author: NORTHCUTT, Judge.

text:
    Richard and Angelina MURRAY, Individually and as parents and natural Guardians and Next Friends of Brandon Murray, a minor child, Appellants, v. TRAXXAS CORP. and Powermaster Hobby Products, Inc., Appellees.
    No. 2D10-3789.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2012.
    Stephen F. Rosenthal of Podhurst Or-seck, P.A., Miami, and Alan F. Wagner of Wagner Vaughn & McLaughlin, Tampa, for Appellants.
    Hunter A. Hall and John J. Parigros of Vernis & Bowling of the Gulf Coast P.A., Clearwater, for Appellee Traxxas Corp.
    Brad T. Kandzer and Diane G. Cassaro of Fulmer LeRoy Albee Baumann, PLC, Tampa for Appellee Powermaster Hobby Products, Inc.
   NORTHCUTT, Judge.

Brandon Murray, the eleven-year-old son of Richard and Angelina Murray, was severely burned when vapors from a can of fuel meant for use in a remote controlled model vehicle ignited. His parents filed suit on his behalf against companies involved in the design, production, and sale of the fuel and the fuel can. The Murrays asserted various theories, including negligent defective design, negligent failure to warn, strict liability for defective design, and strict liability for failure to warn. In several orders over the course of the litigation the circuit court granted summary judgments to all of the defendants on all of the counts. The Murrays have focused their appellate challenge on the issue of whether defendants Traxxas Corp. and Powermaster Hobby Products, Inc., were entitled to summary judgment on the Mur-rays’ negligent design claim. We conclude that summary judgment should not have been granted on this claim.

Summary judgment is proper “only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, and (2) the moving party is entitled to a judgment as a matter of law.” Cannon v. Fournier, 57 So.3d 875, 881 (Fla. 2d DCA 2011) (internal citation omitted). “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991); see also Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006).

In this case, the deposition testimony reflects that Brandon was injured while he and his older brother Chastin were visiting their grandparents, the Coopers. The boys decided to start a fire in order to roast marshmallows. They gathered sticks and leaves, placed them in an empty food can on a backyard patio, and tried to ignite them with a lighter they had taken from their grandparents’ kitchen. But the leaves would not burn.

At that point, Chastin set out in search of something they could use to start the fire. In a shed that his grandfather used for storing tools and lawn equipment, Chastin spied a can of Top Fuel. The fuel had been stored there by the boys’ uncle, James Roach, who had purchased it several years previously for use in a remote-controlled model truck that he later sold. Chastin took the fuel, believing he could use it as lighter fluid.

When Chastin returned to the patio, Brandon was still attempting to burn a leaf with the lighter. As Brandon squatted over a leaf about four to five feet away from the can of leaves, Chastin stood over the can and began tipping the Top Fuel container to pour the fuel on the leaves. In the instant before any fuel poured out, Brandon “flicked the lighter and it just went boom.” The explosion startled Chas-tin, who rocked backwards, and the fuel “blew out” of the Top Fuel can onto Brandon.

Later, Chastin recounted that he did not see any flames, “just like a liquid or something” that just “blew out and ... got all over everything.” Brandon started screaming, and Chastin saw his brother’s clothes and “skin ... melting off.” Chas-tin grabbed a garden hose and began soaking his brother. Their grandfather heard their screams, as did a neighbor who called 911. Brandon was airlifted to the hospital.

A city fire inspector arrived soon after. All the family members were at the hospital, but the inspector photographed the scene and took one close-up picture of the Top Fuel can, which was still on the patio. He inspected the can that day and again several days later, when he returned to interview the family members. Brandon and Chastin also saw the can on the patio and both described it as “bowed out.”

Sometime after the accident, the boys’ mother and Mrs. Cooper prevailed upon Mr. Cooper to dispose of the Top Fuel can. They were concerned that it might be dangerous.

By the time of the hearing giving rise to the summary judgment under review, the only claim the Murrays were asserting was negligence based on a design defect in the fuel can. To prove their action based on negligent design, the Murrays must show that the defendants owed them a duty, that the defendants breached the duty, that the breach was the proximate cause of Brandon’s injuries, and that the Murrays suffered damages resulting from those injuries. See Vincent v. C.R. Bard, Inc., 944 So.2d 1083, 1085 (Fla. 2d DCA 2006). Their theory was that Brandon was injured in a “flashback” explosion that would not have occurred if the fuel container had not been negligently designed.

Both the Murrays and the defendants had filed evidence to support their respective positions. Traxxas and Powermaster emphasized that the city fire marshal and a fire inspector had investigated the accident and that neither of them thought that a flame-thrower event had occurred. The defendants had also retained an expert engineer who opined that the Top Fuel container could not have produced a flashback explosion.

The Murrays countered with the affidavit of an expert in fire chemistry, flammable liquids, and fire explosion investigation. He had considered the deposition testimony, the fire inspector’s photograph of the Top Fuel can, and an exemplar of the can. Based on his expertise, he opined that the accident resulted from a flashback explosion. He stated in his affidavit:

An inspection of the photograph of the can establishes the fact that an overpressure event occurred inside the container. This is a result of internal pressure. The deformities occur along the seams at the top and bottom corners of the can. This indicates internal pressure and rules out any physical trauma applied to the can. Second, the spout on the top of the can is leaning slightly to the left. This suggests the top of the can was also distended as a result of internal pressure.

In the expert’s opinion, the fuel container was defectively designed. He stated that the incorporation of a simple, inexpensive “flame arrestor” in the design of the can would have prevented the incident. He noted that flame arrestors are readily available on the market and have been incorporated by other manufacturers into similar fuel cans. Based on his analysis of the accident and his understanding of the functionality of flame arrestors, the Mur-rays’ expert concluded that Traxxas and Powermaster were negligent for not equipping the fuel can with such a readily available device.

At the conclusion of the hearing, the circuit court orally ruled in the defendants’ favor. It grounded its decision on the fact that the Top Fuel can had been disposed of and was not available for examination, basing its reasoning on the case of Torres v. Matsushita Electric Corp., 762 So.2d 1014 (Fla. 5th DCA 2000). The court stated:

Without the can, the undisputed facts, there’s no proof of plaintiffs’ theory of liability, that this can had a flame-thrower or flashback effect.
[T]here’s no way to prove and there is no proof in the record that the fuel contained in this can was Powermaster manufactured fuel manufactured for Traxxas, because it had been stored in an unsecured facility, accessed by anybody for two years. No one knows what condition may have changed in that fuel, whether it is even the fuel that was originally in the can, because the can was done away with.
The can couldn’t be tested, examined by experts as to whether this ... flamethrower effect had occurred. And that’s the theory of the case, and it can’t be proved without the can.

As can be seen from the circuit court’s remarks, its ruling hinged on its belief that the Murrays could never meet their burden to prove that a design defect caused the accident in which Brandon was injured because the can of Top Fuel had been discarded. The court identified two problems stemming from the fact that the fuel can no longer existed.

First, it observed that there was no way to show whether the original fuel was in the can at the time of the accident or whether it might have been tampered with or replaced by some other fuel. We note that the court’s observation that the fuel had been stored in “an unsecured facility, accessed by anybody” was factually inaccurate. To the contrary, the Murrays presented evidence of an unbroken chain of custody from the time the fuel was purchased to the date of the accident. Roach testified that he bought the Traxxas Top Fuel and the remote-controlled truck in the same transaction at a hobby shop. Chastin remembered going to the store with his uncle when the fuel was purchased, and the shop’s sales records confirmed that Roach had purchased Top Fuel. The shop owner testified that he carried Traxxas Top Fuel at the time, and he recognized from the photograph of the can involved in the accident that it was the kind of Traxxas Top Fuel he sold.

Roach testified that he placed the partially used can of Top Fuel on a shelf in the Coopers’ shed about two years before the accident. Mr. Cooper testified that he never used the fuel; “it was just set in the shed and kept with the other paints and other gas and stuff.” He kept his shed locked except when he was mowing the grass. On the day of the accident, he had unlocked the shed to access his tools or lawnmower.

Certainly, the Murrays presented sufficient circumstantial evidence to support a finding that, at the time of the accident, the can contained the fuel that Roach purchased from the hobby shop. On the defendants’ motion for summary judgment, the Murrays were entitled to that inference. The defendants presented no evidence that suggested otherwise, and speculation about what might have happened to the fuel if some unknown person had gained access to the locked shed was not a proper basis for a summary judgment. Cf. Carter v. Cessna Fin. Corp., 498 So.2d 1319, 1321 (Fla. 4th DCA 1986) (noting that “speculation, surmise and conjecture, are inadmissible at trial and legally insufficient to create a disputed issue of fact” in a summary judgment proceeding).

The upshot of the court’s theory was that it failed to construe the evidence in the light most favorable to the Murrays, as it was required to do on the defendants’ motion for summary judgment. See Cannon, 57 So.3d at 881; Castellano v. Raynor, 725 So.2d 1197 (Fla. 2d DCA 1999). Further, the court relieved the defendants of their burden to demonstrate through competent evidence the nonexistence of a material fact concerning the identity of the fuel in their can. See Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966).

The court also ventured that the Murrays could not prove the design defect because the specific can that was involved in the accident could not be examined and tested. But the can had been observed by eyewitnesses to the accident, and it had been inspected and photographed by the fire inspector shortly afterward. The shopkeeper who sold the fuel to Roach viewed the photograph and identified it as a Traxxas Top Fuel can. The experts who reviewed the available evidence, including an exemplar of the can, were able to opine as to the nature of the explosion, how it occurred, and whether the incorporation of a flame arrestor in the design of the fuel can would have prevented the accident.

These circumstances distinguish this case from Torres, on which the circuit court relied. In that case, the plaintiffs attempted to assert a negligence claim based on a defect in a vacuum cleaner that supposedly started a fire. Unlike the situation here, in Torres it was unclear who manufactured the vacuum or how old it was. 762 So.2d at 1016-17. The only expert testimony on causation was that “the most likely” problem was that heat internally generated in the vacuum caused “combustion of the material in the dirt bag,” or in the vacuum itself. Id. at 1015. As the Torres court noted:

If the design defect necessarily caused the fire which caused her injury, why did it take six years to do so? In other words, why did the vacuum not burst into flame the first time it was plugged in? If the design defect was such that it would cause a fire only after a certain amount of wear, then reference to the particular vacuum is essential in order to show that such wear occurred — otherwise, no proximate cause. And even if a design defect might have caused the fire after appreciable wear, there are other possible explanations not chargeable to defendant which might also have caused the fire — improper repair, failure to maintain the vacuum, maltreatment of the vacuum (electrical wires frayed and exposed), substitution of parts, etc. Thus, in a design defect case in which the design defect is alleged to be only a potential problem, such as the one herein, reference to the particular vacuum is essential.

Id. at 1017.

Here, unlike Torres, the Murrays’ design defect theory rests on the undisputed fact that Top Fuel cans were not equipped with fuel arrestors. This simple thesis does not require testing of the specific can involved in the accident. In fact, we question whether it would have been possible to test that can, given its condition after the explosion. In order to prove or disprove whether Top Fuel cans are subject to flashback explosions that could be prevented by fuel arrestors, both parties can conduct experiments on similar Top Fuel cans. Cf. Reed v. Alpha Prof l Tools, 975 So.2d 1202, 1204 (Fla. 5th DCA 2008) (distinguishing Torres where the plaintiffs asserted that they could prove their claims of strict liability, negligence, and failure to warn based on the photographs of the destroyed, allegedly defective product, and other specimens of the product; dismissal based on spoliation of evidence reversed).

We reverse the summary judgment in favor of Traxxas and Powermaster on the Murrays’ negligent design claim, and we remand for further proceedings.

SILBERMAN, C.J., and DAVIS, J., Concur.

      . The Murrays have dismissed their appeals against the other defendants who were granted summary judgment.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    Jonathan Davis CRICK, Appellant, v. Robbin Vickery CRICK, Appellee.
    No. 2D11-627.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2012.

      Jonathan D. Crick, pro se.
    Paul F. Grondahl of Barnes Walker, Goethe & Hoonhout, Chartered, Braden-ton, for Appellee.
   BLACK, Judge.

Jonathan Crick, the former husband, challenges the equitable distribution, the alimony award, and the attorney’s fees award, as well as the parenting plan, outlined in the magistrate’s report and recommendation and adopted by the trial court in the judgment dissolving his marriage to Robbin Vickery Crick, the former wife. We affirm, without comment, that portion of the judgment establishing the parenting plan, but for the reasons discussed herein, we reverse the equitable distribution and alimony and attorney’s fees awards.

Equitable Distribution

With regard to the distribution of assets and liabilities, sufficient findings justified the unequal distribution. However, in its findings, the court recognized that the SunTrust certificates of deposit (CDs) were purchased with a cash advance on the parties’ USAA American Express card. It also recognized that the former wife redeemed the CDs during the pen-dency of the dissolution and spent the bulk of the money, repaying $7336 after being ordered by the court to do so. In its distribution of assets, the court divided the total value of the CDs, awarding $74,873.60 to the former wife and $7336 to the former husband. In assigning the American Express debt, the majority of which was the advance for purchase of the CDs, the court noted that it would have divided the debt evenly except for the fact that the former wife had already repaid $7336, thereby decreasing her share of the debt by that amount. As a result, the former husband was credited the $7336 as an asset and also assigned the $7336 as a liability, creating an unjustified distribution to the former wife. Because of this error, the court abused its discretion, and we must reverse the equitable distribution for reconsideration. See Tilchin v. Tilchin, 51 So.3d 596, 597 (Fla. 2d DCA 2011) (reversing equitable distribution plan because court’s stated rationale for disproportionate distribution did not justify unequal distribution).

Alimony

The former husband also argues that the award of bridge-the-gap alimony to the former wife was an abuse of discretion. He contends that the award of $2000 per month for twenty-four months was excessive when considering his monthly income and the child support, debt service, and attorney’s fees payments he was also ordered to make in the final judgment.

Section 61.08, Florida Statutes, was amended in 2010 to expressly add bridge-the-gap alimony. Ch. 2010-199, § 1, at 2-3, Laws of Fla. “Bridge-the-gap alimony may be awarded to assist a party by providing support to allow the party to make a transition from being married to being single.” § 61.08(5). It “is designed to assist a party with legitimate identifiable short-term needs” and is not “modifiable in amount or duration.” Id. This amendment to section 61.08 applies to all awards of alimony entered after July 1, 2010, and is thus applicable to the December 14, 2010, order on appeal. Ch. 2010-199, § 2, at 4, Laws of Fla.

“To support its alimony determination, the trial court must include specific findings of fact in the final judgment.” Austin v. Austin, 12 So.3d 314, 317 (Fla. 2d DCA 2009) (citing § 61.08(1), Fla. Stat. (2004)). Among those required findings are the financial needs of one spouse and the ability of the other spouse to pay. § 61.08(2), Fla. Stat. (2010); Austin, 12 So.3d at 317. Moreover, “ ‘[a] trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be “shortchanged.” ’ ” Perez v. Perez, 11 So.3d 470, 473 (Fla. 2d DCA 2009) (quoting Vega v. Vega, 877 So.2d 882, 883 (Fla. 3d DCA 2004)). When determining whether a trial court abused its discretion in awarding alimony, this court considers whether the award “ ‘exceeds or nearly exhausts a party’s income’ ” and is therefore not supported by competent, substantial evidence. Id. (quoting Hotaling v. Hotaling, 962 So.2d 1048,1051 (Fla. 2d DCA 2007)).

Here, although the report and recommendation contained findings as to the factors listed in section 61.08(2)(a)-(g), it did not contain the requisite findings as to the need of the former wife or the former husband’s ability to pay. Neither did it include findings as to the former wife’s net or gross income or the former husband’s net income. In fact, we note that the magistrate found that after the equitable distribution the former wife would have far more resources than the former husband, that the former wife was underemployed, and that it would take her not more than eighteen months to find suitable employment. These findings, while supported by competent, substantial evidence, do not support the court’s award of alimony.

Moreover, in combination, the court-ordered monthly outlay for alimony, child support, and debt service is in excess of the former husband’s net monthly income and constitutes an abuse of discretion. See Cooper v. Cooper, 69 So.3d 977, 981 (Fla. 2d DCA 2011). Although the magistrate did not make a net income finding for the former husband, even using the gross monthly income finding of $6666.67, the alimony award of $2000 per month for twenty-four months coupled with the temporary child support of $933.16 and the monthly debt on the marital home exhaust the former husband’s income.

Therefore, in terms of both monthly court-ordered payments and the overall financial scheme of the parties, the court abused its discretion in awarding $2000 per month in bridge-the-gap alimony. On remand, the court shall conduct further proceedings to determine the parties’ needs and ability to pay given their respective available net incomes. See id; Perez, 11 So.3d at 473; Posner v. Posner, 988 So.2d 128, 130 (Fla. 4th DCA 2008); Chereskin v. Chereskin, 665 So.2d 1133, 1134 (Fla. 5th DCA 1996).

Attorney’s fees

The former husband next contends that the court abused its discretion in ordering him to pay one half of the former wife’s attorney’s fees. Because our remand for reconsideration of equitable distribution and alimony will likely “impact the figures used to calculate the parties’ respective needs or abilities to pay, it is appropriate for the trial court to also reconsider the entitlement to attorney’s fees on remand.” Tilchin v. Tilchin, 65 So.3d 1207, 1207 (Fla. 2d DCA 2011); see also Mills v. Mills, 62 So.3d 672, 676 (Fla. 2d DCA 2011) (“Because recalculation of the equitable distribution and alimony awards will result in a change in the parties’ overall financial picture, the trial court must also reconsider the former wife’s request for attorney’s fees.”).

In addition, we note that the magistrate found the former wife would have far more resources than the former husband after equitable distribution, but he made no findings regarding the parties’ financial positions or need for attorney’s fees after consideration of alimony and child support payments. This was error. A trial court must consider all assets and sources of income in an award for attorney’s fees. See Martinez v. Abinader, 37 So.3d 944, 947 (Fla. 2d DCA 2010). “The overall relative financial position and resources of the parties must be examined and not simply the isolated factor of income and earning capacity.” Stoler v. Sto-ler, 679 So.2d 837, 838 (Fla. 2d DCA 1996). A trial court’s determination of the parties’ financial position should be made after considering the financial resources of the parties as affected by the final judgment. See Green v. Green, 646 So.2d 210, 210 (Fla. 2d DCA 1994); Parker v. Parker, 655 So.2d 233, 234 (Fla. 1st DCA 1995). On remand, the court should assess attorney’s fees after considering the financial resources of the parties as affected by the final judgment.

Accordingly, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

DAVIS and KHOUZAM, JJ., Concur.


author: GILLESPIE, KENNETH L., Associate Judge.

text:
    Shiloh TOLER and Troy Toler, Appellants, v. BANK OF AMERICA, NATIONAL ASSOCIATION as Successor by Merger to LaSalle Bank National as Trustee for Luminent 2005-1, Appellees.
    No. 4D11-265.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.

      Michael Alex Wasylik of Ricardo, Wasy-lik & Kaniuk, PL, Dade City, for appellant.
    Jeffrey M. Gano of Florida Default Law Group, P.L., Tampa, for appellee.
   GILLESPIE, KENNETH L., Associate Judge.

Appellants, Shiloh and Troy Toler (hereinafter “the Tolers”), appeal the lower court’s denial of their motion to vacate a final summary judgment in a residential mortgage foreclosure action. The lower court denied the Tolers’ motion as untimely. Although we find that the Tolers’ motion was timely, we hold that the trial court did not abuse its discretion in denying the motion because it failed to allege a colorable claim for relief pursuant to Florida Rule of Civil Procedure 1.540(b).

I. FACTS

Appellee, Bank of America, sued the Tolers to foreclose on a residential mortgage, claiming the Tolers had defaulted. Although the Tolers were served with the complaint and obtained a 60-day extension of time to file responsive pleadings, they ultimately chose not to file any responsive pleadings or affirmative defenses.

Bank of America moved for summary judgment, alleging, inter alia, legal standing, priority in mortgage position, acceleration, costs and attorney fees due pursuant to the note, and a lack of any genuine issues as to any material facts.

A hearing on the summary judgment motion was held on May 6, 2010. A final judgment was entered the same day; it scheduled the sale date for June 14. From the limited record provided to this court, it appears the foreclosure sale was scheduled contrary to the trial court’s oral pronouncements, which provided that the sale not occur until 120 days after the date of the judgment and further required the parties to attend a conciliation conference or mediation. Pointing to the court’s oral pronouncements, the Tolers filed a motion to cancel and reschedule the foreclosure sale. Notwithstanding the Tolers’ motion, the foreclosure sale took place as scheduled; the property was purchased by Bank of America.

Three days after the sale, the Tolers filed a motion to vacate the sale based on the court’s instructions requiring an extended sale date and conciliation. The trial court vacated the sale and the parties attended two separate and unsuccessful mediations.

In September 2010, the Tolers filed a motion to vacate the final summary judgment, ostensibly pursuant to section 702.07. In the motion, the Tolers contended that the final judgment was granted prior to their filing of an answer and that Bank of America did not conclusively address an exhaustive list of all potential defenses that could have been raised. Summarily, the trial court denied the motion to vacate the judgment as untimely, an order from which the Tolers now appeal. The record fails to reflect whether any second sale has occurred.

II. ANALYSIS

An order denying a motion for relief from judgment is reviewed for an abuse of discretion. See J.M. Realty Inv. Corp. v. Stem, 296 So.2d 588, 589 (Fla. 3d DCA 1974); see also Schuman v. Int’l Consumer Corp., 50 So.3d 75, 76 (Fla. 4th DCA 2010) (same). “[Ujnder this standard, discretion is abused only where no reasonable person would take the view adopted by the trial court.” Strulowitz v. Cadle Co., 839 So.2d 876, 881 (Fla. 4th DCA 2003) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). Questions of law, such as the interpretation of statutes, are reviewed de novo. Cont’l Cas. Co. v. Ryan Inc. E., 974 So.2d 368, 373 (Fla.2008).

In their arguments, the parties dispute the effect of section 702.07, Florida Statutes (2009), and we resolve that issue first. The statute provides:

The circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment of all court costs.

§ 702.07. The Tolers argue that section 702.07 exists independent of any other means of obtaining relief from a judgment.

Contrary to the Tolers’ belief, section 702.07 standing alone does not create an independent, substantive right to vacate a judgment of foreclosure for any reason, even one that should have been properly raised at an earlier stage in the proceeding. Section 702.07 grants a circuit court the “jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property.” § 702.07. Notably absent from the statutory language are the grounds upon which a court may do so. Thus, by its plain language, the statute only confers on a circuit court the ability without articulating the grounds. See also Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (stating that “ ‘[wjhen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’” (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931))).

The history of the statute supports this interpretation of its plain language. The Legislature enacted the statute in 1927. See ch. 11881, § 1, at 382, Laws of Fla. (1927). Since then, the statute has remained unchanged, save for a few minor typographical amendments. Very few cases have cited it. As Judge Altenbernd has observed, “There is no discussion in the case law regarding the legislative history of this statute.” Sterling Factors Coi"p., 968 So.2d at 662 n. 6. But, as Judge Altenbernd continued, “it was enacted before the modern rules of civil procedure and at a time when many Floridians were facing foreclosure and ruin due to the collapse of the Florida real estate boom [in 1925 and 1926].” Id. Accordingly, “it seems likely that the statute was enacted during these hard times to give trial judges more power to protect landowners by expressly permitting the court to take actions after the final judgment of foreclosure and before the sale that were not previously authorized.” Id.; see also ch. 11881, § 5, at 383, Laws of Fla. (1927) (“[T]his Act shall take effect immediately upon its approval by the Governor, or become a law without the approval thereof.” (emphasis added)). In 1954, almost thirty years after the enactment of section 702.07, the Florida Supreme Court adopted the modern rules of civil procedure, which included Rule 1.540’s predecessor. See Bruce J. Berman, Civil Procedure R. 1010, cmt. 010.1[1], R. 1.540, cmt. 540.1 (2011-2012 ed.).

Given the statute’s plain language and history, the statute and Rule 1.540 should be read together, so that, as in other civil cases, Rule 1.540 provides the avenue for relief from a judgment of foreclosure. This means Rule 1.540 applies to this case, and that the Tolers were limited to the grounds set out in the rule. Cf. Molinos Del S.A. v. E.I. DuPont de New,ours & Co., 947 So.2d 521, 524 (Fla. 4th DCA 2006) (“As an exception to the rule of finality, Rule 1.540(b) gives the trial court jurisdiction to relieve a party from a final judgment in a narrow range of circumstances.” (citations omitted)); Am. Fire & Cas. Co. v. Dawson, 400 So.2d 849, 850 (Fla. 2d DCA 1981) (comparing the federal equivalent of the rule, which has a catchall that broadens a federal court’s ability to grant relief, to Florida’s, which “restricts the state courts to those reasons and circumstances set forth in the rule”).

The Tolers argue that the circuit court abused its discretion because their motion was timely. Rule 1.540 requires a party to file the motion within either “a reasonable time” or one year, depending on the grounds the party raises. See Fla. R. Civ. P. 1.540(b) (“The motion shall be filed within a reasonable time, and for reasons (1) [mistake, inadvertence, surprise, or excusable neglect], (2) [newly discovered evidence], and (8) [fraud, misrepresentation, or other misconduct of an adverse party] not more than one year after the judgment ... was entered.... ”). Since the judgment was entered in May and the Tolers’ motion was filed in September of the same year, the Tolers’ motion was timely under Rule 1.540(b); it was filed within one year and, in any event, within a reasonable time. Accordingly, the trial court abused its discretion in denying the Tolers’ motion on the ground that it was untimely.

Nonetheless, we affirm the lower court’s denial of the motion, because a party seeking relief from a foreclosure judgment must articulate a colorable basis for relief under Rule 1.540. Under Rule 1.540(b), a party must demonstrate one of the following:

(1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; [or] (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

The Tolers’ motion alleged that because Bank of America failed to anticipate and disprove an exhaustive list of potential affirmative defenses that could be raised in their case, the final summary judgment should be vacated. This is the argument a nonmoving party who has not raised affirmative defenses would make when faced with a summary judgment motion. It is not, however, one of the bases for relief provided in the rule.

Indeed, the cases the Tolers cite to support their argument are distinguishable because, in those cases, the defendants actually raised affirmative defenses to pending summary judgment motions, and the appeals were from grants of summary judgment against them. See, e.g., Lazuran v. Citimortgage, Inc., 35 So.3d 189 (Fla. 4th DCA 2010) (reversing final summary judgment of foreclosure where the defendant raised the affirmative defense of unfulfilled contractual condition precedent); Verizzo v. Bank of New York, 28 So.3d 976 (Fla. 2d DCA 2010) (reversing summary judgment of foreclosure where defendant had raised material factual issue concerning plaintiffs standing); Howell v. Ed Bebb, Inc., 35 So.3d 167 (Fla. 2d DCA 2010) (reversing summary judgment prior to filing of an answer where defendant had raised material issues at the summaiy judgment hearing). The principle those cases stand for — a plaintiff moving for summary judgment before an answer and defenses have been filed must conclusively refute possible defenses — does not apply in this post-judgment context.

In sum, we hold that while the trial court erred in denying the Tolers’ motion as untimely, we nevertheless affirm because the Tolers’ motion failed to allege a colorable claim for relief pursuant to Florida Rule of Civil Procedure 1.540(b).

Affirmed.

POLEN and CONNER, JJ., concur.

      . See Sterling Factors Corp. v. U.S. Bank Nat'l Ass’n, 968 So.2d 658 (Fla. 2d DCA 2007); Nobani v. Barcelona Dev. Corp., 655 So.2d 250 (Fla. 5th DCA 1995); Sun Bank, N.A. v. Stocks, 548 So.2d 305 (Fla. 1st DCA 1989); J.M. Realty Inv. Corp. v. Stern, 296 So.2d 588 (Fla. 3d DCA 1974); Aluminum Irrigation, Inc. v. Empire Capitol Corp., 194 So.2d 922 (Fla. 2d DCA 1967); Holiday, Inc. v. Glaser, 121 So.2d 677 (Fla. 3d DCA 1960); Maule Indus, v. Seminole Rock & Sand Co., 91 So.2d 307 (Fla. 1956); Grace v. Hendricks, 103 Fla. 1158, 140 So. 790 (1932); Taylor v. Day, 102 Fla. 1006, 136 So. 701 (1931); Fasel v. Cox, 99 Fla. 968, 128 So. 33 (1930).

      . As to the timeliness issue, section 702.07 is irrelevant under the facts of this case. Although recent case law has clarified that a motion for relief from judgment can be filed even after a sale, see Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 662-65 (Fla. 2d DCA 2007), we are not confronted with that situation. Here, the Tolers apparently filed their motion to vacate the judgment before a second sale could occur.

      . Even if we considered their argument to be one invoking excusable neglect, the motion would still be without merit. Excusable neglect requires showing excusable neglect, a meritorious defense, and due diligence. See Nationsbank, N.A. v. Regency Ctrs., Inc., 725 So.2d 439, 440 (Fla. 4th DCA 1999). Even assuming the defenses the Tolers mention are meritorious, they failed to make any allegations on excusable neglect and due diligence.


author: STEVENSON, J.

text:
    James P. MULLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2073.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

The defendant, James P. Mullins, was tried by jury and convicted of manslaughter and culpable negligence. In this appeal, the defendant seeks reversal and a new trial, alleging error in the failure to include the cross-examination portion of the testimony in response to the jury’s request for a play-back, the denial of two special jury instructions, comments made by the prosecutor during closing, and the imposition of costs and fines. We find merit in only the first of these claims, reversing and remanding for a new trial on that basis.

The victim, Anthony Gehle, and his wife, Angela, were separated. On March 12, 2009, Gehle took the couple’s daughter to the home his wife shared with her boyfriend, the defendant. It was undisputed that the defendant punched Gehle and, thereafter, Gehle drove away from the home with the defendant winding up on the hood of Gehle’s car. Gehle then ran the stop sign and was struck by an oncoming vehicle. The State’s theory was that the defendant had deliberately jumped onto the hood of Gehle’s car; that the defendant had hung onto the hood, attempting to punch Gehle through the open driver’s side window; and that, as a result, Gehle panicked, accelerated through the stop sign, and was struck by an oncoming vehicle. According to the defense theory, the defendant wound up on the hood of the car after Gehle deliberately struck the defendant with the car. The defendant was simply trying to hold on and made no attempts to punch Gehle through the window. Gehle’s failure to stop at the stop sign was not the product of any fear or panic, but of his desire to harm the defendant.

The chief witnesses to the events that resulted in the crash were Gehle’s wife, Gehle’s sister-in-law, and Esdras Gomez, the driver of the vehicle that struck Gehle. During their deliberations, the jurors sent a note indicating they would like “to hear the testimony of Angela Gehle [Gehle’s wife] concerning James Mullins jumping on the hood of the car” and the testimony of Gomez “concerning James Mullins jumping/falling off the car.” In response to the request, the trial court replayed the relevant portions of the witnesses’ testimony on direct examination. The cross examination on these same subjects was not replayed. The defendant insists the failure to include the cross examination, as requested by the defense, was reversible error. We agree.

Trial courts are afforded broad discretion in matters concerning the read-back or play-back of testimony. See, e.g., Kelley v. State, 486 So.2d 578, 588 (Fla.1986). And, in the case of a partial read-back of testimony, our supreme court has found no abuse of discretion where “[t]he portions of the testimony read ... were directly related and responsive to the jury’s interrogatory; they were not misleading and did not place undue emphasis on any particular statement.” Garcia v. State, 644 So.2d 59, 62 (Fla.1994). Here, however, the failure to include the cross examination was misleading in that testimony on cross examination was within the scope of the jury’s request and yet the jury was not told that the play-back included only the testimony elicited on direct examination. And, more importantly, the partial play-back served to emphasize a version of events favorable to the State and diminish a version favorable to the defense.

On direct examination, Angela Gehle testified that it was obvious to her that the defendant had intended to end up on the hood and that Gehle’s car was already in motion when the defendant jumped on the hood. But, on cross, the wife testified that the defendant jumped on the hood and then Gehle’s car took off. This point is significant as the State repeatedly argued to the jury that the defendant had jumped on the hood of the car while the car was in motion and that jumping on the hood of a moving car was conduct showing a reckless disregard for the safety of others, i.e., by jumping on the hood, the defendant not only panicked the driver, but blocked his view of the stop sign. This reckless disregard was an essential component of the charged offenses.

With respect to the defendant jumping/falling off the hood, Gomez testified on direct that he saw somebody on the hood of the car and that the man “rolled off’ and “jumped off’ before impact. He was not asked on direct how far away Gehle was from the stop sign when the defendant jumped/rolled off the hood. On cross, defense counsel elicited testimony that the defendant rolled off the hood before the stop sign and that, at the time, he was “pretty close” and “probably” one car length away. The combination of Gomez’s testimony on cross suggesting the defendant jumped/rolled off the hood prior to the stop sign and the unrefuted testimony from the accident reconstruction expert that Gehle was still accelerating when he went through the stop sign lends some support to the defendant’s theory that Gehle was the aggressor and not acting out of panic or fear due to the defendant’s jumping on the hood.

Accordingly, we reverse the defendant’s convictions and remand for a new trial.

Reversed and Remanded.

POLEN and TAYLOR, JJ., concur.

      . The standard jury instructions for manslaughter and culpable negligence, which were read to the jury, provide in relevant part:
      In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

        See Fla. Std. Jury Instr. (Crim.) 7.7 Manslaughter; Fla. Std. Jury Instr. (Crim.) 8.9 Culpable Negligence.


author: RAY, J.

text:
    Courtney JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4113.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2012.

      Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   RAY, J.

On July 28, 2010, Appellant timely filed this appeal seeking review of a judgment and sentence entered on July 16, 2010. However, the notice of appeal also referenced a judgment and sentence entered on May 3, 2010, and the issues on appeal relate to this judgment and sentence only. Due to the lapse of time between May 3, 2010, and July 28, 2010, we ordered Appellant to show cause why this appeal should not be limited to the judgment and sentence entered on July 16, and further, why this appeal should not be affirmed without additional consideration in view of the fact that the issues raised in the initial brief relate only to the judgment and sentence entered on May 3. Upon consideration of Appellant’s response, we hold that the notice of appeal was untimely as to the May 3 judgment and sentence. Limiting our review to consideration of the July 16 judgment and sentence, we affirm and write only to explain our jurisdictional determination.

By indictment, the State charged Appellant with first-degree murder (count one), armed robbery with a firearm (count two), and possession of a firearm by a convicted felon (count three). Count three was severed, and Appellant proceeded to trial on counts one and two. The jury found Appellant guilty of both counts, and on May 3, 2010, while the prosecution for count three remained pending, the court held a sentencing hearing for counts one and two. At the conclusion of that hearing, with counsel present, the court advised Appellant that he would have thirty days to file a notice of appeal. On the same day, the court entered the order adjudicating Appellant guilty of counts one and two and signed the sentencing form, which also memorialized that Appellant would have thirty days from that date to file a notice of appeal.

On July 10, 2010, the State filed an amended information as to count three, changing the allegation to state that Appellant had, as a convicted felon, possessed a firearm and/or ammunition. Appellant pled nolo contendere to that charge, and on July 16, 2010, the court entered the order adjudicating Appellant guilty and signed the sentencing form.

Florida Rule of Appellate Procedure 9.140(b)(1)(A) permits a criminal defendant to file a direct appeal from “a final judgment adjudicating guilt.” The jurisdictional time limit for filing such an appeal is set forth in Florida Rule of Appellate Procedure 9.140(b)(3), which provides that a notice of appeal must be filed “at any time between rendition of a final judgment and 30 days following rendition of a written order imposing sentence.” See also Fox v. District Court of Appeal, Fourth District, 553 So.2d 161, 163 (Fla.1989) (holding that “the relevant rules and requirements of justice mandate that the time for appeal from a sentence under rule 9.140, either by the defendant or by the state, begins running when the trial judge orally pronounces sentence in court and signs the sentencing form”). Under the plain language of this rule, Appellant’s appeal from the May 3 judgment and sentence was untimely.

Nevertheless, citing the familiar principle that an order is not final unless it leaves no judicial labor to be done, Appellant argues that the May 3 judgment and sentence does not constitute an appealable final order. Essentially, he contends that no appeal could be taken from that order until the court completely disposed of the third count charged in the case. For support, Appellant analogizes to civil cases where courts have held that an order disposing of a claim is non-final where interrelated claims remain. See, e.g., S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 100 (Fla.1974) (holding that an order dismissing a counterclaim was not an appealable final order because the counterclaim was substantively related to pending claims and the parties to the counterclaim remained involved in the proceedings below); Hernando County v. Leisure Hills, Inc., 648 So.2d 257, 258 (Fla. 5th DCA 1994) (dismissing an appeal where the court issued a partial final judgment on the issue of whether the plaintiff was entitled to have its plat recorded but left unresolved the issue of whether the plaintiff was entitled to damages, which was “so intertwined as to be inseparable”); Welch v. Resolution Trust Corp., 590 So.2d 1098, 1099 (Fla. 5th DCA 1991) (holding that “[a] final summary judgment entered on one count of a multi-count complaint is not appeal-able where interrelated counts remain”). The analogy to these cases is unfitting because it would obligate us to deem a final judgment adjudicating guilt non-final and, thus, not immediately appealable. Such a holding would unjustly require a criminal defendant to delay his appeal even though he would be required to begin serving the sentence immediately after rendition of the sentencing order. See Fox, 553 So.2d at 163.

The appeal from the May 3 judgment and sentence could be deemed timely only if there were a provision in the rules giving a criminal defendant the option either to appeal immediately from a judgment and sentence or to postpone the appeal pending the disposition of any severed counts. Cf. Fla. R.App. P. 9.110(k) (providing for an appeal from a partial final judgment in certain cases, not including criminal cases where a judgment and sentence has been entered, either immediately or at the conclusion of the entire case). Because no such provision exists, we must follow the jurisdictional time limit prescribed by Rule 9.140(b)(3) and hold that the time period for filing a notice of appeal from a criminal conviction begins after the rendition of the final judgment and within thirty days from rendition of a written order imposing sentence, regardless of whether other counts remain pending in the case.

As an alternative to arguing that the appeal was timely in all respects, Appellant’s counsel has requested that we treat his response to the order to show cause as a petition for a belated appeal. We decline to do so because the allegations in the response are facially insufficient as a petition for a belated appeal, in that they lack the required specificity and are not made subject to a proper oath. See Fla. R.App. P. 9.141(c)(3); Raley v. State, 884 So.2d 501, 501 (Fla. 5th DCA 2004) (holding, in the context of a petition for belated appeal, that “an oath not acknowledging that it is made subject to the laws governing perjury is insufficient”). Thus, it does not set forth a prima facie case for relief.

For the foregoing reasons, we affirm the judgment and sentence entered on July 16, 2010, and decline to address the issues raised with respect to the judgment and sentence entered on May 3, 2010. This disposition is without prejudice to Appellant’s right to seek a belated appeal by a proper petition pursuant to Florida Rule of Appellate Procedure 9.141(c).

AFFIRMED.

WOLF and MARSTILLER, JJ., concur.

      . Appellant’s counsel notes that he was not sent to the Department of Corrections on May 3, but instead remained in the county jail pending the resolution of count three. The record reflects that the trial judge gave Appellant the option of remaining in the county jail for convenience only, given that he may need to meet with his attorney in preparation for the potential trial on count three.


author: PER CURIAM. THOMAS, J.,

text:
    SUNTRUST BANKS, INC., Appellant, v. CAUTHON & McGUIGAN, PLC, Appellee.
    No. 1D11-3451.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2012.

      John R. Stump and Douglas C. Spears of Stump, Dietrich & Spears, P.A., Orlando, for Appellant.
    G. Ray Cauthon, III, Gainesville, for Appellee.
   PER CURIAM.

Appellant, SunTrust Banks, Inc., seeks review of the trial court’s Order on Emergency Motion for Temporary Injunctive Relief. Appellant argues that the trial court erred in issuing a temporary injunction and in ordering Appellee, Cauthon & McGuigan, PLC, to post a bond that was inadequate as a matter of law. Finding merit only in the first argument, we reverse.

Appellee, the alleged victim of what has been described as a “Nigerian scam,” received a check for $289,500 for a purported client from her supposed ex-husband in what Appellee believed to be a partial satisfaction of a marital settlement agreement. Attorney Cauthon, one of Appel-lee’s owners and partners, deposited the check into his client trust fund account held by Appellant. After allegedly being told by two of Appellant’s employees that the check had cleared, Mr. Cauthon authorized a wire transfer of the funds to his purported client. When Appellant discovered that the check was fraudulent, it seized $78,862.01, the balance of Appellee’s client trust fund account. Appellee sued Appellant for fraudulent misrepresentation and negligence and sought an injunction, requesting that Appellant be forced to return the seized funds. The trial court, relying heavily on the fact that the funds in the trust account belonged to Appellee’s clients, granted injunctive relief, ordered that the funds be returned to Appellee and that Appellee post a bond, and denied Appellant’s request for a stay. This appeal followed.

Before issuing a temporary injunction, a trial court must determine that the petition or pleadings demonstrate a prima facie, clear legal right to the relief requested. St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So.3d 728, 731 (Fla. 1st DCA 2009). To demonstrate a prima facie case for a temporary injunction, the petitioner must establish four factors: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) that a temporary injunction would serve the public interest. Id. The petitioner has the burden of providing competent, substantial evidence satisfying each of these elements. Id. An appellate court’s review of a ruling on a temporary injunction is hybrid in nature in that legal conclusions are reviewed de novo while factual findings implicate the abuse of discretion standard. Id.

While we understand the trial court’s concern for Appellee’s clients, Ap-pellee failed to establish the likelihood of irreparable harm, the unavailability of an adequate remedy at law, and a substantial likelihood of success on the merits. Not only could Appellee’s clients have filed suit against Appellee as a result of any negligence or breach of fiduciary duty on Appellee’s part, see, e.g., Kenet v. Bailey, 679 So.2d 348 (Fla. 3d DCA 1996), but also, Appellant had the right, both pursuant to statute and the parties’ contract, to “charge back” Appellee’s account when it did not receive final settlement for the check. See § 674.2141(1), Fla. Stat. Moreover, through its acceptance of Appellant’s Rules and Regulations for Deposit Accounts, Appellee acknowledged and agreed that “neither [Appellant] nor any of its employees or agents will be liable for any statement ... that an item, including a eheck[,] has been paid, has cleared or will not be returned or that such item or check is or was ‘good’ or any other statement of a similar nature.” The dissent, by relying on the trial court’s finding of negligence, overlooks Appellee’s agreement on this point and the fact that Appellee failed to establish a substantial likelihood of success on the merits as a result of such.

Because Appellee failed to establish the necessary elements for the issuance of a temporary injunction, the trial court erred in granting injunctive relief. Accordingly, we REVERSE.

DAVIS and VAN NORTWICK, JJ„ concur; THOMAS, J., dissents with opinion.

THOMAS, J.,

dissenting.

I respectfully dissent.

First, I note that the majority opinion fails to properly recognize the standard of review applicable to a trial court’s order granting a temporary injunction, to wit: the order “is presumed to be correct and will not be overturned absent a clear abuse of discretion.” 3299 N. Federal Hwy., Inc. v. Board of County Comm’rs of Broward County, 646 So.2d 215, 220 (Fla. 4th DCA 1994) (emphasis added); see also Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 275 (Fla. 2d DCA 2011) (“Our review of orders granting temporary injunctions is for abuse of discretion.”). Thus, our authority in this case is not to substitute our preferred judgment for the trial court, but to reverse only if the order granting a temporary injunction protecting innocent third parties’ trust funds was a clear abuse of discretion. The order here was not an abuse of discretion under the facts of this case, in my view; thus, this court should affirm the injunction.

In Brand v. Old Republic National Title Insurance Co., the trial court granted an ex parte temporary injunction “in pertinent part, to avoid potential misappropriation of escrow funds of innocent third parties.” 797 So.2d 643, 644 (Fla. 3d DCA 2001). Similarly, here, the trial court was faced with an emergency in which the property — trust funds belonging to Appel-lee’s clients — would have been seized by Appellant.

The trial court’s order is supported by an undisputed fact: the trust account “contained funds belonging to clients who are wholly unconnected to the controversy at issue.” (Emphasis added.) In addition, the trial court properly determined that it “is a matter of great public importance that client funds held in trust by an attorney should be protected under circumstances similar to those in the instant matter.”

What is particularly egregious here is that Appellant’s “employees ... acted negligently in effecting the wire transfer at issue, and that [Appellee] reasonably relied on representations from [Appellant’s] employees that the $289,500.00 check deposited by [Appellee] into [its] trust account on August 31st, 2010 had been cleared.” Thus, due to Appellant’s negligence, the trial court faced an emergency involving the risk of losing the property of innocent third parties. It is undisputed that Appellant’s employees informed Appellee that the money was available in the trust fund to effectuate the wire transfer, thus leading to the catastrophic loss of funds belonging to innocent third parties, Appel-lee’s clients.

Most importantly, the trial court found that these innocent third parties had no adequate remedy at law “in that those clients require immediate access to their funds in order to satisfy pending medical liens and other costs.” (Emphasis added.) Unlike a typical case in which monetary losses might not be considered a proper basis for injunctive relief, here, innocent third parties were involved who could not otherwise be adequately protected, as their need to access their property was immediate.

By reversing the trial court’s order granting a preliminary injunction, the majority opinion will allow financial institutions to disregard the rights of innocent third parties whose funds are held in trust. As it was Appellant which acted negligently, not Appellee’s innocent clients, it is the clients who should be protected until this matter is finally resolved — not Appellant.

I dissent from the majority opinion, which incorrectly reverses the trial court’s order granting the temporary injunction to protect Appellee’s clients’ trust funds.


author: WETHERELL, J.

text:
    Robert Jason PERDUE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5496.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2012.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, for Appellee.
   WETHERELL, J.

Robert Jason Perdue raises two issues in this direct appeal of his convictions and sentences: 1) that the trial court erred in denying his motion to suppress an audio recording made by a 911 dispatcher, and 2) that section 893.13, Florida Statutes, is facially unconstitutional. We affirm the second issue without further comment based on Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011), and we reverse the first issue for the reasons that follow.

On January 17, 2010, a dispatcher with the Escambia County Sheriffs Office, received a 911 call from a woman reporting a disturbance occurring at her daughter’s house next door. The woman gave the dispatcher the telephone number for that residence, and the dispatcher called the number to see if anyone there needed police assistance. After the line was answered, the dispatcher heard screaming and yelling in the background. No one said anything on the line; the line was simply open, and the dispatcher could hear a male threaten to shoot everyone in the house and himself. This call was recorded.

A deputy was dispatched to the residence where, according to the arrest report, he could hear arguing inside the house but he could not make out what was being said. The deputy did not come in contact with Perdue until he exited the house. Perdue denied threatening anyone, but his wife told the deputy that Perdue threatened to shoot her and his mother. After securing a rifle inside the house, the deputy arrested Perdue for two counts of aggravated assault with a deadly weapon. Perdue was also charged with drug possession and introducing contraband into a county detention facility as a result of a Xanax tablet and marijuana found on him in a search incident to the arrest.

Perdue moved to suppress the recording of the outgoing 911 call. He argued that the recording violated section 934.01(4), Florida Statutes (2009), and his right to privacy. After a hearing at which only the 911 operator testified, the trial court denied the motion. The court determined that the recording fell within the exception in section 934.03(2)(g)2, which the court broadly construed to allow an emergency agency to intercept and record any wire communication in order to acquire necessary information to render aid and assistance.

After the motion to suppress was denied, Perdue pled nolo contendere to the offenses, reserving the right to appeal the denial of the motion. The parties stipulated, and the trial court agreed, that the motion was “dispositive for purposes of appeal.” The trial court accepted the plea and, consistent with the negotiated plea agreement, sentenced Perdue to a downward departure sentence of 24 months of community control followed by 24 months of probation. This timely appeal follows.

The facts material to the motion to suppress are not in dispute. Accordingly, we review the trial court’s ruling on the motion de novo. See Miles v. State, 60 So.3d 447, 450-51 (Fla. 1st DCA 2011).

Section 934.03 prohibits the intentional interception and disclosure of wire, oral, or electronic communications without the parties’ consent or court authorization. However, an employee of an agency operating an emergency 911 system may lawfully intercept and record

incoming wire communications on designated “911” telephone numbers and published nonemergency telephone numbers staffed by trained dispatchers at public safety answering points only. It is also lawful for such employee to intercept and record, outgoing wire communications to the numbers from which such incoming wire communications were placed when necessary to obtain information required to provide the emergency services being requested,.

§ 934.03(2)(g)2, Fla. Stat. (2009) (emphasis added).

Communications intercepted in violation of Chapter 934, Florida Statutes, are not admissible in judicial proceedings, subject to a limited exception not applicable here. See § 934.06, Fla. Stat. (2009). Accordingly, as the trial court recognized, the disposition of the motion to suppress turns on whether the recording of the outgoing 911 call falls within the exception in section 934.03(2)(g)2.

The trial court interpreted the statutory language emphasized above to permit the recording of the dispatcher’s outgoing call to the victim’s residence even though it was a different number than the original 911 call. The court reasoned that the statute should be interpreted broadly to facilitate provision of emergency services to individuals in need. However, the court’s broad interpretation of the statute is contrary to the plain language of the statute. It is also contrary to the legislative history of the statute.

The plain language of section 934.03(2)(g)2 allows emergency agencies to record only (1) incoming 911 calls, and (2) outgoing call-backs by the 911 dispatcher to the number from which the incoming call was placed when the call-back is necessary to obtain information required for emergency assistance. The statute does not allow other outgoing calls by the 911 dispatcher to be recorded without the consent of the person being called, even if the outgoing call is in reference to or relates to an incoming 911 call.

The Attorney General reached the same conclusion in Advisory Opinion No.2002-56. There, the Attorney General was asked whether an employee of a municipal police department may record “an outgoing call made in reference to the recorded incoming call, if the outgoing call is made on the same line on which the incoming call is received.” See Op. Att’y Gen. Fla. 2002-56 (2002). The Attorney General answered that “[a]n outgoing call may be recorded only when it is made to the telephone number from which an emergency assistance request call was made in order to obtain information required to provide the emergency services being requested or when a called party gives permission for the call to be recorded.” Id.

The legislative history of the language emphasized above provides further support for this “narrow” interpretation of the statute. Prior to this language being added to the statute in 1987, section 934.03(2)(g)2 authorized law enforcement agencies to record incoming 911 calls, but not outgoing calls. See § 934.03(2)(g)2, Fla. Stat. (1985); see also Fla. S. Comm, on Judiciary-Crim., SB 154 (1987) Staff Analysis 1 (rev. Apr. 7, 1987) (on file with Fla. Dep’t of State) (explaining that existing law only authorized incoming 911 calls to be recorded and that an amendment was needed because: “Law enforcement agencies routinely record incoming emergency calls from citizens. Follow-up calls by the agency are often needed to send aid to the caller or verify information from the caller. In some instances, these outgoing follow-up calls are currently being recorded by law enforcement agencies using a telephonic system that does not distinguish between incoming and outgoing calls.”); Fla. H.R. Comm, on Science & Tech., HB 86 (1987) Staff Analysis 2 (Feb. 18, 1987) (on file with Fla. Dep’t of State) (hereinafter “HB 86 Staff Analysis”) (“Law enforcement agencies ... routinely record incoming calls received from citizens regarding emergency matters, reports of crime, etc. Frequently, return calls are necessary to verify information or seek additional facts in order to provide the emergency service.”). The original bill proposed to broadly allow “the recording of any outgoing call to any number, so long as the outgoing call is ⅛ response to’ the incoming emergency call,” see HB 86 Staff Analysis at 2; however, the bill was amended through the committee process to its present language to “clarif[y] that the outgoing calls which may be recorded are those calls made to the same numbers from which the incoming emergency calls are made.” Id.

In light of the plain language of the statute and its legislative history, we reject the State’s contention that section 934.03(2)(g)2 should be broadly construed to allow the recording of all outgoing calls by 911 dispatchers in the interest of promoting public safety. Limiting the statute to its terms does not in any way preclude dispatchers from calling numbers other than the incoming number when necessary to provide assistance or to send out police protection; the call simply may not be recorded without the consent of the person being called. Moreover, contrary to the State’s argument in its brief, limiting the statute to its terms will not lead to the absurd result of imposing civil or criminal liability on 911 dispatchers if they happen to record outgoing calls other than callbacks to the number of the incoming 911 call. See Brillinger v. City of Lake Worth, 978 So.2d 265 (Fla. 4th DCA 2008) (affirming summary judgment in favor of city for recording outgoing calls from emergency call center other than “911 call-backs” because even though the recording did not fall within the exception in section 934.03(2)(g)2, the city had a good faith belief that the recording was authorized by other provisions of Florida law governing 911 systems); § 934.10(2)(c), Fla. Stat. (2009) (providing a “complete defense” to criminal and civil liability where recording in violation of Chapter 934, Florida Statutes, but is based on a good faith determination that the conduct is permitted by federal or state law).

We also reject the State’s “tipsy coachman” argument that the recording in this case was lawful because the communication captured on the recording was an oral communication between Perdue and the victims in which Perdue had no expectation of privacy. First, the recording that was the subject of the motion to suppress included only the communications that were picked up over the telephone, which clearly meet the definition of “wire communication” in section 934.02(1). Cf. Dorsey v. State, 402 So.2d 1178, 1183 (Fla. 1981) (interpreting the definition of wire communication to apply “only to so much of the communication as is actually transmitted by wire and not broadcast in a manner available to the public”). Second, there is no basis in the limited record of the suppression hearing to conclude that Perdue did not have an expectation of privacy in the communication, which occurred in the residence he periodically shared with the victims. See generally Stevenson v. State, 667 So.2d 410, 412 (Fla. 1st DCA 1996) (explaining that the location of a conversation is a significant factor in determining the reasonableness of the defendant’s expectation of privacy, and noting that conversations occurring inside an enclosed area or in a secluded area are more likely to fall within the definition of oral communication in section 934.02(2)).

Accordingly, for the reasons stated above, we reverse the denial of the motion to suppress. It appears from the record that the motion was only dispositive of the aggravated assault offenses; the motion does not affect the drug offenses because the record reflects, and Perdue does not contest, that the deputy had probable cause apart from the 911 recording to arrest Perdue and search him incident to that arrest. Therefore, we remand for the trial court to vacate only Perdue’s convictions and sentences for the two counts of aggravated assault. Perdue’s remaining convictions and sentences are affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

WOLF and CLARK, JJ., concur.

      . Ch. 87-301, § 1, Laws of Fla.

      . Senate Bill 154 became Chapter 87-301, Laws of Florida. The original version of the bill was identical to House Bill 86, as were the amendments to each bill adopted during the committee process.

      . We assume based on the State’s stipulation that the motion to suppress was dispositive that Perdue's wife was unwilling to testify consistent with her statement to the deputy because, even without the 911 recording, the wife’s testimony (and/or that of the other victim) could have supported a conviction on the aggravated assault charge.


author: PER CURIAM.

text:
    Wendy Sheree MILLER, Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 1D11-5166.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2012.
    Wendy Sheree Miller, pro se, Appellant.
    Nicholas W. Romanello, General Counsel, and Wings S. Benton, Assistant General Counsel, Florida Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order which revoked her nursing license. Appellant argues that she did not receive notice of the hearing for the Board of Nursing meeting at which final action was taken on her license. The Department of Health has filed a motion for a relinquishment of jurisdiction, conceding that appellant did not receive the notice of hearing which resulted in the final order. In this circumstance, we treat the motion to relinquish jurisdiction as a confession of error. See Stacey v. Dep’t of Prof l Regulation, Board of Nursing Home Adm’r, 547 So.2d 241 (Fla. 1st DCA 1989). The order on appeal is quashed and the cause is reversed and remanded for further proceedings in accordance with the Florida Administrative Procedure Act.

REVERSED and REMANDED.

PADOVANO, THOMAS, and SWANSON, JJ., concur.


text:
    Mescha GILLISLEE, Appellant, v. EMI ENTERPRISES, INC. and Antitrust North America of Florida, Appellees.
    No. 1D11-2918.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2012.

      Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, and Mark A. Zimmerman, Deland, for Appellant.
    Rayford H. Taylor of Casey Gilson P.C., Atlanta, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) awarding temporary indemnity benefits from the date of the accident through February 14, 2011, and denying temporary indemnity benefits from February 15, 2011, through the date of the final hearing. Claimant challenges two rulings of the JCC: his rejection of the adjuster’s testimony on medical restrictions as sufficient proof of entitlement to indemnity benefits during the second time period above; and his calculation of the average weekly wage (AWW). We affirm the former ruling without further discussion, and reverse the latter for the reasons that follow.

The JCC found it was “not disputed that the Claimant’s ‘vacation pay’ and ‘funeral pay’ were received by the Claimant during the thirteen weeks prior to the industrial accident and were reported for Federal income tax purposes.” To the contrary, this fact was disputed. Specifically, the wage statement indicates Claimant was paid nothing for the week of June 13 to 19, 2010, and worked three days and was paid $264 for the week of June 20 to 26, 2010, and conversely, Claimant testified she was paid for a full forty hours for both weeks. Logic dictates that the JCC’s finding was actually the JCC’s rejection of the wage statement and acceptance of Claimant’s testimony that she received the pay. The JCC is entitled to determine credibility and resolves conflicts in the evidence. See City of W. Palm Beach Fire Dep’t v. Noman, 711 So.2d 628, 629 (Fla. 1st DCA 1998).

Given the JCC’s finding that Claimant actually received the pay at issue, the JCC nonetheless excluded that pay from the calculation of Claimant’s AWW, analogizing to Orange County School Board v. Muscanell, 705 So.2d 1026 (Fla. 1st DCA 1998), which excludes vested sick pay from AWW. The JCC misapprehended the facts of Muscanell, however, as evidenced by his statement in the final order that Mus-canell “received vested sick leave during the thirteen weeks before her injury.” In fact, the Muscanell claimant did not receive, that is, was not paid over the thirteen weeks before her injury, any amount of the vested sick leave that she had earned during that time. 705 So.2d at 1027. It follows that Muscanell is not dispositive, and the JCC on remand must consider, without resort to Muscanell, whether Florida Statutes permit inclusion of vacation and funeral pay in the AWW where it was actually paid during the thirteen weeks preceding the date of the accident.

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

WOLF, PADOVANO, and MARSTILLER, JJ., concur.


text:
    Antraveius T. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4348.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2012.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Antraveius T. Baker challenges his judgment of conviction and sentence for trafficking in more than 200 grams but less than 400 grams of cocaine. We affirm the conviction without comment, but we reverse certain costs imposed by the trial court and remand for a corrected sentencing order.

When the trial court orally announced sentence, it did not impose an assessment for (i) the sheriffs office investigation costs, (ii) the prosecution investigative cost, and (iii) the FDLE operation trust fund. These costs, which were assessed against appellant in the written order of sentence, are therefore improper. See Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011). Further, because appellant was not given the opportunity to contest the public defender fee, it too was erroneously assessed. See § 938.29(5), Fla. Stat. (2010). On remand, these costs are to be struck.

AFFIRMED in part, REVERSED in part and REMANDED.

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


author: KEST, J.M., Associate Judge.

text:
    Edward C. HODGE, Oliver W. Cowart and Merrill M. Henry a/k/a Mitchel M. Henry, Appellants, v. Scott W. CICHON, Andrew C. Grant, J. Lester Kaney and Cobb & Cole, P.A., Appellees.
    No. 5D10-1852.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2012.

      Terence J. Kann of Terence J. Kann, P.A., Gainesville, for Appellants.
    Michael R. D’Lugo and Richard E. Ramsey of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellees.
   KEST, J.M., Associate Judge.

This is a negligence action founded in legal malpractice. The plaintiffs, Appellants herein, alleged that the defendant lawyers were negligent in failing to properly implement an estate plan for an estate of which Appellants were beneficiaries. The trial court granted the lawyers’ motion for summary judgment. Finding that there exist genuine issues of material fact, we reverse.

Factual And Procedural Background

C.H. Cowart (“Cowart”) died in February 2007, at the age of ninety-nine and possessed of considerable wealth. Five years before his death, Cowart revisited his estate planning needs with two attorneys (not parties to this suit), as well as a tax and estate planning specialist, Frank Yong (“Yong”)- Yong prepared partnership and corporate documents to implement a limited partnership for estate planning purposes, including a family limited partnership (“FLP”). Prior to execution of these documents, Cowart deeded certain property to appellants, Merrill M. Henry (“Henry”) and Oliver W. Cowart (“Oliver”), and executed wills naming them as beneficiaries, altering the estate as it existed when Yong’s plan was prepared.

Shortly after these transactions, Co-wart’s son, Charles, and son-in-law, Samuel Tilton, sought a declaration that Cowart was incompetent. Prior to the competency hearing, but subsequent to the petition’s filing, Cowart executed another will. This will named Henry and Edward C. Hodge (“Hodge”) as beneficiaries. An order was entered on March 25, 2004, finding Cowart partially incompetent. The court appointed Henry Duffett, Imogene Strickland and Walton Cowart as guardians. At the guardians’ request, the probate court entered an order directing the implementation of the Yong estate plan in an effort to, among other things, reduce the estate’s tax liability. When Cowart died some two and one-half years later, however, Yong’s plan still had not been fully implemented.

Consequently, Appellants filed a negligence action alleging they were the intended beneficiaries of Cowart’s estate because they were beneficiaries under Cowart’s wills. They named as defendants Scott W. Cichon, Andrew C. Grant and J. Lester Kaney, lawyers for the guardians appointed by the probate court, and also Cobb & Cole, P.A. Appellants claimed the corpus of Cowart’s estate was significantly reduced by much higher estate taxes due to Appellees’ failure to implement the Yong estate plan as the probate court ordered.

Appellees filed a motion for summary judgment and argued to the trial court that Appellants lacked standing because no attorney-client relationship existed between them and Appellants. Further, they posited that an attorney-client relationship could not have existed due to the adversarial nature of the parties’ positions. Without this relationship, Appellees asserted a condition precedent had not been met, and therefore Appellants lacked standing to bring this action. Additionally, they argued the estate plan could not have been legally implemented because, under the facts here, a FLP created solely to reduce estate taxes was an improper device not allowed by the IRS. As a result, Appellees contended the tax savings that Appellants claimed as damages would not have been realized.

The trial court granted Appellees’ motion for summary judgment, finding no genuine issues of material fact existed in the record. It accepted Appellees’ argument that Appellants were not intended beneficiaries of the estate and lacked standing. The court below also concluded that, as a matter of law, the FLP was not a viable estate planning tool in this case.

After careful review of the record, we find that genuine issues of material fact exist as to the status of both the plaintiffs as intended beneficiaries and the FLP. Consequently, summary judgment should not have been entered.

Standard of Review

A trial court’s granting of a motion for summary judgment is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The party moving for summary judgment has the burden of proving the absence of any genuine issue of material fact, and that the movant is entitled to a judgment as a matter of law. Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966); Rodriguez v. Saenz, 866 So.2d 184, 186 (Fla. 5th DCA 2004). If material facts are conflicting, i.e., if facts permit different reasonable inferences to be drawn, or if facts even tend to prove material issues, then summary judgment may not be granted. Moore v. Moms, 475 So.2d 666, 668 (Fla.1985). Summary judgment is proper only where “the record affirmatively showed that the plaintiffis] could not possibly prove [their] case, and not because [they] had simply failed to come forward with evidence doing so.” Webster v. Martin Mem’l Med. Ctr., Inc., 57 So.3d 896, 897-98 (Fla. 4th DCA 2011) (quoting Visingardi v. Tirone, 193 So.2d 601, 605 (Fla.1966)).

Analysis

Generally, a party who retains an attorney is in privity with that attorney and may bring a negligence action for legal malpractice. Angel, Cohen & Rogovin v. Oberon Inn, N.V., 512 So.2d 192, 194 (Fla. 1987). A limited exception to the privity requirement in the area of will drafting allows an intended beneficiary to file a legal malpractice claim for losses resulting from a lawyer’s actions or inactions, where it was the apparent intent of the client to benefit that third party. Id.; See Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378, 1380 (Fla.1993); Kinney v. Shinholser, 663 So.2d 643, 646 (Fla. 5th DCA 1995). Standing to pursue a legal malpractice action is conferred upon “those who can show that the testator’s intent as expressed in the will is frustrated by the negligence of the testator’s attorney.” Espinosa, 612 So.2d at 1380. While the standing exception has been relaxed in will drafting situations, “the third party intended beneficiary exception to the rule of privity is not limited to will drafting cases.” Winston v. Brogan, 844 F.Supp. 753, 756 (S.D.Fla.1994) (citing Greenberg v. Mahoney Adams & Criser, P.A., 614 So.2d 604, 605 (Fla. 1st DCA 1993)).

Appellees take the position that there is “absolutely no evidence of any attorney/client relationship” between Appellants and Appellees. The record demonstrates that the overall intent of Co-wart’s retaining counsel was to create and establish a FLP for the purpose of preserving and maintaining the estate assets and preventing its dissipation through estate taxes. The petition seeking appointment of a guardian of Cowart’s property noted that “[t]he estate plan calls for the creation of a family limited partnership into which the Ward’s assets are transferred.” The expectation, according to the petition, was that “[u]nder current tax laws, the implementation of this estate tax planning may save the estate as much as forty percent (40%) in estate taxes.” The purpose of the estate plan was to benefit all named and intended beneficiaries; the larger the net estate, the better for all who might partake.

While there may have been animosity or acrimony among the various heirs and beneficiaries, the actions of retained counsel and the direction of the court in ordering the implementation of the estate plan were intended to benefit all and harm none. As noted in Winston, and as appears herein, while there may be conflict among the parties, there is no indication of a conflict of interest regarding the need to maximize the estate vis-a-vis less taxes and estate preservation. 844 F.Supp. at 756. If the dispute concerns whether or not Appellants were intended beneficiaries, the issue is one of fact for the jury to determine. See id. at 757.

Appellees argue that, even if Appellants could show that they were intended beneficiaries, Appellants could not prove damages as a result of their alleged negligence. They assert the damages, if any, are speculative, and therefore the failure to implement the FLP would not result in damages to Appellants. Appellees cite Tong’s deposition testimony wherein he opined that the IRS will not accept a FLP created only to reduce estate taxes. They argue that based on record testimony, the IRS would not have recognized the FLP had it been created.

The record also includes the affidavit of Walter Tovkach, an attorney with an LL.M in taxation and board certification in taxation from The Florida Bar. Tovkach opined that a FLP “is entirely appropriate for use in situations where there is an ongoing and active family business ... along with other assets such as cash and securities.” He further stated that, in his opinion, if a FLP was created, any challenge by the IRS would have been unsuccessful. The affidavit contradicts the assertions set forth by Appellees and creates sufficient questions of fact as to the viability of the tax planning vehicles and the effect of their use.

As they did below, Appellees rely upon tax court cases and a federal appeals court case dealing with the viability of FLPs, which they assert support their claim that the IRS would not have accepted the FLP here, because it would have been created solely to avoid the payment of estate taxes. “Ordinarily, intent is a question of fact that should not be decided on a summary judgment.” Sanders v. Wausau Underwriters Ins. Co., 392 So.2d 343, 345 (Fla. 5th DCA 1981). The purpose, or intent, in creating the FLP is not a matter to be disposed of in a motion for summary judgment. Specifically, Appellees rely upon Estate of Thompson v. Commissioner, 382 F.3d 367 (3d Cir.2004), to support their argument that the IRS would not accept the FLP. Thompson, however, was not a summary judgment case, but was decided by the tax court serving as the fact-finder. Appellees additionally cite as support an unpublished tax court case which is similarly unpersuasive, as the tax court did not reach its decision on a motion for summary judgment. Rather, the court made findings concerning the purpose of a FLP after hearing testimony.

We hold that Appellees have not demonstrated that Appellants cannot show they were intended beneficiaries, nor have Ap-pellees shown that questions of fact do not exist as to the effectiveness or viability of the estate plan the probate court directed to be implemented. Accordingly, Appel-lees did not meet their burden and the motion for summary judgment should not have been granted.

REVERSED and REMANDED.

SAWAYA and PALMER, JJ„ concur.

      . As this is an appeal from a summary judgment, we accept as true Appellants’ version of facts supported by the record. See Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995).

      . The guardianship orders were appealed by Appellants and affirmed. Cowart v. Strickland, 912 So.2d 1243 (Fla. 5th DCA 2005) (table) (nos. 5D04-1487 and 5D04-1736).

      .Mr. Duffett appears to have been one of the attorneys with whom Cowart worked in the 2002 estate planning.

      . Appellees claim that they "took all of the steps that they could to move the estate planning process forward,” including creating the FLP, which they now argue would not be accepted by the IRS.


text:
    Kennedy GRANT, Appellant, v. DEUTSCHE BANK NATIONAL TRUST, ETC., Appellee.
    No. 5D10-2321.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2012.
    Kennedy Grant, Eatonville, pro se.
    Thomas M. Moon, of Van Ness Law Firm, P.A., Deerfield Beach, for Appellee.
   PER CURIAM.

We strike paragraphs 8 and 17 from the Final Judgment, but otherwise affirm.

AFFIRMED. Paragraphs 8 and 17 stricken.

EVANDER, COHEN and JACOBUS, JJ., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    Trudy R. MAERZ and Eric S. Avery, Etc., Appellant, v. DAIMLER CHRYSLER FINANCIAL TRUST, et al., Appellee.
    No. 5D10-3356.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2012.
    Fanny Nater, and Alan J. Landerman, of Alvarez, Sambol & Winthrop, P.A, Orlando, for Appellant.
    Eric W. Neilsen, Michael Buckley and Lauren S. Curtis, of Buckley, Zinober, & Curtis, P.A., St. Petersburg, for Appellee.
   PER CURIAM.

We affirm the Order under review, see Rosado v. DaimlerChrysler Fin. Servs. Trust, 1 So.3d 1200 (Fla. 2d DCA 2009), review granted, No. SC09-390 (Fla. Nov. 9, 2011), and certify the following question as a matter of great public importance:

DOES THE GRAVES AMENDMENT, 49 U.S.C. § 30106, PREEMPT SECTION 324.021(9)(b)l., FLORIDA STATUTES?

AFFIRMED; QUESTION CERTIFIED.

SAWAYA and MONACO, JJ., concur.

GRIFFIN, J., concurs in part and dissents in part, with opinion.

GRIFFIN, J.,

concurring in part, dissenting in part.

For what it is worth, I agree with Judge Altenbernd’s dissent on the preemption issue in the Rosado case.


author: CASANUEVA, Judge.

text:
    ISRA HOMES, INC., a Florida corporation; Lendholders Trust, LLC, a limited liability company; and Ariel S. Bergerman, Appellants, v. John APPLEY and Betty Appley; Timothy Bouchard Limited Partnership; V & V Corporate Investments, Inc., a Florida corporation; Larry Heuple, as Trustee of the Larry W. Heuple Trust u/t/d 3/28/89; Norton Group, LLC, a Florida limited liability company; Blanche Edlund, as Trustee of the Blanche Edlund Intervivos Trust; Matthew J. Edlund, as Trustee of the Matthew J. Edlund Revocable Trust; Frain Enterprises, Inc., a Florida corporation; Kevin Boyer; Catherine A. Hodgson; Anthony Mele; Dennis A. Mele and Lynn Mele, husband and wife; Sarah Mele; Lee Ramsey; and Donald E. Wolfram and Mary S. Wolfram, husband and wife, Appellees.
    No. 2D11-3022.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 2012.
    J. Andrew Crawford, St. Petersburg, for Appellants.
    No appearance for Appellees.
   CASANUEVA, Judge.

Appellants seek review of an order assigning rents to Appellees during the pen-dency of a foreclosure case. We reverse because Appellees only held a partial interest in the note and mortgage at issue and thus were not authorized to enforce any provisions of those instruments.

Appellees, plaintiffs below, collectively owned an approximate 78% interest in the note and mortgage on property owned by ISRA Homes, Inc., the borrower. Ariel S. Bergerman and Lendholders Trust, LLC, owned the remaining interest in the note and mortgage. Appellees filed a foreclosure action against ISRA Homes, while Bergerman and Lendholders Trust refused to join in the lawsuit. During the pendency of the foreclosure action, Appel-lees moved for an assignment of rents collected on the subject property based upon the enforcement mechanism contained within the text of the note and mortgage. The trial court granted the motion over Appellants’ objections.

On appeal, Appellants argue that Appel-lees were not entitled to enforce any provision of the note and mortgage because they did not constitute 100% of those identified as payees under the terms of the instrument. The plain meaning of the applicable statutes supports this argument.

Two sections of chapter 673, Florida Statutes (2006), govern this case. Section 673.3011 defines who may enforce an instrument:

The term “person entitled to enforce” an instrument means:
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the rights of a holder; or
(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4).

Appellees described themselves as holders below because they held a substantial interest in the note. But they also admitted that other persons who had not joined • the suit owned the remaining percentage. Another section of chapter 673 expressly applies to situations like this in which an instrument is payable to two or more persons:

If an instrument is payable to two or more persons alternatively, it is payable to any of them and may be negotiated, discharged, or enforced by any or all of them in possession of the instrument. If an instrument is payable to two or more persons not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only by all of them.

§ 673.1101(4) (emphasis added).

The documents cited in this case reflect that the payees hold their interests “not alternatively.” Therefore, only all of the payees could seek enforcement by way of assignment of rents. Because Appellees only constituted some of the payees, section 673.1101(4) prevented them from seeking assignment of rents. Consequently, the trial court erred in granting an assignment of rents to Appellees. We therefore reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WALLACE and BLACK, JJ., Concur.

      . Ariel S. Bergerman was also a personal guarantor on the note and mortgage. We surmise that this may have been the reason Bergerman refused to join in the foreclosure action. Appellees joined Bergerman and Lendholders Trust as defendants below.


text:
    Frances S. PULLINS, et ux., et al., Appellants, v. EVERHOME MORTGAGE COMPANY, Appellee.
    No. 1D11-5687.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2012.
    April Carrie Charney, Jacksonville, for Appellant, Frances S. Pullins.
    Marisa D. Ajmo of Shapiro & Fisman, LLP, Boca Raton, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(0.

LEWIS, ROBERTS, and RAY, JJ, concur.


text:
    Ronnie Levene WALKER, Jr, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1139.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2012.

      Nancy A. Daniels, Public Defender, Tallahassee, and Matthew D. Ream, Assistant Public Defender, Crawfordville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

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