided between the parties. Until the condominium is sold, the Wife shall be responsible for the management and leasing of the condominium .... During the period of time between the Final Judgment and the closing of the sale of the condominium, the Wife shall be solely responsible for the mortgage(s) and for the Home Owner’s Association dues and fees and for all other costs and expenses related to her ownership of the condominium. The Wife will indemnify the Husband against any losses he may suffer as a result of the Wife’s failure to make payment on said mortgage(s) or Home Owner’s assessments.

Thus the trial court did not grant possession of the condominium unit to either of the parties. In effect, the trial court continued the Wife in her role as the manager of the condominium. However, the trial court required the Wife to pay the mortgage and all other expenses of the property pending its sale. Notably, the trial court made no provision for the Wife to receive credits for any shortfall from the net sales proceeds. The Wife argues that this provision is erroneous as a matter of law. We agree.

The trial court erred in requiring the Wife to bear all of the expenses of the condominium pending its sale. Upon the entry of the final judgment of dissolution of marriage, the parties became tenants in common of the condominium. See § 689.15, Fla. Stat. (2010); Johnson v. Johnson, 902 So.2d 241, 243 (Fla. 1st DCA 2005). As we have noted, the trial court did not give either of the parties exclusive possession of the condominium. Under these circumstances, the parties are entitled to their proportionate share of the actual income, less their proportionate share of the expenses until they sell the condominium. See Kelly v. Kelly, 583 So.2d 667, 668 (Fla.1991); Hughes v. Krueger, 67 So.3d 279, 282 (Fla. 5th DCA 2011); Green v. Green, 16 So.3d 298, 300 (Fla. 1st DCA 2009). Upon the sale of property held as a tenancy in common, a party who has paid more than his or her proportionate share of the expenses is entitled to a credit against his or her share of the net proceeds. Kelly, 583 So.2d at 668; McFall v. Trubey, 992 So.2d 867, 869 (Fla. 2d DCA 2008). Accordingly, we reverse the provision in the amended final judgment regarding the disposition of the condominium. On remand, the trial court shall enter an amended final judgment addressing the disposition of the condominium in a manner consistent with this opinion.

III. EQUITABLE DISTRIBUTION ISSUES

The Wife asserted various errors in the equitable distribution scheme fashioned by the trial court. We will address these issues separately.

A. The Credit Cards

On the last day of the three-day final hearing, the parties did not have sufficient time to present their closing arguments. The parties agreed to submit proposed final judgments for the trial court’s consideration in lieu of submitting their closing arguments in written memoranda. Each of the proposed final judgments contained a detailed equitable distribution schedule.

The Wife challenges the trial court’s inclusion of various credit card liabilities in the equitable distribution scheme and the allocation of those liabilities between the parties. However, the trial court’s treatment of these items is substantially in accordance with the equitable distribution schedule included in the Wife’s proposed final judgment. Thus, to the extent that the trial court’s treatment of the credit card liabilities is in error, the Wife invited that error. “It is well settled that under the invited error rule ‘a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she has invited the trial court to make.’ ” Fuller v. Palm Auto Plaza, Inc., 683 So.2d 654, 655 (Fla. 4th DCA 1996) (quoting Gupton v. Village Key & Saw Shop, 656 So.2d 475, 478 (Fla. 1995)). Accordingly, with one exception, we decline to hold that the trial court’s handling of the credit card liabilities in the equitable distribution scheme amounted to reversible error.

We do find reversible error with regard to one item. In the Wife’s proposed final judgment, she listed Capital One account # 0677 for $15,304.25 as the Wife’s liability and Capital One account # 0947 for $19,237.25 as the Husband’s liability. The trial court allocated these items in accordance with the Wife’s proposal: the $15,304.25 item was assigned to the Wife, and the $19,237.25 item was assigned to the Husband. However, Capital One renumbered account # 0677 as account # 0947 in March or April 2010. There was only one account, and this account was in the Wife’s name. The $19,237.25 liability includes the lesser amount. Therefore, the $15,304.25 item assigned to the Wife in the amended final judgment is a duplicate of the $19,237.25 item assigned to the Husband. Although the Wife bears substantial responsibility for causing this error, the trial court must correct it on remand. A trial court cannot properly make an equitable distribution of the same liability twice.

B. The Wife’s Three Chase Bank Accounts

In the amended final judgment, the trial court assigned to the Wife three Chase bank accounts that were titled in the Wife’s name: Chase # 0568 for $4730.39; Chase # 0576 for $6264.30; and Chase # 0584 for $6794.23. The Wife argues that these three accounts were not marital accounts and should not have been included in the equitable distribution. The Wife also asserts that the trial court used incorrect values for these accounts. We agree with the Wife’s second argument, but not with her first.

The equitable distribution schedule in the Wife’s proposed final judgment lists each of these three accounts without any indication that they are the Wife’s non-marital property. Here again, the invited error rule prevents the Wife from complaining on appeal about a ruling that she invited the trial court to make. However, the parties stipulated that the marital assets would be valued as of the date of the final hearing. The undisputed evidence showed that the values for the Chase bank accounts at the date of the final hearing were as follows: Chase # 0568, $1235; Chase # 0576, $1427; and Chase # 0584, $404. The Wife’s proposed equitable distribution schedule used these values. The higher numbers that the trial court used appear to have come from the Husband’s proposal. On remand, the trial court must correct the error in the amounts by substituting the correct values for .these three accounts.

C. The Prefiling Equity Line Advance Received by the Husband

A few days before the Husband filed his petition for dissolution of the marriage, he withdrew a substantial amount from the parties’ home equity line of credit. On December 10, 2009, the trial court entered an order granting a variety of temporary relief to the parties. Paragraph 10 of this order provided: “The Court notes that the Husband previously used $15,000 from the parties’ home equity line of credit and that this was a use of marital funds by the Husband and will be applied to the Husband’s side of the Equitable Distribution Schedule.” This order was never vacated or modified. Nevertheless, the trial court failed to charge the Husband for the $15,000 in the equitable distribution scheme.

The Wife argues that the trial court erred in failing to charge the Husband with the $15,000 in accordance with the pretrial order. In response, the Husband makes two arguments. First, he contends that the trial court acted within its sound discretion by omitting the $15,000 from the equitable distribution schedule because the funds had been depleted. Second, the Husband observes that the Wife did not request the trial court to allocate the $15,000 to him at the final hearing.

We acknowledge that the Wife did not address the issue of the $15,000 either at the final hearing or in the equitable distribution schedule included in her proposed final judgment. The Wife did not raise the issue until she filed her motion for rehearing. However, we conclude that the Wife was entitled to rely at the final hearing on the provision in the pretrial order. The Husband never sought any relief from the provision in the order, and the trial court never vacated or modified it. Moreover, the trial court never informed the parties that it intended to revisit this provision of the pretrial order at the final hearing. Cf. Dent v. Dent, 851 So.2d 819, 822 (Fla. 2d DCA 2003) (Stringer, J., concurring) (“[AJlthough a court is free to reconsider its interlocutory orders [in a proceeding for dissolution of marriage] and the parties do not have a vested interest in the content of the order, the parties must have notice if those issues are to be revisited and an opportunity to be heard in this regard.”). We note that the trial court did not include any explanation in the amended final judgment concerning why it did not rule in accordance with paragraph 10 of the pretrial order. Under these circumstances, we agree with the Wife that the trial court erred in failing to charge the Husband for the $15,000 in accordance with its earlier ruling. On remand, the trial court shall correct this error.

D. The $30,000 “Additional Funds” Allocated to the Wife

In its equitable distribution schedule, the trial court credited the Wife with $30,000 in “Additional Funds” withdrawn from the Wife’s Bank of America checking account # 8677. The trial court did not offer any additional explanation for this entry on the equitable distribution schedule. The Wife asserts that the allocation of these funds to her constitutes error. We agree.

The evidence at the final hearing showed that these funds were no longer in existence at the time of the final hearing. There was no evidence that the Wife had intentionally dissipated the funds, and the trial court made no finding that the dissipation of the funds resulted from intentional misconduct by the Wife. Accordingly, the trial court erred in crediting the Wife with the $30,000 in “additional funds.” See Bishop v. Bishop, 47 So.3d 326, 330 (Fla. 2d DCA 2010) (citing Roth v. Roth, 973 So.2d 580, 584-85 (Fla. 2d DCA 2008)).

E. The Wife’s 2005 Dodge Caravan

The trial court allocated a 2005 Dodge Caravan to the Wife and valued the vehicle at $9000. The Wife challenges this aspect of the equitable distribution scheme for three reasons: (1) the 2005 Dodge Caravan is a nonmarital asset, (2) the vehicle should have been valued at the lesser amount of $5280, and (3) the trial court failed to account for a $7876 loan outstanding against the vehicle.

We note that the Wife listed the 2005 Dodge Caravan on the equitable distribution schedule contained in her proposed final judgment and allocated it to herself. She made no claim that the 2005 Dodge Caravan is her nonmarital property. Thus, to the extent that the trial court erred in treating this vehicle as a nonmari-tal asset, we have another instance of invited error. The Wife cannot complain about this ruling on appeal. We also find no reversible error in the trial court’s valuation of this vehicle. However, the trial court did err in failing to account for the outstanding loan against the vehicle for $7876. On remand, the trial court must correct this error.

F. Regions Bank Preferred Plus Account No. 1273

The trial court allocated this asset to the Husband and valued it as suggested by the Wife in the equitable distribution schedule contained in her proposed final judgment. We find no reversible error in the trial court’s handling of this item.

G.The Award of the Marital Home to the Husband

The trial court awarded the marital home and its accompanying debt to the Husband. The Wife argues that the asserted errors discussed above “substantially skew” the equitable distribution scheme so that on remand the trial court must reconsider the award of the marital home to the Husband. We find no abuse of discretion in the award of the marital home and its accompanying debt to the Husband. However, on remand, the trial court must correct the errors identified above and make any necessary adjustments to the scheme of equitable distribution. Our holding that the trial court did not abuse its discretion in allocating the marital home and its accompanying debt to the Husband does not limit the trial court’s discretion to adjust the equitable distribution scheme as it may deem necessary on remand.

IV. THE PREPAID COLLEGE FUNDS

Several years before the parties separated, they established prepaid college funds for their three minor children. The account statements for the plans that were received in evidence name the Husband as the “account owner,” each child as the “beneficiary” of the plan established in the child’s name, and the Wife as the “surviv- or.” The Husband testified at the final hearing that he was paying the monthly payments necessary to maintain the existing college funds. Nevertheless, the amended final judgment does not address the question of which party shall be the custodian of the funds and the related issue of liability for continuing the payments into the funds.

The parties agree that a remand for the trial court to address these issues is appropriate. Accordingly, on remand, the trial court shall amend the amended final judgment to specify which of the parties is to be the custodian of the funds, the conditions under which the custodian will hold the funds, and the question of liability for continuing the payments into the funds. See Doerr v. Doerr, 751 So.2d 154, 156 (Fla. 2d DCA 2000); Osborne v. Osborne, 680 So.2d 505, 506 (Fla. 1st DCA 1996); Walton v. Walton, 657 So.2d 1214, 1217 (Fla. 4th DCA 1995).

V. CONCLUSION

We reverse the provision in the amended final judgment requiring the Wife to pay the expenses of the condominium pending its sale without contribution from the Husband of his proportionate share of the expenses. We reverse the provisions of the trial court’s equitable distribution scheme as outlined above. We remand for the trial court to address these issues and to adjust the equitable distribution scheme as may be necessary. On remand, the trial court shall also address the issue of the prepaid college funds for the children. In all other respects, we affirm the amended final judgment of dissolution of marriage.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

CRENSHAW and MORRIS, JJ„ Concur.

      . We note that the Wife's appellate counsel did not represent her in the trial court.

      . The amount withdrawn by the Husband was actually $27,500. The Wife’s argument addresses the $15,000 referenced in the trial court’s order.

      . The trial court's omission to address this issue is understandable. Neither of the parties included a provision addressing the prepaid college funds in their proposed final judgments.


author: ALTENBERND, Judge.

text:
    Diane MATHES, n/k/a Diane Kortus, Appellant, v. Mark MATHES, Appellee.
    No. 2D11-298.
    District Court of Appeal of Florida, Second District.
    June 15, 2012.

      Shazia N. Sparkman and Kevin M. Sparkman of Sparkman & Sparkman, P.A., Tampa, for Appellant.
    W. Todd Smith of Pratico & Smith, Wesley Chapel, for Appellee.
   ALTENBERND, Judge.

This is an appeal from the final judgment in a bifurcated divorce proceeding. In a partial final judgment entered prior to the final judgment that is challenged in this appeal, the trial court dissolved the marriage of Diane and Mark Mathes. We reverse the final judgment.

Diane and Mark Mathes not only were husband and wife, but they were also the owners, officers, and employees of a Florida corporation, Manatee Media, Inc. The Wife owned 51% of the stock in this corporation, and the Husband owned 49% of the stock. As the marriage became irretrievably broken, so did the business.

Unfortunately, the attorneys failed to understand the basic difference between the family’s marital assets and those of the separate Florida corporation. The trial court proceeding was infected from inception by an improper petition for dissolution of marriage filed by Sparkman and Spark-man, P.A., on behalf of the Wife.

Section IV of the Wife’s petition alleged relief for “joint business.” It explained that the business was a corporation owned by the couple. The Wife’s attorneys suggested that the Wife’s shares of stock in the business should be sold as part of the equitable distribution. Clearly, the trial court had authority to value and distribute the stock of this corporation as a marital asset.

But the Wife’s attorneys sought far more than a valuation of this asset. They asked the trial court to establish the Wife as the corporate officer in charge of the daily operations of the “joint business,” to set corporate salaries for the Husband and Wife during the pendency of the divorce, and otherwise to involve itself in the management of this separate Florida corporation. This facial error in the petition was compounded by the answer and counter-petition filed on behalf of the Husband by W. Todd Smith, who failed to point out that the court had no jurisdiction over the corporation.

As a result, by the time the trial court entered • the final judgment, this divorce had transformed into something similar to a receivership pursuant to section 607.1432, Florida Statutes (2008). In the final judgment, the trial court explains that it had previously removed the Husband as editor of the corporation’s main publication and had placed the Wife in charge of the “company.” The court set corporate salaries, ordered disbursements from the corporation, ordered the corporation sold, and appointed an attorney to represent the corporation — all without jurisdiction over the corporation and without notice to creditors who might be affected.

At first, the scope of this error was not obvious to this court because the two law firms filed briefs in this court including the corporation in the style of the proceeding, thereby implying that the corporation was a party to the lower court proceeding. When this court received no briefing from an attorney representing the corporation, we investigated the file and observed that the briefs had not been served on any attorney for the corporation. Further examination of the record suggested that, although the corporation was often listed as a respondent in the style of the case in the trial court filings and in the partial final judgment dissolving the marriage, the corporation was not and never had been a party to the proceeding. Thus, we issued an order directing the parties to explain whether the trial court had jurisdiction over the corporation and, if not, how the court would have had any power to order the corporation to take the steps that were ordered. We further inquired as to whether the parties would be willing to mediate what appeared to be a very difficult situation.

The parties’ attorneys responded admitting that the corporation was not a party to the proceeding. The Husband’s attorney directed our attention to Loidl v. I & E Group, Inc., 927 So.2d 1016 (Fla. 2d DCA 2006), and admitted that he doubted the trial court had the authority to order the corporation to take many of the steps ordered in the final judgment. Because the parties appeared to be willing to mediate this matter and we did not wish to humiliate the attorneys with an opinion reflecting the magnitude of the errors in this proceeding, we entered an order compelling the parties to mediate the matter before Judge John Lenderman, a recently retired circuit court judge whose experience and expertise in complex dissolution proceedings we anticipated would assist the parties in restructuring an agreement that might avoid a reversal of this final judgment.

Near the expiration of the period designated for this mediation, this court received a notice of impasse from mediator Joseph C. Hood. Mr. Hood is a reputable attorney, and we have no reason to believe that he knew we had ordered mediation before Judge Lenderman. The attorneys who represent the parties in this case did not file any motion to modify this court’s order to mediate before Judge Lender-man, and their actions would appear to be a willful violation of that order.

The record in this appeal contains two supplements and is more than 3000 pages in length. The briefing does not cite extensively to this record and often relies upon the partial final judgment and final judgment as proof of certain facts. We have struggled to understand this case from the record.

The final judgment does not value or equitably distribute the stock of Manatee Media, Inc. Instead, it orders a sale of Manatee Media, Inc., and “all businesses” owned by the Husband and Wife. The final judgment contains a finding that this business is worth $908,000, based on a valuation by someone named Larry Grimes. Our record has an affidavit and a letter from him in which he values “Community News Publications” at $908,000. Mr. Grimes’ valuation reflects that the business lost $173,000 in 2008 and earned only $23,253 in 2009. The Wife’s proposed equitable distribution worksheet, filed in July 2010, values the corporation at $908.00, which appears to be a typographical error. Assuming that she valued the business at $908,000, she also listed “Manatee Media Debt” at $831,232, indicating a net value of approximately $75,000.

There are other indications in the record that the corporation had significant debts. The Wife maintains that the corporation faced imminent bankruptcy at the time the petition was filed. The Husband argues that the corporation had a “negative net equity” of $439,975. Uncertified accounting reports suggest that the business was operating with monthly losses when the dissolution proceeding was filed. We cannot divine the truth from this record, but it appears possible that the stock of this corporation at the commencement of the proceeding had little or no value.

Given the uncertain condition of the corporation and its disputed but extensive debts, one would think the attorneys representing the parties would have cautiously handled any liquid assets attributable to the corporation. Nevertheless, the final judgment recites that the Wife paid Spark-man and Sparkman $79,000 in attorney’s fees from corporate funds. It further recites that the Wife used in excess of $175,000 in corporate funds to pay professional fees “predominately in the support of her position in the litigation.”

Not to be outdone, the Husband’s attorney, according to the final judgment, arranged for his fees to be paid by “barter.” He wanted free advertising for his law firm in publications by Manatee Media, Inc. When the Wife refused to abide by this bartered arrangement, the trial court decided that the Husband’s attorney’s fees should be funded by the proceeds from the sale of the corporation.

We have no individual tax returns for the parties in this record. It appears that this corporation had elected S corporation status for purposes of federal taxation. But the parties and their attorneys seem to have acted as if its subchapter S status allowed them to treat this separate Florida corporation like a family piggy bank whose content could be raided in the night for any personal expense. To the extent that the final judgment appears to approve expenditures by or distributions to these parties from corporate assets that might affect the rights of the corporation’s debtors, including the Internal Revenue Service (“IRS”), we emphasize that the judgment is not and never has been binding on the corporation.

The final judgment adopts by reference an order that appointed attorney G. Michael McKenzie to represent the corporation primarily as the attorney to negotiate the sale of Manatee Media, Inc. Mr. McKenzie was ordered to take various actions. Most significantly, he was ordered to make a long list of payments from the sale of the corporation. We are not certain if the trial court believed that these payments should be made in the order of the list, but that list repays loans to the Husband and other members of the Mathes and Kortus families before it orders payments to the IRS and creditors that appear to have secured interests.

Simply put, without jurisdiction over the corporation the trial court had no authority to appoint any attorney for this corporation to take any action. It is at least conceivable that the trial court might have had the power to order the Husband and Wife, as the owners of the stock, to vote in a meeting of the corporation to take these steps, but that is not what was ordered in this case. The order appointing Mr. McKenzie would appear to be a nullity, an order void from its inception.

This proceeding needs to be retried as a divorce proceeding. What steps may be required to repair the damage caused by this improper and unauthorized corporate receivership are unknown to this court and are probably matters that will need to be resolved in other legal proceedings.

We reverse the judgment on appeal in its entirety. The motions for attorneys’ fees filed by both parties are denied.

Reversed and remanded.

WHATLEY and CRENSHAW, JJ., Concur.

      . The final judgment described Manatee Media, Inc., as the "party's [sic] largest marital asset” and stated that it "produces a cluster of free weekly newspapers.” Other business names are mentioned in this record, including Community News Publications. It appears likely that the other businesses are operating units of some sort within Manatee Media, Inc., but the parties in this appeal have not explained to this court the legal relationship between Manatee Media, Inc., and the other businesses.

      . In fairness to Judge Babb, we observe that a different judge initially handled this case and Judge Babb came into the case after it had been pending for a significant period of time. Numerous pleadings and documents in the trial court identify Manatee Media, Inc., as a respondent in the style of the case. Those pleadings are simply wrong. They were filed without certificates of service on any attorney for a corporation. The erroneous case styles suggest that the parties never disclosed to Judge Babb that they were asking for relief that exceeded the court’s jurisdiction in the dissolution of marriage case.

      . The record provided to this court contains four volumes consisting of more than 800 pages that are described by the clerk of the trial court as “MISCELLANEOUS DOCUMENTS (EXHIBITS NOT ENTERED INTO EVIDENCE).” There is no issue concerning the admissibility of any evidence, and we are uncertain why the parties paid to include these documents in our record.

      . The final judgment does not identify these "other businesses,” and it is difficult from this record to ascertain what legal entities the trial court might have ordered sold other than Manatee Media, Inc.

      . By this, we assume that one or both owners had obtained distributions from this corporation well in excess of its equity. It is not clear from this record whether the owners were maintaining a proper level of risk in the corporation.

      .Our record includes Schedule K-ls prepared on "Form 1120S” that were provided to each of the parties designating each shareholder’s share of then-current-year income, deductions, credits, and other items. Sub-chapter S corporations report corporate income, losses, deductions, and credits to the Internal Revenue Service using Form 1120-S. See 26 C.F.R. § 1.6012-2(h) (2007). See also 26 U.S.C. § 6037 (2007).

      . To avoid any confusion, we emphasize that the reversal of this final judgment does not affect the partial final judgment dissolving the parties' marriage.


text:
    Matthew PIRIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1960.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.
    Rehearing Denied July 23, 2012.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Matthew Pirie, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm in all respects but remand this cause with instructions that the lower court correct the judgment to reflect that Appellant’s conviction is based on section 847.0135(4)(b), Florida Statutes, rather than section 847.0135(4)(a), Florida Statutes.

AFFIRMED and REMANDED.

SAWAYA, PALMER and TORPY, JJ„ concur.


text:
    Juanita ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2882.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.
    Rehearing and Rehearing En Banc Denied July 20, 2012.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that an issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

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


text:
    Thomas J. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1629.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2012.
    Thomas J. Brooks, Punta Gorda, pro se.

      No appearance required by appellee.
   PER CURIAM.

Thomas J. Brooks appeals the denial of his motion seeking additional jail credit, which he filed pursuant to Florida Rule of Criminal Procedure 8.800(a). Brooks sought credit against his prison sentence for time spent in jail in Georgia following the transmission of a warrant there, prior to his being transported to Florida. We affirm without prejudice.

Brooks filed the instant motion in Bro-ward County circuit court case numbers 07-23195 and 08-5908, in which he originally was sentenced to a prison term followed by probation. Following the revocation of his probation, he was sentenced in both cases, concurrently, to a new prison sentence, with credit for 441 days of county jail time (as well as credit for all time previously served in prison). In his motion, he claimed he had been incarcerated in the Cook County Jail in Adel, Georgia, from December 16, 2009, to April 5, 2010, and requested additional jail time credit from December 19, 2009 (the date of the warrant was transmitted to that jail based on the charges in this case), through April 5, 2010, when he was transported to Bro-ward County, Florida, a total of 107 days, which the trial court did not allow when it sentenced him.

The state’s response confirmed that the 441 days of credit included time Brooks spent in jail prior to his initial prison term, plus the period from April 6, 2010, when he was returned from Georgia, through July 15, 2010, the date of sentencing, another 101 days. It acknowledged that a trial judge has discretion to award credit for time served in other jurisdictions while awaiting transfer to Florida, e.g., Kronz v. State, 462 So.2d 450 (Fla.1985); Martin v. State, 796 So.2d 1271 (Fla. 4th DCA 2001), but it recommended the trial court exercise its discretion to deny Brooks credit for the time he served in Georgia because he had not demonstrated that he was held there solely on the Florida warrant. See Tribble v. State, 958 So.2d 543 (Fla. 4th DCA 2007) (affirming denial of motion for additional jail time credit; defendant clearly was not entitled to jail credit for time spent incarcerated in another state because records demonstrated he was incarcerated there on unrelated charges).

A claim that a defendant is entitled to out-of-state jail credit is not cognizable in a rule 3.800(a) motion; such a claim must be raised either on direct appeal or in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of trial counsel. Lake v. State, 72 So.3d 234 (Fla. 4th DCA 2011), and cases cited therein; Wombaugh v. State, 25 So.3d 707 (Fla. 2d DCA 2010).

Although Brooks’s motion was filed within the time for filing a timely rule 3.850 motion, it was not under oath, he did not allege that trial counsel was ineffective in failing to request that the trial court award out-of-state jail credit, and he did not allege that he was held in Georgia solely on the warrant in this case. Our affirmance therefore is without prejudice to any right he may have to file a facially sufficient rule 3.850 motion making those allegations under oath, if he can do so in good faith. Because the two-year time limit of rule 3.850(b) expired while this appeal was pending, Brooks shall have sixty days from the date of the mandate in this ease in which to file such a motion, and the postconviction court shall consider the motion timely filed.

Affirmed without prejudice.

STEVENSON, GROSS and HAZOURI, JJ., concur.


author: DAMOORGIAN J.

text:
    Eric A. SIMON, Appellant, v. Janie Noble SIMON, Appellee.
    No. 4D12-558.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    See 83 So.3d 927.
    A. Matthew Miller of Boies, Schiller & Flexner LLP, Hollywood, for appellant.
    Lee Milich of Lee Milich, P.A., Fort Lauderdale, for appellee.
   DAMOORGIAN J.

Eric A. Simon (“Husband”) appeals from an order on his “Motion for Order Prohibiting Wife [Janie Noble Simon] From Removing Personal Property From Marital Home And Requiring Wife To Return Personal Property Removed.” We reverse, concluding that the trial court erred by failing to enforce the parties’ Premarital Agreement and amendments thereto (collectively “Agreement”) with respect to certain artwork removed from the marital home by Wife.

This appeal arises out of a dissolution proceeding between Husband and Wife. Relevant to this appeal is a post-nuptial amendment to Paragraph 18 of the parties’ Premarital Agreement. The amendment provided in part that upon dissolution of marriage:

The parties shall each be entitled to retain any artwork owned by them prior to the marriage. Any artwork acquired during the marriage shall be divided between the parties. In the event the parties are unable to agree as to the division of such artwork, same shall be divided by the parties each selecting pieces, alternatively one piece at a time, with [Wife] having the right to the first selection, until all of the artwork has been selected.

(emphasis added).

While dissolution proceedings were pending, Husband filed the aforementioned motion regarding the parties’ personal property. The motion alleged inter alia that upon visiting the marital home Husband observed that Wife had removed virtually all of the artwork the parties acquired during their marriage and some of the artwork acquired by Husband prior to the marriage, in violation of the Agreement. The motion explained that Wife was only entitled to remove artwork that she acquired prior to the marriage of the parties, and one-half of any artwork acquired during the marriage, after being selected by the parties on a piece-by-piece basis. The trial court conducted an evi-dentiary hearing on the motion.

It is undisputed that the Agreement is valid and that Wife sold pieces of artwork which were subject to the amended version of Paragraph 18 of the Agreement. Wife presented testimony in support of her argument that she was justified in doing so. Husband submitted evidence to the contrary, supporting his argument that Wife breached the Agreement by selling the art. Following the hearing, the trial court entered its order, which provided in pertinent part:

4. As to the artwork acquired during the marriage, the Court finds that certain of such artwork is located and remains in the parties’ Snow-mass home, and certain of such artwork was in the Boca Raton home of the parties and has been removed by Mrs. Simon. The testimony given at the hearing was conflicting (he said, she said). In listening to the testimony of the parties, this Court finds the issue of the artwork to be a wash. Mrs. Simon is to keep the artwork acquired after the marriage that she removed from the Boca Ra-ton home and Mr. Simon is to keep the artwork in the Snowmass home. The artwork division is now complete.
NOW, THEREFORE, IT IS ORDERED AND ADJUDGED as follows:
2. The artwork that Mr. Simon acquired prior to the marriage of the parties, together with his personal effects, his clothing, and so forth, shall be returned to him as agreed to by the parties.
4. Mr. Simon shall be entitled to the artwork that was acquired by the parties during their marriage which is in the parties’ Snowmass home. Mrs. Simon shall be entitled to the artwork that was acquired by the parties during their marriage which was in their Boca Raton home and which she has removed from such home. The artwork division is now complete.

Husband filed a motion for reconsideration, which was denied. The motion asserted that the trial court’s order had deviated from the specific procedure for division of artwork contained in the Agreement. This appeal follows.

On appeal, Husband similarly contends that the trial court erred by dividing the art based on location, instead of according to the terms of the Agreement. We agree.

A postnuptial agreement is subject to interpretation like any other contract. See, e.g., Bakos v. Bakos, 950 So.2d 1257, 1259-60 (Fla. 2d DCA 2007). “The trial court’s interpretation of a contract is a matter of law subject to a de novo standard of review.” See Chipman v. Chipman, 975 So.2d 603, 607 (Fla. 4th DCA 2008).

The trial court’s order ignored the clear and unambiguous language in the Agreement regarding the division of the artwork. As recently summarized by this court in Continental Florida Materials v. Kusherman, 91 So.3d 159 (Fla. 4th DCA 2012):

“In construing a contract, [we] should consider its plain language and take care not to give the contract any meaning beyond that expressed. When the language is clear and unambiguous, it must be construed to mean ‘just what the language therein implies and nothing more.’ ” Walker v. State Farm, Fire & Cas. Co., 758 So.2d 1161, 1162 (Fla. 4th DCA 2000) (quoting Walgreen Co. v. Habitat Dev. Corp., 655 So.2d 164, 165 (Fla. 3d DCA 1995)) (internal citation omitted). And “ ‘[we are] not empowered to rewrite a clear and unambiguous provision, nor should [we] attempt to make an otherwise valid contract more reasonable for one of the parties.’ ” Rodriguez v. Builders Firstsource-Florida, LLC, 26 So.3d 679, 682 (Fla. 4th DCA 2010) (quoting N. Am. Van Lines v. Collyer, 616 So.2d 177, 179 (Fla. 5th DCA 1993)).

Id. at 164.

The Agreement could not be clearer. It provided for the manner by which the parties were to divide their artwork obtained during the marriage. The artwork should have been divided accordingly. The parties are entitled to all of the advantages and disadvantages of their Agreement. As such, we reverse and remand for further proceedings consistent with this opinion. Our reversal is without prejudice for the parties to seek alternative remedies in the event specific performance is unavailable.

Reversed and Remanded.

WARNER and CONNER, JJ., concur.


text:
    Anthony HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4066.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Rehearing Denied July 27, 2012.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse appellant’s conviction for burglary of a conveyance. The trial court committed per se reversible error when the court, relying on concerns over appellant’s mental health, denied appellant’s unequivocal requests to represent himself without conducting any Faretta inquiry, even though the court previously determined at a competency hearing that appellant was malingering his symptoms of mental health issues and the record evidence does not support the conclusion that appellant suffered from a severe mental illness.

To be sure, the United States Constitution permits judges to insist upon representation by counsel for those competent enough to stand trial, but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. See Indiana v. Edwards, 554 U.S. 164, 177, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008); see also Fla. R.Crim. P. 3.111(d)(3) (2009) (the trial court shall not deny a defendant’s unequivocal request to represent himself “if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself’). However, in this case, there was no record evidence that appellant suffered from severe mental illness, as the mental health experts who evaluated appellant opined that he was malingering and that there was no reason to believe he was mentally ill. Because the record evidence does not support the conclusion that appellant suffered from a severe mental illness, the Edwards exception to the constitutional right of self-representation does not apply-

In sum, we conclude that the trial court erred in failing to hold a Faretta inquiry when appellant unequivocally requested to represent himself after the competency hearing. See McCray v. State, 71 So.3d 848, 864 (Fla.2011) (although a trial court’s decision on a defendant’s request for self-representation is generally reviewed for an abuse of discretion, a trial court’s failure to take the preliminary step of holding a hearing on a defendant’s unequivocal pro se request results in per se reversible error). Consequently, we must reverse and remand for a new trial.

Reversed and Remanded.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.

      . The underlying facts of the prosecution's case included allegations that appellant committed a battery against his wife in connection with the burglary. However, we reject appellant's argument that the presiding trial judge, Judge Cohen, should have disqualified himself from this case because of his previous membership in the Women in Distress Judicial and Legal Council, an organization dedicated to assisting victims of domestic violence. Appellant's motion for disqualification did not allege that Judge Cohen had a personal bias against him, and Judge Cohen's prior membership in the Women in Distress organization is not, without more, a legally sufficient ground for disqualification. See Rodgers v. State, 948 So.2d 655, 672-73 (Fla.2006) (holding that fact that trial judge was a prominent speaker at a Domestic Violence Council Meeting and spoke strongly against domestic violence was not a legally sufficient ground to support disqualification of judge from sentencing defendant to death for the murder of defendant's wife). A trial judge’s “alleged desire to solve the problem of domestic violence is not a legally sufficient basis for his disqualification.” Id. at 673.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Of course, if the trial court had permitted appellant to represent himself and if appellant had deliberately engaged in serious and obstructionist misconduct, the trial court would have been free to terminate self-representation. See Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525.


author: WARNER, J.

text:
    John W. MILLER and Charlene M. Miller, Appellants, v. KONDAUR CAPITAL CORPORATION, Appellee.
    No. 4D11-918.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Garry W. Johnson and Bruce K. Herman of 511 Law, P.A., Fort Lauderdale, for appellants.
    Jerrold J. Golson of Florida Foreclosure Attorneys, PLLC, Clearwater, for appel-lee.
   WARNER, J.

We affirm the order denying appellants’ motion for relief from final judgment of foreclosure. Appellants claim lack of standing. We have held, however, that standing may not be raised in a motion for relief from final judgment where no affirmative defense of lack of standing was raised in the original proceeding raising the issue. See, e.g., Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893, 895 (Fla. 4th DCA 2012); Beaulieu v. JPMorgan Chase Bank Nat’l Ass’n, 80 So.3d 365 (Fla. 4th DCA 2012). Nevertheless, in this case the complaint was filed by the original payee and mortgagee, who assigned its interest in the note and mortgage to the appellee during the suit, substituting appellee as the party plaintiff. Thus, appellee stands in the shoes of the original plaintiff/mortgagee.

In addition, appellants claim that the note was not properly indorsed, so appellee could not show it was the holder of the note entitled to enforce it. Although the original note was not indorsed, the record shows that both the mortgage and note were assigned to appellee by the original payee by recorded assignment, and the original note was filed with the court. As such, appellee became a non-holder in possession of the instrument, entitled to enforce it. See § 673.3011(2), Fla. Stat. (2011); Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618, 622 (Fla. 5th DCA 2010).

Appellants point to a copy of the note filed in the proceedings which appears to have an endorsement on it, even though the original note filed in these proceedings has no endorsement. Although this copy of the note may be false and could be grounds for disciplinary action, it does not affect the determination of the substantive issues in the case.

Affirmed.

STEVENSON and GROSS, JJ., concur.


author: SUAREZ, J.

text:
    Eddie TURNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-830.
    District Court of Appeal of Florida, Third District.
    June 20, 2012.

      Eddie Turner, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   SUAREZ, J.

Eddie Turner appeals from the denial of his petition to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm.

Of the three prior felony offenses that the State proffered as predicate offenses for habitual offender sentencing, only the felony littering conviction qualifies under the habitual offender statute. § 775.084(l)(a), Fla. Stat. (2011). The statute governing violation of the Florida Litter Law, section 403.413, Florida Statutes (2008), does not authorize a habitual offender sentence enhancement under section 775.084. The omission of section 775.084 penalties from section 403.413 pertains, however, only to the offense of felony littering then before the court for sentencing. See McFadden v. State, 732 So.2d 335, 337 (Fla. 1st DCA 1998), approved, 737 So.2d 1073 (Fla.1999). The offense for which the defendant is currently convicted is manslaughter, not felony littering. Accordingly, the third degree felony littering conviction, occurring within five years of the date of the current manslaughter offense, was properly used as a qualifying prior offense for purposes of habitual offender sentencing. Id. Cf. Hope v. State, 751 So.2d 657 (Fla. 4th DCA 1999) (finding that enhanced sentencing was improperly applied to an offense that did not statutorily provide for habitual offender sentencing under section 775.084); Berch v. State, 691 So.2d 1148 (Fla. 3d DCA 1997) (same).

Affirmed.

      . The trial court may impose a habitual offender sentence if the defendant had previously been convicted of two or more felonies, and the felony under consideration was committed within five years of either the conviction date or the date of release from incarceration or supervision imposed as a result of the prior felony. The habitual offender statute "requires only that a defendant's last prior felony (or release from imprisonment) ... be within five years of the date of the current felony offense.” Middleton v. State, 721 So.2d 792, 792 (Fla. 3d DCA 1998) (citing to Clark v. State, 681 So.2d 816 (Fla. 5th DCA 1996)); Gutieirez v. State, 854 So.2d 218 (Fla. 3d DCA 2003) (holding that five-year time period described in the habitual offender statute applies only to the most recent predicate felony).

      . The remaining two, third-degree felony convictions proffered by the State as requisite predicate offenses fall outside of the five-year capture window for applying the habitual offender statute.