author: THOMAS, Judge.

text:
    Jennifer Plott BURKHALTER v. Charles Randall BURKHALTER.
    2101140.
    Court of Civil Appeals of Alabama.
    June 1, 2012.
    Stephen M. Langham, Prattville, for appellant.
    J. Robert Faulk of McDowell, Faulk & McDowell, L.L.C., Prattville, for appellee.
   THOMAS, Judge.

Jennifer Plott Burkhalter (“the wife”) appeals from a judgment of the Autauga Circuit Court divorcing her from Charles Randall Burkhalter (“the husband”) and dividing the parties’ marital property. We dismiss the appeal as being from a nonfinal judgment.

The parties were married on August 7, 2004. On May 14, 2010, the husband filed an action seeking a divorce from the wife and an equitable division of the marital assets. The wife filed an answer to the husband’s complaint and counterpetitioned for a divorce. On May 19, 2010, the trial court entered a “standing pendente lite” order requiring that the parties “coordinate the payment of fixed monthly expenses,” among other things.

On August 17, 2010, the wife filed a motion for contempt alleging that the husband had failed to abide by the trial court’s standing pendente lite order regarding the payment of monthly expenses. The husband responded to the wife’s contempt motion, stating that it was moot. On December 30, 2010, the wife filed a motion for attorney fees and expenses. On March 11, 2011, the wife filed a second motion for contempt against the husband. The trial court entered an order setting a hearing on the wife’s second contempt motion for May 3, 2011. On May 1, 2011, the wife filed a motion with the trial court styled as “wife’s summary of husband’s contempt of pendente lite order,” in which she specifically stated each incident of the husband’s alleged violations of the trial court’s standing pendente lite order.

On May 3, 2011, the trial court heard ore tenus testimony regarding the divorce petitions, the wife’s motion seeking attorney fees and costs, and the wife’s contempt motions. The trial court entered a judgment divorcing the parties, dividing the marital property, and denying the wife’s request for attorney fees and expenses on May 17, 2011; however, the judgment failed to dispose of the wife’s motions for contempt. On June 1, 2011, the wife filed a motion to alter, amend, or vacate. The husband filed a motion for contempt against the wife on June 13, 2011, alleging that she had removed items of personal property from the marital home that the trial court had awarded to him in its judgment. The trial court denied the wife’s postjudgment motion on July 27, 2011. The wife timely appealed to this court.

On appeal, the wife argues that the trial court erred in dividing the parties’ marital property and in failing to award her alimony. However, we must first determine whether this court has jurisdiction to consider this appeal.

“This court has appellate jurisdiction over appeals from judgments that are final. § 12-22-2, Ala.Code 1975.” Perry v. Perry, 92 So.3d 799, 800 (Ala.Civ.App.2012). “‘[T]he question whether a judgment is final is a jurisdictional question.’ Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala.Civ.App.2002). ‘A final judgment is one that disposes of all the claims and controversies between the parties.’ Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004).” Decker v. Decker, 984 So.2d 1216, 1219 (Ala.Civ.App.2007).

It is well settled that “a trial court’s failure to rule on a contempt motion relating to an interlocutory order would render any subsequent judgment nonfinal because the filing of the contempt motion would not be considered as having initiated a separate proceeding.” Decker v. Decker, 984 So.2d at 1220; see Perry, 92 So.3d at 800 (dismissing the wife’s appeal as being from a nonfinal judgment because the trial court had failed to rule on the wife’s contempt motion regarding the husband’s failure to abide by the trial court’s status quo order); Logan v. Logan, 40 So.3d 721, 723 (Ala.Civ.App.2009) (same). In this case, the wife filed two motions for contempt against the husband for his alleged failure to abide by the standing pen-dente lite order. Thus, the trial court’s failure to dispose of the wife’s contempt motions renders the trial court’s judgment nonfinal, and we must dismiss the wife’s appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . Although the husband s June 13, 2011, contempt motion would have initiated a separate and independent action had it been filed after a final judgment of divorce was entered, see Wilcoxen v. Wilcoxen, 907 So.2d 447, 449 n. 1 (Ala.Civ.App.2005), and Decker, 984 So.2d at 1219-20, the husband’s June 13, 2011, contempt motion did not initiate a separate and independent proceeding because, as we determined above, the trial court’s divorce judgment was not final. Accordingly, the trial court must rule on all pending contempt motions filed by the husband and the wife in order to enter a final judgment of divorce.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Lindsey MITCHELL v. John Brent THORNLEY, as administrator ad litem for the estate of Fred Webb.
    2101127.
    Court of Civil Appeals of Alabama.
    June 1, 2012.

      Justin L. Jones of King, Wiley & Williams, Jasper, for appellant.
    Ralph D. Gaines III and Travis G. McKay, Jr., of Gaines, Gault, Hendrix & Bishop, P.C., Birmingham, for appellee.
   BRYAN, Judge.

This action arises from a three-car automobile accident occurring on September 27, 2005, involving Lindsey Mitchell, Fred Webb, and Crystal Fields Day. In May 2007, Webb died from causes unrelated to the automobile accident. On September 21, 2007, Mitchell filed a complaint against Webb and Day, alleging claims of “negligence and/or wantonness.” When Mitchell attempted to have Webb served, the summons and complaint were returned with a notification that Webb was deceased. Although Webb died before Mitchell filed her complaint, Mitchell’s claims survived against Webb’s personal representative. See Nelson v. Estate of Frederick, 855 So.2d 1043, 1047 (Ala.2003) (“Personal-injury claims upon which no action has been filed survive against the personal representative of a deceased tortfeasor, so long as the claim is not of an equitable nature. § 6-5-462, Ala.Code 1975.”). On April 13, 2009, more than a year and a half after filing the complaint, Mitchell filed a motion in the trial court to appoint an administrator ad litem for Webb’s estate “to serve as the personal representative” of Webb’s estate “for purposes of this lawsuit.” On October 19, 2009, the trial court appointed John Brent Thornley as the administrator ad litem of Webb’s estate.

Thornley, as the administrator ad litem of Webb’s estate, moved for a summary judgment, asserting, among other things, that Mitchell’s action is barred by the applicable statute of limitations. Mitchell filed a response to Thornley’s summary-judgment motion, asserting that her action is not time-barred. On March 8, 2011, the trial court entered a summary judgment in Thornley’s favor, concluding that Mitchell’s claims are time-barred. The trial court appears to have applied a two-year limitations period to both the negligence claim and the wantonness claim.

Mitchell appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975. Because Mitchell’s claims against Day remained pending in the trial court and the trial court had not certified the summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., the summary judgment was not a final, appealable judgment. See Edmonds Indus. Coatings, Inc. v. Lolley, 863 So.2d 1121, 1122 (Ala.Civ.App.2003) (stating that an appeal ordinarily lies only from a final judgment and that a judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided). Thus, we reinvested the trial court with jurisdiction for 14 days for that court either to certify the summary judgment as a final judgment under Rule 54(b) or to adjudicate the claims against Day. The trial court subsequently certified the summary judgment as a final judgment under Rule 54(b). This appeal does not concern the claims against Day.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth, 749 So.2d 425 (Ala.1999).... In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.

Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003).

Initially, we address whether Thornley, the administrator ad litem of Webb’s estate, was actually made a defendant in this case. As noted, Webb, the alleged tortfea-sor, died before Mitchell commenced this action. Any personal-injury claims that Mitchell may have had against Webb survived against Webb’s personal representative. Mitchell moved the trial court to appoint an administrator ad litem to serve as the personal representative in this case, and the trial court appointed Thornley in that capacity. However, Mitchell never amended her complaint to add Thornley, the proper party in interest, as a defendant.

Thornley argues that Mitchell was required to amend her complaint to add Thornley as a defendant after the trial court appointed him as administrator ad litem. Thornley contends that Webb remains the nominal defendant. Thus, Thornley contends, with respect to Mitchell’s claims concerning Webb, there is no proper defendant in this case. Conversely, Mitchell argues that, when the trial court appointed Thornley as administrator ad litem, he was automatically made a defendant in this case. Thus, Mitchell contends, she was not required to amend her complaint to add Thornley as a defendant.

Thornley was appointed administrator ad litem pursuant to § 43-2-250, Ala.Code 1975, which provides:

“When, in any proceeding in any court, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he is interested adversely thereto, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case or shall be made known to the court by the affidavit of any person interested therein.”

No Alabama case appears to have squarely addressed whether the appointment of an administrator ad litem automatically makes that person a party or whether the complaint must be amended to add the administrator ad litem as a party. However, Loving v. Wilson, 494 So.2d 68 (Ala.1986), is informative on this issue. In Loving, the plaintiffs filed a complaint seeking a sale of property and a division of the proceeds. During the proceedings, the plaintiffs unsuccessfully moved the trial court to appoint an administrator ad litem for the estates of James Wilson, one of the named defendants, and Robert Wilson, who had allegedly devised in his will a part of the property to be sold. 494 So.2d at 69. The supreme court concluded that the trial court erred by failing to appoint an administrator ad litem for the two estates. 494 So.2d at 70. Citing § 43-2-250, the court in Loving also observed that “[t]he appointment of administrators ad litem by the court would have joined the two estates as parties to the action.” Id. Thus, Loving indicates that a trial court’s appointing an administrator ad litem under § 43-2-250 automatically makes the administrator ad litem a party.

This conclusion is supported by the text of § 43-2-250, which requires a trial court to appoint an administrator ad litem if the estate of a deceased person must be represented in “the particular proceeding.” Because the trial court must appoint an administrator ad litem for certain proceedings, it would seem unnecessary to also require the filing of an amendment to the complaint to add the administrator ad li-tem as a party in such proceedings. Requiring such an amendment would essentially make the trial court’s appointment ineffective until an amendment is made. When the trial court appointed Thornley as administrator ad litem on October 19, 2009, Thornley automatically replaced Webb as the proper defendant in this case.

We next address Mitchell’s argument that the trial court erred in concluding that her negligence claim is time-barred. A negligence claim is subject to a two-year limitations period. § 6-2-38(£), Ala.Code 1975; and Booker v. United American Ins. Co., 700 So.2d 1333, 1339 (Ala.1997). However, in this case, the limitations period for the negligence claim was tolled for an additional six months under § 6-2-14, Ala.Code 1975. Section 6-2-14 provides: “The time between the death of a person and the grant of letters testamentary or of administration, not exceeding six months, is not to be taken as any part of the time limited for the commencement of actions by or against his executors or administrators.” Our supreme court has interpreted this section to mean that the running of the limitations period is tolled for a period up to, but not exceeding, six months to allow the personal representative to sue or be sued in the decedent’s name. Nelson, 855 So.2d at 1047. See also Sanders v. Martin, 662 So.2d 241, 245 (AIa.1995); Jones v. Blanton, 644 So.2d 882, 887 (Ala.1994); and Edwards v. Vanzant, 492 So.2d 990, 992 (Ala.1986). Because there were no letters testamentary or administration granted after Webb’s death, the limitations period for the negligence claim was tolled for six months.

Mitchell’s cause of action accrued on September 27, 2005, when she allegedly suffered injuries in the automobile accident. See Nelson, 855 So.2d at 1047 (“A cause of action accrues when a party suffers an injury or loss or damage entitling him or her to maintain an action.”). Tolling the limitations period for six months under § 6-2-14, the limitations period for the negligence claim expired on March 27, 2008, two and one-half years after the accident of September 27, 2005. As noted, although Mitchell named Webb, a deceased person, as a defendant, the proper defendant is actually Webb’s representative. Thus, Mitchell had until March 27, 2008, to file a negligence claim against Webb’s personal representative. See Nelson, 855 So.2d at 1047-48. Because there was no personal representative, Mitchell petitioned the court to appoint an administrator to serve in that capacity. However, Mitchell did not petition the trial court to appoint an administrator ad litem until April 13, 2009, well after the limitations period for negligence had expired on March 27, 2008. The trial court appointed Thornley as administrator ad litem on October 19, 2009, making Thornley a defendant on that date, well after the limitations period for the negligence claim had expired.

Mitchell argues, as she did before the trial court, that she may use fictitious-party practice to avoid the bar of the statute of limitations for her negligence claim. Rules 9(h) and 15(c)(4), Ala. R. Civ. P., “ ‘allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted.’ ” Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 597 (Ala.2005) (quoting Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995)). Rule 9(h) provides:

“When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

Rule 15(c)(4) states: “An amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).”

In her complaint, Mitchell, in addition to naming Webb as a defendant, designated a fictitiously named defendant described as “that person, firm, corporation, or other entity or successor in interest who or which jointly, separately, wantonly, and/or wrongfully caused or contributed [to Mitchell’s] injuries ... made the basis of this lawsuit.” Mitchell maintains that Thornley, as Webb’s administrator ad li-tem, is Webb’s “successor in interest” designated as a fictitiously named defendant in the complaint. Thus, Mitchell argues that, when Thornley was appointed administrator ad litem, Thornley was substituted for the fictitiously named defendant in the complaint. Therefore, Mitchell argues that the negligence claim against Thornley relates back to the original complaint and that the claim is not barred by the statute of limitations.

Fictitious-party practice does not apply to the situation in this case. Mitchell’s attempt to relate back Thornley’s appointment to the filing of the complaint actually concerns the separate relation-back practice of Rule 15(c)(3), Ala. R. Civ. P., not the fictitious-party practice of Rules 9(h) and 15(c)(4).

“Unlike some, if not indeed most, jurisdictions, Alabama has two alternative kinds of relation back of amendments as to parties. One is the ordinary, unpred-icated kind of relation back [provided for in Rule 15(c)(3) ] and familiar to the attorneys of perhaps every other jurisdiction. The other is, from the national point of view, a perhaps less familiar kind of relation back. Known as ‘fictitious party practice’ or ‘Doe practice,’ it is predicated upon the allegation of fictitious names in the pre-bar pleading[, ie., pleading filed before the statute of limitations has run,] which a party now wishes to amend. Rule 15(c) addresses both kinds of relation back, but the requirements for changing parties and the requirements for substituting fictitious parties ... are quite different. Thus, an amendment which changes a party under Rule 15(c)(3) relates back only if the requirements of that provision are satisfied, while an amendment which substitutes a true name for a fictitious name under Rule 15(c)(4) relates back only when the requirements of Rule 9(h) are satisfied.”

Jerome A. Hoffman, Alabama Civil Procedure § 4.26 (3d ed.2008).

The Committee Comments on the 1973 Adoption of Rule 15, Ala. R. Civ. P, indicate that the provisions of Rule 15(c)(3) “permitn an amendment to relate back which substitutes the real party in interest for a named plaintiff.” (Emphasis added.) Such an amendment, which changes a named party, relates back only if the requirements of Rule 15(c)(3) are met. Conversely, an amendment merely substituting a real party for a fictitiously named party relates back if the provisions of Rule 9(h) are satisfied. Committee Comments on 1973 Adoption.

In her complaint, Mitchell named Webb, a deceased person, as a defendant in this case; however, the proper defendant was Webb’s representative, not Webb. Nelson, 855 So.2d at 1047. To correct that situation, Mitchell requested that the trial court appoint an administrator ad litem, and Thornley was appointed as administrator ad litem to replace Webb as the defendant in this case. Thornley was substituted for Webb, not for a fictitiously named defendant to be sued in addition to Webb. Thus, the relation-back practice of Rule 15(c)(3), not fictitious-party practice, controls this case.

This case is procedurally analogous to Sanders v. Martin, 662 So.2d 241 (Ala.1995). In Sanders, the plaintiff, Martin, was involved in an automobile accident with Elkins. 662 So.2d at 242. Martin sued Elkins, alleging claims of negligence and wantonness, and Martin sued Elkins’s father, alleging claims of negligent and wanton entrustment. However, similar to this ease, Elkins had died before the complaint was filed. Sanders was eventually appointed administrator of Elkins’s estate. 662 So.2d at 243. As to the claims filed against the deceased Elkins, Martin did not attempt to amend his complaint to name a proper defendant until after the expiration of the period allowed by the statute of limitations. The issue in Sanders was whether that amendment related back to the original filing of the complaint so as to avoid the bar of the statute of limitations. 662 So.2d at 242.

In Sanders, as in this case, a proper party needed to be substituted for a named defendant who was deceased when the complaint was filed. The supreme court examined whether such an amendment to the complaint, filed after the running of the limitations period, would relate back to the filing of the original complaint. Our supreme court stated:

“Rule 15(c)[, Ala. R. Civ. P.,] states:

‘“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading except as may be otherwise provided in Rule 13(c). An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.’
“Under the facts of this case, there can be no relation back, because the administrator of Elkins’s estate, ... Sanders, was not appointed until after the statutory limitations period had run and, therefore, could not have had knowledge of Martin’s complaint until after the limitations period had run.”

662 So.2d at 243 (emphasis added).

The text of Rule 15(c) was amended following Sanders; the above-emphasized portion of the rule upon which the court in Sanders relied is substantially similar to the current Rule 15(c)(3). Similar to Sanders, Thornley — the proper defendant to take the place of Webb — was not appointed to represent Webb’s estate until after the limitations period had run. Thus, as in Sanders, there can be no relation back to the filing of the complaint. The trial court correctly concluded that Mitchell’s negligence claim is barred by the statute of limitations.

However, we come to a different conclusion regarding Mitchell’s wantonness claim. Recently, our supreme court clarified that a wantonness claim is subject to a two-year limitations period, overruling a previous supreme court case that had indicated that a six-year period applies. Ex parte Capstone Bldg. Corp., 96 So.3d 77 (Ala.2012). However, because the supreme court in Ex parte Capstone Building Corp. applied its decision prospectively, the six-year limitations period applies to Mitchell’s wantonness claim. Mitchell’s cause of action for her wantonness claim accrued on September 27, 2005, when she allegedly suffered injuries in the automobile accident. Nelson, 855 So.2d at 1047. On October 19, 2009, well within the six-year limitations period then applicable, the trial court appointed Thornley as the administrator ad litem. At that time, Thornley became a defendant in this case. Because the wantonness claim was commenced against Thornley, the proper defendant, within the six-year limitations period that must be applied to Mitchell’s claim under Ex parte Capstone Building Corp., the trial court erred in concluding that the wantonness claims is time-barred.

We affirm the summary judgment as to the negligence claim. We reverse the summary judgment as to the wantonness claim, and we remand the case.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . Rule 15(c) currently provides, in pertinent part:
      "(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when

      "(3) the amendment, other than one naming a party under the party’s true name after having been initially sued under a fictitious name, changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party...."


author: PITTMAN, Judge.

text:
    Latonya MYLES v. SCREENTECH, INC., et al.
    2101050.
    Court of Civil Appeals of Alabama.
    June 1, 2012.

      Tiffany Johnson Cole and Robert Simms Thompson of Law Offices of Robert Simms Thompson, PC, Tuskegee, for appellant.
    R. Larry Bradford and Evan P. Baggett of Johnstone, Adams, Bailey, Gordon & Harris, LLC, Birmingham, for appellees.
   PITTMAN, Judge.

Latonya Myles appeals from a summary judgment entered by the Houston Circuit Court in favor of Screentech, Inc., Terry Collins, and Randall Williams (hereinafter referred to collectively as “the Screentech defendants”).

In November 2010, Myles filed a lawsuit asserting claims of abuse of process, malicious prosecution, false imprisonment, and the tort of outrage against Screentech, Inc. Screentech answered Myles’s complaint in December 2010. In February 2011, Myles filed an amended complaint naming Collins and Williams as additional defendants and asserting the same claims against them that she had asserted against Screentech. In May 2011, the Screentech defendants filed a motion for a summary judgment, to which Myles responded in opposition. Following a hearing on that motion, the trial court entered a summary judgment as to all claims in favor of the Screentech defendants.

The record reveals the following facts. Screentech is a screen-printing business owned by Collins and Williams. In January 2009, Myles entered into a business relationship with Screentech. At that time, Myles stated, she operated a nonprofit organization called “Milk and Honey Multicultural” and placed an order for 1,000 t-shirts that the organization planned to sell at the presidential inauguration. The order totaled $4,000. Upon placing the order, Myles stated that she would not be able to pay the entire balance owed, but she asked if she could pay a portion of that balance and receive 100 t-shirts to sell at an event before the time she needed all 1,000 t-shirts. The next day, Myles went to Screentech’s place of business and paid a $300 deposit and gave Screentech the artwork for the t-shirts. The parties did not enter into a written contract at that time; however, Myles provided a post office box number, a telephone number, and a federal tax-identification number for the organization. Myles also provided a physical address for the organization. Approximately one week later, Myles picked up the first 100 t-shirts she had requested; however, Screentech had gone ahead and issued 300 t-shirts to her, leaving 700 t-shirts to complete the order. Two days after picking up the 300 t-shirts, Myles picked up 1,000 t-shirts; Myles claimed that she had telephoned Screentech when she realized that she had initially picked up 300 t-shirts, rather than 100 t-shirts, and that Screentech had agreed to give her the 300 t-shirts for free, making her outstanding balance at that point $3,700.

On the other hand, Screentech treated the additional 1,000 shirts as a second order.

As of April 1, 2009, the organization had an outstanding balance of $4,056 with Screentech, and, after the account was 90 days overdue, Screentech began attempting to contact Myles and the organization at the telephone number and addresses Myles had previously provided. Neither Myles nor any other representative of the organization responded to any of Screen-tech’s attempts to contact them, not even to a certified letter that was confirmed to have been delivered to the physical address provided by Myles. All communication sent to the organization at that time informed it that its account was in default.

Because its attempts to contact Myles and/or the organization had been unsuccessful, Collins instructed a Screentech employee to perform an Internet search regarding the organization to see if they could retrieve additional information regarding the organization or, possibly, about a representative of the organization other than Myles. The search produced information about another nonprofit organization, also named Milk and Honey, headquartered in Florida. Believing that organization to be the same organization as Myles’s, Screentech contacted that organization and was told that Myles was not employed there. Thereafter, Collins contacted the Houston County District Attorney’s Office and informed the district attorney that Screentech had not been able to locate correct contact information on its customer, who had claimed to be a nonprofit organization. The district attorney advised Collins to file a police report, which he did.

Screentech filed a police report on April 22, 2009. At that time, Screentech gave investigators its file on the “Milk and Honey Multicultural” account and a copy of a letter it had sent Myles questioning the status of her organization. In summary, it is undisputed that Screentech told investigators that Myles had not paid for the t-shirts she had ordered on behalf of an organization called “Milk and Honey Multicultural,” which she claimed was a nonprofit organization; that Screentech had received no response from its attempts to contact Myles with the contact information she had provided; that Screentech had searched for additional contact information and, in doing so, had located an entity also named “Milk and Honey” in Pensacola, which had informed Screentech that Myles was not employed by that entity; and that there was no agreement with Myles to pay for the t-shirts at a later date. An independent investigation of Myles subsequently revealed that she had previously used approximately six different aliases, two different Social Security numbers, and had given multiple addresses as her own.

Myles was charged with and convicted of first-degree theft of property on December 10, 2009. Williams testified during that trial regarding his dealings with Myles. That conviction was thereafter set aside in April 2010. Myles was again indicted for first-degree theft. Screentech took no part in that investigation or trial. The case was eventually settled with the district attorney’s office.

On appeal, Myles asserts that the trial court erred in entering a summary judgment in favor of the Screentech defendants because, she asserts, genuine issues of material fact exist regarding her claims of abuse of process, malicious prosecution, false imprisonment, and the tort of outrage.

It is well settled that an appellate court reviews a summary judgment de novo, using the same standard applied by the trial court. Neal v. Sem Ray, Inc., 68 So.3d 194, 196 (Ala.Civ.App.2011). Under Rule 56(c), Ala. R. Civ. P., we must review the evidence to determine whether the movant established that no genuine issue of material fact existed, thereby entitling the mov-ant to a judgment as a matter of law. If the movant makes that showing, the non-movant thereafter bears the burden to adduce “substantial evidence” to rebut the movant’s contention that there is no genuine issue of material fact. Bass v. South-Trust Bank of Baldwin Cnty., 538 So.2d 794, 797-98 (Ala.1989). “[Sjubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). We apply the de novo standard of review to each issue raised in the present appeal.

We begin by discussing Myles’s claim of abuse of process. To establish a prima facie case of abuse of process, the evidence must show that an ulterior purpose motivated the use of process, that the use of process was wrongful, and that the defendant acted with malice. Moon v. Pillion, 2 So.3d 842, 846 (Ala.2008). Myles contends that the evidence she presented is sufficient to establish a prima facie case as to her abuse-of-process claim. First, she argues that Screentech was improperly motivated to initiate Myles’s prosecution by its desire to collect the debt owed to it, which, she claims, was its ulterior purpose. In support of her argument, Myles relies on Shoney’s, Inc. v. Barnett, 773 So.2d 1015 (Ala.Civ.App.1999), in which we explained:

“Abuse of process has been defined as ‘the malicious perversion of a regularly issued process to accomplish a purpose whereby a result not lawfully or properly obtainable under it is secured.’ Duncan v. Kent, 370 So.2d 288, 290 (Ala.1979). As our supreme court has explained, a defendant cannot be liable for the tort of abuse of process “[i]f the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint.” ’ Duncan, 370 So.2d at 290 (quoting 1 Am.Jur.2d Abuse of Process, § 13 (1962)). However, liability attaches ‘ “if the suit is brought, not to recover on the cause of action stated in the complaint, but for a collateral purpose.” ’ Id.”

Shoney’s, 773 So.2d at 1025.

In particular, in her brief, Myles points to our reference in Shoney’s, used for illustrative purposes, to a debt-collection scenario where a potentially viable abuse-of-process claim might arise, stating that anyone who initiates prosecution to collect a debt abuses process. However, in Sho-ney’s, we stated that it would be an abuse of process for a creditor to garnish (thereby, use the judicial process) a debtor’s exempt wages in order to coerce the debt- or into paying his or her balance. We thereafter summarized that “ ‘if a defendant prosecutes an innocent plaintiff for a crime without reasonable grounds to believe him guilty, it is malicious prosecution; if he prosecutes him with such grounds to extort payment of a debt, it is abuse of process.’ ” Shoney’s, 773 So.2d at 1025 (quoting William L. Prosser, Handbook of the Law of Torts, § 121, at 857 (4th ed.1971)).

We reject Myles’s argument that the fact that Screentech wanted to collect a debt from Myles satisfied the ulterior-purpose element of the tort of abuse of process. Screentech went to the authorities after it was unable to contact Myles with the contact information she had provided. Upon learning about an organization with a similar name as Myles’s organization and being told that it was not affiliated in any way with Myles, Screen-tech became skeptical and raised its concerns to the authorities. Although Screentech wanted to collect its debt, it was legitimately concerned that Myles’s suspected unlawful behavior would prevent it from achieving that end; Screen-tech, thus, went to the authorities to report its suspicions of Myles’s unlawful behavior. The situation presented here is not one in which Screentech chose to utilize the authorities to collect its debt without reasonably believing that Myles had committed a crime.

Additionally, Myles argues that Screen-tech’s statement that it was not a part of the second grand-jury proceedings initiated with regard to Myles because it had been paid by that point is evidence indicating that Screentech “knew that a crime had not been committed.” The fact that Screentech felt unconnected, even indifferent, to the second round of criminal proceedings against Myles does not speak to whether it was genuinely suspicious of potentially unlawful behavior when the police report was filed. Moreover, Myles contends that the fact that Screentech treated her as it customarily does its other customers demonstrates that Screentech went to the authorities after its traditional collection methods had failed. That is precisely what Screentech claimed to have done, but Myles’s argument ignores the undisputed fact that Screentech had been unsuccessful in its collection efforts because it had either been given incorrect contact information or was being ignored by Myles. That fact, coupled with the undisputed fact that Screentech learned about another nonprofit organization with a similar name as Myles’s organization and was informed that Myles was not affiliated with that entity, gave the Screentech defendants a reasonable basis to be concerned that illegal activity may have occurred such that they would be prevented altogether from collecting the debt owed to Screentech. They did not resort to legal process after their traditional collection processes had failed (as is contended by Myles); rather, they approached the authorities once they became concerned that they had been the victims of fraud, rendering their traditional collection methods ineffective.

Myles argues that she presented sufficient evidence to establish wrongful use of process by presenting evidence of the information Screentech retrieved on the Pensacola organization with a similar name as Myles’s organization. Myles argues that, because she had .given Screen-tech correct contact information that was different from the contact information listed for the Pensacola organization, the Screentech defendants knew that the Pensacola organization was a separate entity; she asserts that their representation to authorities that they were concerned about the propriety of the representations Myles had made to them about her business, in part, because the Pensacola organization had said Myles was not affiliated with them, fraudulently aided the government in obtaining an indictment. We reject this argument. Although the contact information that Myles gave Screentech may have been accurate, Screentech was unsuccessful in contacting Myles through those means. Even if Screentech did not believe Myles had abandoned those locations and telephone numbers, Screentech had no reason to immediately dismiss the information it had discounted about the Pensacola organization and Myles’s nonaffiliation with that organization. Unfortunately, businesses have been defrauded by purported entities operating without authorization under the name of a real business entity; at the time Screentech contacted the Pensacola organization, it had no reason to give credence to the contact information provided by Myles because that information had not enabled Screentech to contact her. The fact that the information retrieved as a result of the Internet search regarding the' Pensacola organization, which information caused Screentech to become concerned that it had been defrauded, differed from the contact information Myles had previously provided Screentech does not support the assertion that the Screentech defendants fraudulently aided the prosecution of Myles’s. Because the record does not reveal evidence indicative of wrongful use of process, we conclude that Myles did not present evidence sufficient to make a prima facie showing of the elements of abuse of process.

Next, Myles argues that she presented evidence sufficient to establish a claim of malicious prosecution. To successfully make a prima facie case of malicious prosecution, it is necessary for the claimant to present substantial evidence indicating that the opposing party lacked probable cause. Favorite Market Store v. Waldrop, 924 So.2d 719, 722 (Ala.Civ.App.2005). Probable cause ‘“as the term is employed in actions for malicious prosecution is such a state of facts in the mind of the prosecutor that would lead a man of ordinary caution or prudence to believe or entertain an honest or strong suspicion that the person arrested is guilty.’ ” Harris v. Harris, 542 So.2d 284, 286 (Ala.Civ.App.1989) (quoting National Sec. Fire & Casualty Co. v. Bowen, 447 So.2d 133, 139 (Ala.1983)).

Although the issue of probable cause should be heard by a jury when material facts are in dispute, Harris, 542 So.2d at 286, the material facts are not in dispute here. Myles asserts that Screen-tech did not have reason to believe that it had been defrauded by Myles because it “recognized” that the Pensacola organization was unrelated to Myles yet filed a criminal complaint anyway. In support of that statement, Myles refers to the cross-examination of Collins during his deposition, where he was asked about the listing that had been retrieved regarding the Pensacola organization. Collins did not testify during this deposition that he was aware that the Pensacola organization was unrelated to Myles’s organization; Myles’s statement is, thus, without merit.

According to Myles, the only reason that Screentech went to the authorities was because it wanted to collect a debt. Again, Myles fails to consider that the undisputed facts of this case show that Screentech not only wanted to collect a debt, but that it also felt as though it was being deceived because Myles had not responded to any of its correspondence, giving Screentech no reason to believe that Myles could be located and was willing to pay the debt owed to Screentech. Even if, as Myles argues, Screentech did not run a search of the tax-identification number that Myles had provided, Screentech’s failure to do so does not translate into knowledge that “Milk and Honey Multicultural” was different from the organization in Pensacola; it does not lessen the evidence indicating that Screentech was suspicious that it had been defrauded. Myles further asserts that Screentech lacked probable cause based on its familiarity with using civil process to collect on a debt. Specifically, Myles points to the fact that Screentech had other delinquent accounts at the time it initiated the criminal process in this matter. Again, Myles’s argument fails; the fact that initiating criminal proceedings was something Screentech had never done before weakens Myles’s argument that Screentech resorted to the criminal process simply because using civil process to collect the debt had fail. Myles does not account for the reasons why the traditional process of collecting a debt had failed Screentech and the reasonable inferences Screentech was led to as a result of Myles’s failure to respond to its collection efforts. Because substantial evidence of a lack of probable cause was not presented, a prima facie case of malicious prosecution was not established.

Next, we address Myles’s claim of false imprisonment. Under Ala.Code 1975, § 6-5-170, false imprisonment is the unlawful detention of someone wherein that person is deprived of personal liberty. A person who reports a suspicion that another person may be guilty of a crime cannot be liable for false imprisonment unless that person has acted in bad faith, without “ ‘reasonable cause to believe’ ” that the accused is guilty of the crime. Crown Cent. Petroleum Corp. v. Williams, 679 So.2d 651, 655 (Ala.1996) (quoting Caldwell v. Standard Oil Co., 220 Ala. 227, 229, 124 So. 512, 513 (1929)). For the same reasons that Myles did not establish a prima facie case that Screentech lacked probable cause to file a criminal complaint against Myles, Myles has failed to produce substantial evidence indicating that Screentech acted in bad faith and without a reasonable belief that Myles had committed a crime.

Finally, we address Myles’s assertion that she presented substantial evidence to support a claim of the tort of outrage. For Myles to be correct, she must have demonstrated that Screentech’s actions were “so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980). Nevertheless, if probable cause is demonstrated, “[o]ne cannot be held liable where he has done no more than insist upon his legal rights in a permissible way.” McDuff v. Turner, 679 So.2d 1071, 1075 (Ala.Civ.App.1996). As we have discussed, the Screentech defendants had probable cause to file a criminal complaint against Myles, and, thus, its having done so cannot serve as a basis to hold them liable for the tort of outrage.

Because Myles did not present substantial evidence to establish a prima facie case as to her claims, the trial court did not err in entering a summary judgment in favor of the Screentech defendants.

AFFIRMED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . In her brief, Myles presented her argument as follows: "The Shoney’s court stated that if a defendant prosecutes someone ‘with such grounds to extort payment of a debt it is abuse of process.' [Shoney’s, 773 So.2d] at 1025.” Myles has use of the quoted language out of context, and, thus, her assertion is an incorrect statement of law.

      . Although she does not assert this argument in her brief, Myles avers in her statement of facts that the Screentech defendants reported their suspicions regarding Myles even though they knew, at that time, that the organization in Pensacola was not the same organization Myles had claimed to represent. As evidence supporting that contention, Myles references two Internet database searches identifying "Milk and Honey Multicultural” as a legitimate nonprofit organization. That evidence in no way translates into evidence that Screentech had received confirmation that "Milk and Honey Multicultural” was legitimate, much less evidence that Screentech had no reason to believe it was being deceived by Myles; the contact information it had received from Myles had, at that point, not assisted Screentech in contacting Myles or the organization that she purported to represent.


author: LaROSE, Judge.

text:
    Anton REITERER, Rudolf Reiterer, and Waltraud Reiterer, Appellants, v. Alexandra MONTEIL, Attorneys Title Insurance Fund, Inc., and Network Title of Florida, LLC, Appellees.
    No. 2D10-5912.
    District Court of Appeal of Florida, Second District.
    March 7, 2012.
    Brett C. Powell and P. Brandon Perkins of The Powell Law Firm, P.A., Palmetto Bay, for Appellants.

      Michael F. Kayusa, Fort Myers, for Ap-pellees.
   LaROSE, Judge.

Anton, Rudolf, and Waltraud Reiterer appeal a final judgment awarding attorney’s fees to Alexandra Monteil in her lawsuit against the Reiterers for nondisclosure of liens on real property they sold to her. We reverse.

The Reiterers conveyed the property to Ms. Monteil through a warranty deed. Ms. Montiel purchased title insurance from Network Title of Florida, LLC, underwritten by Attorneys Title Insurance Fund, Inc. Two undisclosed sewer assessment liens of the Lee County Utilities Division encumbered the property. Later learning of the liens, Ms. Montiel sued Network Title, Attorneys Title, and the Reiterers for breach of warranty deed, damages, and attorney’s fees and costs. Attorneys Title satisfied the liens, and then filed a successful cross-claim against the Reiterers to recover its payment and attorney’s fees. Our record reflects no attempt by Ms. Montiel to recover her attorney’s fees from the title companies.

Ms. Monteil sought summary judgment against the Reiterers to recover her attorney’s fees. The purchase/sale contract between Ms. Monteil and the Reiterers did not provide for prevailing party attorney’s fees. To the contrary, it called for binding arbitration, with each party, generally, to pay his or her own attorney’s fees. Fees could be awarded only to a party who successfully sued to enforce an arbitration award. At an initial stage of the lawsuit, the Reiterers moved to compel arbitration. The trial court denied the motion, finding that they had waived arbitration by participating in the litigation.

The trial court referred Ms. Mon-teil’s summary judgment motion to a general master. He recommended an award of fees and costs against the Reiterers. The general master concluded that a prevailing covenantee could recover fees from a covenantor who breached the covenant against encumbrances. The trial court adopted the recommendation and awarded attorney’s fees and costs to Ms. Monteil. Florida law supports no such award.

Florida adheres to the American Rule: “attorney’s fees may be awarded by a court only when authorized by statute or by agreement of the parties.” State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993). Absent such authorization, generally, a litigant pays for his or her own fees in a lawsuit. Pepper’s Steel & Alloys, Inc. v. United States, 850 So.2d 462, 465 (Fla.2003) (citing Palma, 629 So.2d at 832). We hesitate to create exceptions to this rule. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1148 (Fla.1985) (explaining that Florida has recognized only limited exceptions to the American Rule). Regardless, Ms. Monteil urges us to allow fees when a covenantee sues a covenantor to remove encumbrances. She principally relies on Gore v. General Properties Corp., 149 Fla. 690, 6 So.2d 837 (1942). In Gore, the purchaser sued the seller for breach of warranty; the seller failed to convey clear title because of a third-party encumbrance. Id. at 838. As part of his damages, the purchaser sought attorney’s fees he incurred in a separate suit against the third party to quiet title to the property. Id. at 839. The supreme court agreed, holding that the measure of damages for breach of the covenant against encumbrances should include the reasonable “amount paid or the costs necessarily incurred to remove, the encumbrance....” Id. at 841.

Williams v. Azar, 47 So.2d 624, 627 (Fla.1950), is to the same effect. There, the supreme court held that a purchaser could recover from the seller attorney’s fees expended in an ejectment action against third parties to secure possession of real property held adversely to the seller. Id; accord, Nelson v. Growers Ford Tractor Co., 282 So.2d 664, 666 (Fla. 4th DCA 1973) (“[WJhere the grantee is required to sue to obtain possession against one holding adversely to the grantor, a proper recovery is the taxable costs and reasonable attorneys’ fees expended by the grantee in securing possession.”). It seems clear that a covenantee may recover attorney’s fees incurred in a suit to maintain or defend title against a third party occasioned by the covenantor’s breach of covenant. Tibbetts v. Nichols, 578 So.2d 17, 19 (Fla. 1st DCA 1991); Needle v. Lowenberg, 421 So.2d 678, 680 (Fla. 4th DCA 1982) (allowing buyer’s attorney’s fees from seller where breach of covenant against encumbrances forced buyer to defend against third-party action to foreclose on undisclosed judgment lien); see B.W.B. Corp. v. Muscare, 349 So.2d 183, 185 (Fla. 3d DCA 1977) (allowing attorney’s fees from seller for buyers’ quiet title action against third party holding unrecorded outstanding purchase contract).

This principle — specific to covenan-tees — invokes the more general “wrongful act doctrine,” a narrow exception to the rule that attorney’s fees are recoverable only when authorized by statute or contract. See City of Tallahassee v. Blankenship & Lee, 736 So.2d 29, 30 (Fla. 1st DCA 1999). “[WJhere the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interest, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.” Robbins v. McGrath, 955 So.2d 633, 634 (Fla. 1st DCA 2007) (quoting Northamerican Van Lines, Inc. v. Roper, 429 So.2d 750, 752 (Fla. 1st DCA 1983)); see also De Pantosa Saenz v. Rigau & Rigau, P.A., 549 So.2d 682, 686 (Fla. 2d DCA 1989) (stating real property seller could recover from her attorney legal costs incurred in her suit against purported purchaser if she could establish that attorney’s wrongful act in selling property for her at price below her minimum caused the litigation) (citing State Farm Fire & Cas. Co. v. Pritcher, 546 So.2d 1060 (Fla. 3d DCA 1989); Martha A. Gottfried, Inc. v. Amster, 511 So.2d 595 (Fla. 4th DCA 1987)).

The Reiterers maintain that an award of attorney’s fees against the covenantor is allowed only for fees incurred in the buyer’s action against a third party to remove the encumbrance. Skipper v. McMillan, 349 So.2d 808, 809 (Fla. 1st DCA 1977), supports this view. Although Florida case law allows a purchaser to recover from the seller her attorney’s fees incurred in a suit against a third party in a separate action to remove an encumbrance, the First District was “unable to find any cases which allow the assessment of costs and attorney’s fees in a primary action brought by the covenantee against the covenantor for breach of covenants.” Id. Consequently, the First District affirmed the denial of the covenantee’s attorney’s fees in a direct action against the covenantor. Id.

The First District clarified Skipper in Tibbetts, 578 So.2d at 19. There, it held that a covenantee can recover attorney’s fees for a quiet-title action against a third party even where that claim is joined in a lawsuit against the covenantor. The First District explained as follows:

Although this rule is typically applied to permit recovery when an attorney’s services are rendered in a separate action, it appears from our review of the pertinent authorities that the circumstance justifying such an award is the necessity of entering into litigation against a third party, and not whether the action is separate or part of the lawsuit against the covenantor.

Id. As did the First District in Skipper, we hold that Ms. Monteil cannot recover fees she incurred in her direct action against the Reiterers. But, Ms. Monteil also sued the title companies. We must assess whether any fees she incurred in suing Network Title and Attorneys Title are recoverable from the Reiterers.

The Florida cases awarding attorney’s fees that covenantees incurred in actions against third parties involve third parties claiming adverse interests in the property. See Williams, 47 So.2d at 627 (ejectment action against adverse owners of part of property); Gore, 6 So.2d at 838-39 (quiet-title action against holder of inchoate right of dower); Tibbetts, 578 So.2d at 19 (declaratory action against third-party leaseholder); Needle, 421 So.2d at 680 (defense against foreclosure by third-party holder of judgment lien); B.W.B., 349 So.2d at 185 (quiet-title action against third party holding unrecorded outstanding purchase contract). The title companies claimed no such interest. Rather, they were Ms. Montiel’s insurers of clear title.

The holdings of these cases allowing for fees are narrow. They carve out but a slight exception to the American Rule when a party incurs fees in maintaining or defending title against an adverse party. Ms. Montiel has presented no convincing argument that we should expand the application of those holdings.

In sum, we find no Florida case suggesting that we should allow the buyer to recover attorney’s fees incurred in a direct action against the seller breaching the covenant against incumbrances. Nor do we see the claims against the title companies as actions against third parties holding adverse interests to property for which Florida courts have allowed an exception to the American Rule. We decline Ms. Montiel’s invitation to whittle away further at the American Rule.

Reversed.

KHOUZAM and MORRIS, JJ., Concur.


author: RECKSIEDLER, J.J., Associate Judge.

text:
    CITY OF ORLANDO and Lasercraft, Inc., Appellants, v. Michael UDOWYCHENKO, etc., Appellee.
    No. 5D11-720.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.

      David B. King and Thomas A. Zehnder of King, Blackwell, Downs & Zehnder, P.A., Orlando, for Appellant City of Orlando.
    Charles T. Wells, Richard E. Mitchell and Michael D. Porter of Gray-Robinson, P.A., Orlando, for Appellant Lasercraft, Inc.

      Jason D. Weisser of Schuler, Halvorson, Weisser & Zoeller, P.A., and Bard D. Rockenbach and Andrew A. Harris, of Burlington & Rockenbach, P.A., West Palm Beach, for Appellee.
   RECKSIEDLER, J.J., Associate Judge.

The City of Orlando and Lasercraft, Inc., appeal a final judgment in favor of Michael Udowyehenko that invalidated the City’s red light camera ordinance as preempted by state law. This court affirms the lower court’s decision and certifies conflict with the decision made by the Third District Court of Appeal in City of Aventura v. Masone, 89 So.3d 233 (Fla. 3d DCA 2011) (motion for rehearing, motion for rehearing en banc, and request for certified question denied March 6, 2012).

On December 17, 2007, the City enacted its “Red Light Infractions” ordinance adopting Section 1, Article III of its city code and installed automatic cameras at specific intersections within city limits to photograph vehicles running red lights. According to the ordinance, if a vehicle is videotaped running a red light, an infraction is issued to the owner, wherein the owner is required to pay the fine for the infraction or file an appeal. If timely appealed, a hearing is set.

On May 23, 2009, Udowychenko’s vehicle was recorded running a red light at the intersection of Conroy and Vineland Roads in Orlando. Upon a code enforcement officer viewing the video and confirming ownership of the vehicle, Udowyehenko was issued a notice of infraction pursuant to the ordinance. Udowyehenko appealed and attended a hearing before a hearing officer on August 20, 2009. Udowyehenko declined to offer any testimony at the hearing; a compliance officer testified to the violation. Udowyehenko moved to dismiss because the City failed to establish that the vehicle in the video was owned by him or under his care, custody, or control at the time of the infraction. The hearing officer denied Udowychenko’s motion, found Udowyehenko guilty of the offense, and ordered him to pay $155 ($125 fine and $30 administrative fee).

On August 31, 2009, Udowyehenko filed suit against the City and Lasercraft, the Georgia corporation that installed the red light system. Udowychenko’s third amended complaint pursued claims for unjust enrichment, conversion, malicious prosecution/abuse of process, and injunc-tive and declaratory relief. Udowyehenko asserted that the City’s red light infraction program was an invalid exercise of municipal power because it purports to legislate in an area that has been preempted by chapter 316 of the Florida Uniform Traffic Control Law and chapter 318 of the Florida Uniform Disposition of Traffic Infractions Act.

The defendants filed an answer and alleged several affirmative defenses. Udow-ychenko and the defendants filed competing motions for summary judgment. A hearing on these motions was held on July 23, 2010. The trial court granted summary judgment in favor of Udowyehenko. The defendants appealed.

The City argued that the ordinance did not conflict with state law, but was a supplement to chapter 316, and expressly authorized by statute. Lasercraft argued the ordinance was not preempted by statute since there was no exclusive reservation of authority to the state and the Legislature had only recently enacted a statute (section 316.0076 as part of the Mark Wandall Traffic Safety Act) in order to expressly preempt the use of red light cameras to the state. Udowychenko argued that uniform traffic control has been preempted to the state and that the City’s ordinance conflicts with chapter 816 on several grounds. He further argued that the recent express preemption statute was a clarification in response to at least twenty-six municipalities with similar red light programs and the lawsuits challenging those programs.

The trial court concluded that while the goal of reducing red light running was laudable, the ordinance intrudes into an area preempted to the state and therefore is invalid. The trial court reasoned, “the Legislature has not authorized municipalities to enforce and adjudicate traffic law violations in a manner different from that provided in Florida Statutes, chapter 816. The ordinance does just that, and is therefore invalid.” The trial court also concluded that recent legislation expressly preempting the use of red light cameras to the state merely clarified what had always been the law. The trial court entered final judgment in Udowychenko’s favor for $131.00 plus interest. This appeal by the City and Lasercraft follows.

The issue on appeal is whether the lower tribunal erred in finding the City’s red light ordinance invalid by declaring that it was preempted by state law and otherwise conflicted with state statutes. An order granting summary judgment is reviewed de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Id. Questions of statutory application and preemption are also reviewed de novo. Marcy v. DaimlerChrysler Corp., 921 So.2d 781, 783 (Fla. 5th DCA 2006). We find the trial court did not err.

The City’s ordinance provides that a failure to stop at a red light is a civil, noncriminal infraction and authorizes the use of cameras to record images of motor vehicles running red lights as a means of enforcement. A code enforcement officer from the City reviews the recorded images from the cameras to determine the identification of the vehicle and the infraction, wherein a notice of infraction is sent to the registered owner of the vehicle. The notice includes the recorded images, the civil fine with the date by which it must be paid, and a warning that failure to pay the fine or to contest liability within thirty days will constitute a waiver and be considered an admission of liability.

An owner who files a notice of appeal must include a notarized statement explaining the grounds for appeal. If the infraction is not dismissed based upon the owner’s statement, the City schedules a hearing before a hearing officer, where the code enforcement officer who reviewed the recorded images must testify and the owner may testify. The recorded images are admissible and constitute prima facie evidence of the violation. Unless a police report has been filed, the registered owner is presumed to be responsible for the operation of the vehicle at the time of the red light infraction.

If the appeal is denied, the owner must pay the fine and costs, which is $125.00 for the first two violations and $250.00 for the third and any subsequent violation. Any owner who fails to appeal or is unsuccessful on appeal and then fails to pay the fine will be denied the right to obtain and maintain any city permits or licenses, including building permits and occupational licenses.

The City contends on appeal that according to section 816.008(l)(w), Florida Statutes, municipalities have been expressly granted the authority to regulate traffic on their roads so long as the regulation is not inconsistent with state law. The City argues that its ordinance does not conflict with state law, specifically section 316.007; it simply “added an additional” .means of enforcing the requirement that drivers stop at red lights. The City acknowledges that state law provides an officer must observe the traffic violation and the driver is issued the citation while no law enforcement officer is required to be present, whereas under the City’s ordinance the owner is issued the notice of infraction by a code enforcement officer; the City also admitted there were different standards of proof under state law and the ordinance. The City maintains it has supplemented this state law by using cameras to detect red light runners and to subject those individuals to fines using an administrative process under its municipal code enforcement department.

In support of its position, the City relies upon City of Aventura. In that case, the Third District Court of Appeal held that Aventura’s red light camera ordinance was not preempted, either expressly or impliedly, by state law and did not conflict with but merely supplemented the state’s uniform traffic laws, stating that chapter 316 “creates traffic laws, which are applicable throughout the entire state, municipalities have the power to pass certain ordinances that regulate municipal traffic within their borders.” 89 So.3d at 237. The Third District Court further stated:

Here, the Ordinance is consistent, and does not conflict, with any provision found within the Uniform Traffic Control Law as mandated by section 316.007, Florida Statutes. Local authorities are explicitly granted the right to enact laws or ordinances within their home rule power, supplemental to existing state laws, to regulate, control, and monitor traffic movement. Because there is no provision in the Uniform Traffic Control Law that expressly preempts or conflicts with the Ordinance necessary to overcome the City’s exercise of its broad home rule powers, we find the Ordinance valid under Florida law.

Id. at 237.

The City also cites Mendenhall v. Akron, 117 Ohio St.3d 33, 881 N.E.2d 255 (Ohio 2008) and City of Davenport v. Seymour, 755 N.W.2d 533 (Iowa 2008), in support of its position, in which the Ohio and Iowa Supreme Courts rejected preemption challenges to local automated traffic enforcement ordinances finding them to be “supplementary” to state law. The City also cites several cases that it considers to be instructive on the issue of preemption.

In response, Udowychenko contends that the ordinance is invalid because it intrudes, without express authorization, into an area that is “covered” by the Uniform Traffic Control Law. Udowychenko also contends that the ordinance conflicts with state law in at least eight areas; the ordinance 1) imposes vicarious liability; 2) makes signal violations an ordinance violation; 3) violates the requirement that a law enforcement officer observe the traffic signal infraction; 4) violates the requirement that proof of a violation be beyond a reasonable doubt; 5) evades the requirement that infractions be tried by judges or hearing officers; 6) violates the requirement that infractions be charged by a uniform traffic citation; 7) unlawfully diverts traffic signal related fines; and 8) imposes penalties that exceed those under state law.

In support of his position, Udowychenko cites two Attorney General opinions as persuasive. See State v. Family Bank of Hallandale, 623 So.2d 474, 478 (Fla.1993) (“Although an opinion of the Attorney General is not binding on a court, it is entitled to careful consideration and generally should be regarded as highly persuasive.”). In Opinion Attorney General Florida 2005-41, the Honorable Charlie Crist opined that the City of Pembroke Pines was authorized to enact a red light ordinance to monitor violations of traffic signals within the city and use photographs from cameras to advise vehicle owners that they had been recorded violating the traffic laws but was not authorized to issue traffic citations and penalize drivers who fail to obey red lights. In Opinion General Attorney Florida 97-06, the Honorable Robert Butterworth opined that while nothing precluded the use of unmanned cameras to record violations of section 316.075, a photograph of a vehicle violating traffic control laws may not be used as the basis for issuing a citation. Rather, independent observation or knowledge of the infraction by the officer issuing the citation was required.

Udowychenko also cites State v. Kuhlman, 729 N.W.2d 577 (Minn.2007) (en banc), in which the Supreme Court of Minnesota invalidated a city ordinance that made the owner guilty of a petty misdemeanor if his or her vehicle was photographed running a red light. The court concluded that the ordinance conflicted with uniform statewide traffic regulations by penalizing the owner rather than the driver and by creating a rebuttable presumption that the owner was the driver of the vehicle.

The Florida Constitution imparts home rule to municipalities, as Article VIII, section 2(b) provides that municipalities “may-exercise any power for municipal purposes except as otherwise provided by law.” However, section 166.021, Florida Statutes (2011), which codified Article VIII, limits that power where it states:

(1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.
(3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(c) Any subject expressly preempted to state or county government by the constitution or by general law.

■ Chapter 316, the Florida Uniform Traffic Control Law, provides for uniform traffic laws throughout the state and that municipal ordinances are not to conflict with those laws. Section 316.002, entitled “Purpose,” provides in pertinent part that:

It is the legislative intent in the adoption of this chapter to make uniform traffic laws to apply throughout the state.... Section 316.008 enumerates the area within which municipalities may control certain traffic movement or parking in their respective jurisdictions. This section shall be supplemental to the other laws or ordinances of this chapter and not in conflict therewith. It is unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter.

(Emphasis added). Section 316.007, Florida Statutes (2011), further emphasizes that traffic laws are.to be uniform throughout the state and provides, “[t]he provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.” (emphasis added).

While, local governments have the authority to enact ordinances, they are prohibited from infringing on areas preempted by state law, and in this instance “covered” by the Uniform Traffic Laws of the State of Florida, or conflicting with state statute. . Florida law recognizes two types of preemption: express and implied. Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla.2010). Express preemption requires a specific legislative statement; it cannot be implied or inferred. Id. Express preemption of a field by the Legislature must .be accomplished by clear language stating that intent. Id. Implied preemption exists when the legislative scheme is so pervasive the local ordinance would conflict with that pervasive regulatory scheme. Id.

The language in section 316.002 and section 316.007, where it specifically states the intent of the Legislature for uniformity of the traffic laws throughout the state prohibiting any local government from enacting or enforcing local laws covered by or in conflict with chapter 316, clearly indicates the Legislature’s intent to expressly preempt to the state the enforcement of traffic signal violations except for the limited local regulation allowed by the law.

In this instance, the City relied on section 316.008(l)(w) as authorizing its action to enact the ordinance, which provides:

§ 316.008. Powers of local authorities
(1) The provisions of this chapter shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from:
(w) Regulating, restricting, or monitoring traffic by security devices or personnel on public streets and highways, whether by public or private parties and providing for the construction and maintenance of such streets and highways.

Section 316.002 further states: “Section 316.008 enumerates the area within which municipalities may control certain traffic movement or parking....”

However, the City’s ordinance enforces traffic violations of a subject area that is covered and enforced by state law. This is the type of conduct that is expressly prohibited in the language of section 316.002 and section 316.008. According to section 316.075(l)(c)l., vehicular traffic “facing a steady red signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and shall remain standing until a green indication is shown.” (emphasis added). Meanwhile, section 5.21 of the City’s ordinance describes a motor vehicle at an intersection “at which a steady red traffic control signal is displayed shall stop before entering the crosswalk on the near side of an intersection or, if none, than before entering the intersection, and shall remain stationary until a green indication is shown on the traffic control signal.” (emphasis added). It is clear that the City’s ordinance regulates identical conduct that is covered by chapter 316, Florida Statutes. Accordingly, the City’s ordinance is contrary to section 166.021(3)(c) as it is expressly preempted by law.

Even assuming there was not express preemption from the enactment of this ordinance, there was implied preemption. The Florida Supreme Court has recognized that preemption is implied “when the ‘legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted by the Legislature.’ ” Sarasota Alliance For Fair Elections, 28 So.3d at 886 (quoting Phantom of Brevard, Inc. v. Brevard Cnty., 3 So.3d 309, 314 (Fla. 2008)). Here the legislative scheme of enforcing traffic violations is pervasive; chapters 316 and 318 cover almost every area of traffic regulation and enforcement, encompassing 125 pages in the publication of the Florida Statutes.

Effective July 1, 2010, the Legislature enacted the “Mark Wandall Traffic Safety Act” within the Florida Uniform Traffic Control Law, Chapter 2010-80, Laws of Florida, which included provisions in section 316.008 allowing a county or municipality to use “traffic infraction detectors” to “enforce s. 316.074(1) or s. 316.075(l)(c)l. when a driver fails to stop at a traffic signal on streets and highways under their jurisdiction under s. 316.0083.” The Act implemented a statewide red light enforcement program regulating the use of any traffic infraction detector on state, county, and local municipal roads. City of Aventura, 89 So.3d at 241. Of significance here, the Act added the following provision:

§ 316.0076. Regulation and use of cameras
Regulation of the use of cameras for enforcing the provisions of this chapter is expressly preempted to the state. The regulation of the use of cameras for enforcing the provisions of this chapter is not required to comply with provisions of chapter 493.

The City argues this provision would have been unnecessary if chapter 316 had already preempted ordinances establishing a red light camera program. While the City is correct that courts should not assume that the Legislature acted pointlessly, see City of N. Miami v. Miami Herald Publ’g Co., 468 So.2d 218, 220 (Fla.1985), the Legislature may enact statutes to simply clarify that which previously existed. See, e.g., McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1210 (Fla.2006) (“Sometimes it may be appropriate to consider a subsequent amendment to clarify original legislative intent of a statute if such amendment was enacted soon after a controversy regarding the statute’s interpretation arose.”). Section 316.0076 appears to have merely clarified that the regulation of traffic has been preempted to the state.

In addition, a city cannot enact an ordinance that directly conflicts with a state statute. Phantom of Brevard, Inc., 3 So.3d at 314 (“[I]n a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute”). Local ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute. Id. The test of conflict between a local government enactment and state law is whether to comply with one provision, a violation of the other is required. Id. In this instance, the statute is not silent as to the conduct regulated. It is the same conduct but enforced inconsistently.

As stated previously in this opinion, it is clear that the City’s ordinance enforces identical conduct that is covered by chapter 316. While section 316.075(l)(c)l. states that running a red light is a traffic violation, it further states in subsection (4) that it is a “noncriminal infraction.” Section 5.21 of the City’s ordinance cites the same conduct and, if a vehicle is recorded running a red light, a “notice of infraction” is issued. As indicated supra, it is clear from the plain text that the ordinance mimics the language of the statute and enforces an area of law that is covered, within chapter 316. In this instance, the ordinance and section 816.075(l)(c) both penalize the same conduct-the failure to obey red light traffic signals. Further, according to this chapter, the punishment and fines are covered by chapter 318. Consequently, the City’s ordinance conflicts with state law.

Section 316.640(5)(a), Florida Statutes (2009), provides for the issuance of a traffic citation based upon personal observation of the commission of a traffic infraction. Section 316.075, Florida Statutes (2011), requires adherence to traffic control signal devices by “drivers” of vehicles. Section 316.075(4) provides that a violation of this section is a noncriminal traffic infraction punishable pursuant to chapter 318. Section 318.14, Florida Statutes (2009) provides for civil penalties or, if the civil penalties were waived, a hearing before an official. The “official” means any judge authorized by law to preside over a court or hearing adjudicating traffic infractions. § 318.13(4), Fla. Stat. (2011). Section 318.14(6), Florida Statutes (2009) provides that the commission of a charged infraction at a hearing under this chapter must be proved beyond a reasonable doubt. Section 318.18(15), Florida Statutes (2009) provides for a $125 penalty for a violation of section 316.075(l)(c)l. when a driver failed to stop at a traffic signal, sixty dollars to be distributed as provided in section 318.21 [Disposition of civil penalties by county courts], and the remaining sixty-five dollars to be remitted to the Department of Revenue for deposit into the Administrative Trust Fund of the Department of Health. Section 318.121 prohibits the imposition of additional fees, fines, surcharges, or costs other than the court costs and surcharges assessed under section 318.18 from being added to the civil traffic penalties assessed in this chapter.

In contrast, the City’s ordinance provides for the issuance of a notice of infraction based solely on review of the recorded images by the City’s code enforcement officer. Orlando, Fla., Code of Ordinances tit. II § 5.22(b) (2012). Code enforcement officers include all code inspectors, fire inspectors, community service officers, designated park staff, and airport safety officers. § 5.11(1). The ordinance holds the owner, rather than the driver, at least initially responsible. § 5.22. The ordinance provides for a hearing before a hearing officer, who is an attorney appointed by the City Council to conduct appeals or other administrative hearings, and not before a judge or legislative hearing officer. § 5.20(b). The ordinance does not specify a standard of proof but presumably it is preponderance of the evidence and not proof beyond a reasonable doubt. The ordinance provides for a $125 fíne for the first two violations, increased to $250 for subsequent violations. § 5.26(a). According to the complaint, the fines are disbursed to the City and Lasercraft.

At a minimum, the ordinance conflicts with state law because it provides for a notice of violation based solely on recorded images and not on the personal observation of a law or traffic enforcement officer, provides that an individual appointed by the City Council who is not a judge determines the existence of the violation, allows for an adjudication based on proof less than beyond a reasonable doubt, imposes the penalty against the vehicle owner who may not have been the driver, imposes a fine different from that provided by state law, distributes the fines to the City and a private corporation and not as provided by state law, and imposes additional penalties not allowed by state law. Thus the trial court properly invalidated the ordinance based on preemption and conflict grounds. See, e.g., City of Palm Bay v. Wells Fargo Bank, N.A., 57 So.3d 226 (Fla. 5th DCA) (invalidating city ordinance, which granted city’s code enforcement liens priority over mortgages even when mortgages were recorded before liens, as conflicting with state statute codifying common law rule of “first in time, first in right”), review granted, 61 So.3d 410 (Fla.2011); see also Thomas v. State, 614 So.2d 468, 470 (Fla. 1993) (“While a municipality may provide a penalty less severe than that imposed by a state statute, an ordinance penalty may not exceed the penalty imposed by the state.”). But see City of Aventura, 89 So.3d at 240 (finding no conflict between state law and the procedure for contesting notices of violation set forth in the ordinance).

The conclusion that local enforcement of traffic signal violations by cameras are preempted by state law admittedly conflicts with City of Aventura. In that case, the majority concluded that the city’s red light camera program “falls squarely within the specific authority carved out in section 316.008(l)(w) by the Florida legislature.” City of Aventura, 89 So.3d at 239. However, the state’s authorization to municipalities to regulate traffic in section 316.008(l)(w) appears to contemplate only unique situations for which a statewide law is lacking or is inadequate. Here the Legislature has mandated that drivers stop at red light signals and has provided the mechanism to enforce that mandate. The imposition of separate and additional penalties for running a red light in a particular municipality does not fall ■within the specific authority of section 316.008(l)(w).

Accordingly, we affirm the judgment under review and certify conflict with City of Aventura.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.

      . No law enforcement officer observed the violation.

      . Lasercraft is also alleged to have received a portion of the fines.

      . This was initially a class action suit. Udowychenko’s motion to certify the class was denied. The court noted that only Udowychenko had filed an action to challenge the ordinance and that others who paid the fine most likely would be barred by the doctrine of voluntary payment.

      . Lasercraft did not file its own briefs but joined in those submitted by the City.

      . Judge Rothenberg dissented, concluding that Aventura’s ordinance to punish red light violations involved a matter already covered by chapter 316 and conflicted with chapters 316 and 318:
      The City is essentially utilizing the state’s uniform traffic control devices (traffic lights), approved and regulated by the state for enforcement of the state’s uniform traffic control laws, to punish violators through the City's own enforcement program and to pocket the revenues it collects for its own benefit. This is exactly the sort of inconsistent application of traffic laws and traffic penalties the people and legislature of this state sought to preclude by abolishing all of the municipal courts and enacting a uniform statewide traffic control system.
      While the Legislature granted municipalities the authority to regulate, restrict, or monitor traffic within their jurisdictions, the Legislature did not expressly grant municipalities the authority to enforce the same traffic infractions identified and already regulated in chapter 316 through their own "system of justice.” If that were the case, there would be no uniformity-only confusion.

        Id. at 246.

      . In Mendenhall, the Ohio Supreme Court concluded that the ordinance complemented rather than conflicted with state law because the ordinance provides that if a violation is both recorded by the automated system and observed by a police officer, then the criminal violation takes precedence. 117 Ohio St.3d 33, 881 N.E.2d 255 at 264. The City’s ordinance does not contain a similar provision. In City of Davenport, the Iowa Supreme Court recognized that, in contrast to its decision, the Colorado and Minnesota Supreme Courts have held that automated traffic enforcement regimes were preempted by state traffic laws. 755 N.W.2d at 544.

      . Udowychenko also cites the House of Representatives Staff Analysis for the Mark Wan-dall Traffic Safety Act. The analysis noted that based on these Attorney General Opinions, the majority of local governments with red light programs use them solely for data collection or as a warning system to motorists.

      . Further, this Court notes that section 316.075(l)(c)l.a. specifically authorizes municipal and county authorities to prohibit a right turn against a steady red signal at any intersection. However, it does not expressly authorize enforcement of running a red light.

      . This is contrary to City of Aventura, 89 So.3d at 239 (finding no implied preemption because chapter 316 cannot be classified as being so pervasive that it completely occupies the field).

      .The Act was named in honor of Mark Wandall, who was killed by a red-light runner when his wife was nine months pregnant. Melissa Wandall, The Real Reason for Red-

        Light Cameras, Herald Trib., Sept. 6, 2011, available at http://www.heraldtribune.com/ article-/20110906/COLUMNIST/l 10909886 (last visited June 5, 2012).

      . "Traffic infraction detector” is defined as:
      A vehicle sensor installed to work in conjunction with a traffic control signal and a camera or cameras synchronized to automatically record two or more sequenced photographic or electronic images or streaming video of only the rear of a motor vehicle at the time the vehicle fails to stop behind the stop bar or clearly marked stop line when facing a traffic control signal steady red light. Any notification under s. 316.0083(l)(b) or traffic citation issued by the use of a traffic infraction detector must include a photograph or other recorded image showing both the license tag of the offending vehicle and the traffic control device being violated.
      § 316.003(87), Fla. Stat. (2011).

      . Any sheriffs department or police department of a municipality may employ, as a traffic infraction enforcement officer, any individual who successfully completes instruction in traffic enforcement procedures and court presentation through the Selective Traffic Enforcement Program as approved by the Division of Criminal Justice Standards and Training of the Department of Law Enforcement, or through a similar program, but who does not necessarily otherwise meet the uniform minimum standards established by the Criminal Justice Standards and Training Commission for law enforcement officers or auxiliary law enforcement officers under s. 943.13. Any such traffic infraction enforcement officer who observes the commission of a traffic infraction or, in the case of a parking infraction, who observes an illegally parked vehicle may issue a traffic citation for the infraction when, based upon personal investigation, he or she has reasonable and probable grounds to believe that an offense has been committed which constitutes a noncriminal traffic infraction as defined in s. 318.14.
      § 316.640(5)(a), Fla. Stat. (2009).

      . (1) For the purpose of this article, the City Council of the City of Orlando hereby designates all code inspectors, sworn law enforcement officers, vehicle for hire officers, fire inspectors, community service officers, designated park staff, airport safety officers, and parking control officers as “code enforcement officers” who shall have the power and authority to enforce the Codes and Ordinances of the City as set forth in this article.


author: ORFINGER, C.J.

text:
    TRANG NGOAN LE, Appellant, v. TUNG PHUONG NGUYEN, Appellee.
    No. 5D10-4338.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.
    Jeffrey A. Conner, Winter Garden, for Appellant.
    No Appearance for Appellee.
   ORFINGER, C.J.

Trang Ngoan Le, the former wife, appeals a final judgment of dissolution of marriage that incorporated the provisions of a marital settlement agreement (MSA) and parenting plan entered into with Tung Phuong Nguyen, the former husband. On appeal, the former wife argues that the court should have set aside the MSA and parenting plan. We affirm in all respects, except as to the parenting plan.

The parties were married in 2004 and have two minor children. In January 2010, the former wife filed a pro se petition for dissolution of the parties’ marriage. Simultaneously, she filed the parties’ executed financial affidavits, as well the MSA and a parenting plan in which they waived spousal support, agreed on the distribution of marital assets, and provided that they would share time with the two children equally, on a rotating weekly basis, and thus, waived child support.

Prior to entry of the final judgment, the former wife filed a motion to set aside the MSA and parenting plan, alleging that the MSA was invalid and unenforceable because (1) it was reached based on fraud and misrepresentation; (2) it was unfair and grossly unreasonable; and (3) the former husband did not accurately disclose his income and assets. As to the parenting plan, the former wife alleged that it was no longer in the children’s best interests to reside with the former husband every other week because he has an anger management problem and has been physically abusive to her in the children’s presence. She further claimed that the children fear that the former husband could be physically abusive toward them. We affirm, without discussion, the trial court’s refusal to set aside the MSA, except as it relates to the parenting plan for the minor children.

The former wife correctly contends that the trial court erred by not considering whether the parenting plan was in the children’s best interests, and instead, requiring that she meet the high burden of proving a substantial change of circumstances. A court is not bound by an agreement of parents regarding child support, custody, or visitation. Higgins v. Higgins, 945 So.2d 593, 596 (Fla. 2d DCA 2006). As our sister court stated: “[i]t is undisputed, and should be indisputable, that a trial court’s responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents, nor by the opinions of any expert or group of experts.” Lane v. Lane, 599 So.2d 218, 219 (Fla. 4th DCA 1992); see Feliciano v. Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996) (confirming that trial court is not bound by agreement regarding child support, custody, and visitation where it determines that it is not in best interests of children). Instead, the trial court is required to “determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child -” § 61.1S(2)(c), Fla. Stat. (2010); see Jones v. Jones, 674 So.2d 770, 774 (Fla. 5th DCA 1996) (reiterating that “best interests of the children are to govern the custody decision, regardless of any stipulation between the parties”).

The former wife sought to set aside the parenting plan before it was incorporated into the final judgment. Consequently, she was not required to demonstrate a substantial change in circumstances, which is the standard required when seeking to modify a final judgment. See, e.g., Lewandowski v. Langston, 969 So.2d 1165, 1169 (Fla. 5th DCA 2007) (explaining that when party seeks to modify final judgment of dissolution of marriage to change custody of child, that party bears burden of establishing existence of substantial and material change in circumstances since entry of final judgment, and that change in custody will be in best interests of child).

For these reasons, we reverse the final judgment in part, and remand for an evi-dentiary hearing on the issue of the parenting plan and related child support. See Jones, 674 So.2d at 774 (holding that when parent asserts that agreement is not in best interests of child, trial court must hold evidentiary hearing).

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and EVANDER, JJ., concur.

      . The parties prepared their own documents with the assistance of a paralegal.


author: SILBERMAN, Chief Judge.

text:
    Pawel MOCIO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-5462.
    District Court of Appeal of Florida, Second District.
    July 25, 2012.
    Rehearing Denied Oct. 15, 2012.

      Dwight R. Dudley, St. Petersburg, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Respondent.
   SILBERMAN, Chief Judge.

Pawel Mocio seeks second-tier certiorari review of the circuit court’s order denying his petition for writ of prohibition. Mocio sought the writ of prohibition after the county court rejected his claim of immunity from criminal prosecution under the “Stand Your Ground” law and denied his motion to dismiss a domestic battery charge. We grant the petition because the circuit court applied the incorrect law in determining that prohibition is not a proper vehicle for reviewing orders denying motions to dismiss which assert immunity from criminal prosecution.

Mocio was charged with misdemeanor domestic battery in county court for slamming a window shut on his estranged wife’s hands as she tried to gain access to his room. He filed a motion to dismiss in which he asserted he was entitled to immunity under section 776.032, Florida Statutes (2010), the Stand Your Ground law. The county court held an evidentiary hearing and denied the motion. The county court concluded that it was not reasonable for Mocio to slam the window on his estranged wife’s hands to keep her from entering the room.

Mocio then filed a petition for writ of prohibition in the circuit court seeking to preclude the county court from exercising further jurisdiction over him based on his alleged entitlement to immunity. The circuit court denied the petition and concluded that a writ of prohibition was not a proper vehicle for challenging the propriety of the county court’s continued jurisdiction. The circuit court determined that the county court had jurisdiction over the misdemeanor domestic battery charge and that Mocio had an adequate remedy via direct appeal if convicted.

Mocio now seeks certiorari review of the circuit court’s order denying his petition for writ of prohibition. This court’s scope of review on second-tier cer-tiorari is limited to determining whether the circuit court afforded Mocio procedural due process and applied the correct law. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). At issue in this case is whether the circuit court applied the correct law by determining that a writ of prohibition was not a proper remedy because the county court had jurisdiction and Mocio had an adequate remedy on direct appeal. In order to resolve this question, we must determine whether the court violated “‘a clearly established principle of law resulting in a miscarriage of justice.’ ” Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003) (quoting Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003)).

It is well-settled that a writ of prohibition is a proper remedy for an accused who is challenging his continued prosecution based on grounds of immunity. See Tsavaris v. Scruggs, 360 So.2d 745, 747 (Fla.1977); State ex rel. Reynolds v. Newell, 102 So.2d 613, 615 (Fla.1958); State ex rel. Marshall v. Petteway, 121 Fla. 822, 164 So. 872, 874 (1935). This is because the question of whether a defendant has immunity may also be framed as the question of whether the lower court has jurisdiction to try him. Tsavaris, 360 So.2d at 747.

(T)he appropriate remedy ... would be to challenge the jurisdiction of the ... court to proceed by claiming immunity, and then, if that court proceeded, to seek relief by writ of prohibition in the appropriate court, that is, in the court having appellate jurisdiction.... Where a case is pending in the criminal court against a person claiming immunity ... it would be the duty of the criminal court involved to give effect to such immunity if it existed. Should the criminal court in such a case refuse to recognize the immunity the further action of that court in prosecuting the cause would amount to an excess of jurisdiction which then would be subject to restraint by prohibition.

Id. (quoting Buchanan v. State ex rel. Husk, 167 So.2d 38, 40 (Fla. 3d DCA 1964)(alternation in original)). And prohibition is the proper remedy in cases involving immunity from prosecution despite the availability of relief on direct appeal of a conviction. Reynolds, 102 So.2d at 615. In fact, several of our sister courts have entertained petitions for writ of prohibition to review circuit court orders denying motions to dismiss under the Stand Your Ground law. See Cruz v. State, 54 So.3d 1067 (Fla. 4th DCA 2011); State v. Yaqubie, 51 So.3d 474 (Fla. 3d DCA 2010); Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). Accordingly, the circuit court violated a clearly established principle of law in determining that a writ of prohibition was not a proper remedy in this case.

The next question we must resolve is whether this violation of the law resulted in a miscarriage of justice. We hold that the circuit court’s outright refusal to review the denial of Mocio’s assertion of immunity rises to the level of this type of serious misapplication of the law. Cf. Chmura v. Maxson, 46 So.3d 158,159 (Fla. 2d DCA 2010) (holding it was a miscarriage of justice for the circuit court sitting in its appellate capacity to refuse to reinstate an appeal based on a party’s failure to file a reply brief).

In conclusion, the circuit court violated a clearly established principle of law resulting in a miscarriage of justice by determining that a writ of prohibition was not the proper vehicle for challenging the propriety of the county court’s ruling on the immunity issue and its continued exercise of jurisdiction over Mocio. Thus, we grant Mocio’s petition for certiorari review with directions for the circuit court on remand to consider Mocio’s petition on the merits.

Petition granted.

NORTHCUTT and CRENSHAW, JJ., Concur.