text:
    CITY OF PALM BAY, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 5D09-1810.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.
    James D. Stokes, City Attorney, and Andrew P. Lannon, Deputy City Attorney, City of Palm Bay, for Appellant.
    Tracy A. Mitchell and Keith Poliakoff of Becker & Poliakoff, P.A., Amicus Curiae, Town of Southwest Ranches, Fort Lauder-dale, for Appellant.
    Matthew J. Conigliaro and Stephanie C. Zimmerman of Carlton Fields, P.A., St. Petersburg, and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for Appellee.
   ON MOTION FOR CERTIFICATION

PER CURIAM.

Upon consideration of Appellant’s motion for certification, we grant same and certify the following rephrased question to the Florida Supreme Court as one of great public importance:

Whether, under Article VIII, section 2(b), Florida Constitution, section 166.021, Florida Statutes and Chapter 162, Florida Statutes, a municipality has the authority to enact an ordinance stating that its code enforcement liens, created pursuant to a code enforcement board order and recorded in the public records of the applicable county, shall be superior in dignity to prior recorded mortgages?

TORPY, EVANDER and COHEN, JJ„ concur.


source: Caselaw Access Project

author: CASANUEVA, Chief Judge.

license: Public Domain

text:
    Louis Stanley ORLOFF, Appellant, v. Joyce Lynn ORLOFF, Appellee.
    No. 2D09-3059.
    District Court of Appeal of Florida, Second District.
    March 30, 2011.

      Timothy W. Weber and Joseph P. Kenny of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellant.
    Michael J. Park of Park, Ossian, Bar-naky & Park, P.A., Clearwater, for Appel-lee.
   CASANUEVA, Chief Judge.

Louis Stanley Orloff raises three issues in his appeal from the final judgment dissolving his marriage to Joyce Lynn Orloff. Mr. Orloff first contends that the trial court failed to exercise independent judicial decision making in authoring the final judgment; next, that the trial court erred in crafting the equitable distribution package; and, finally, that the award of permanent alimony was improper as lacking sufficient findings of fact. We find no merit in his first claim but agree with his contentions regarding the equitable distribution and reverse on that basis. Our reversal of the equitable distribution portion of the final judgment renders the third issue moot because it results in the need to reconsider the alimony award on remand as well as the issue of attorney’s fees and costs.

The main point of contention between the parties was the status and value of the Matrix Group Ltd., Inc. (Matrix). Mr. Orloff formed Matrix, a mail order business of sporting goods and accessories, in the late 1980s as a sole proprietorship. In 1991, before the parties were married, Mr. Orloff incorporated Matrix under the laws of Massachusetts and became the sole stockholder. Following the parties’ subsequent marriage and relocation to Florida, Mr. Orloff reincorporated Matrix under the laws of Florida and, as before, retained complete ownership of the corporation’s stock, serving as its president and chief executive officer. Mrs. Orloff was a valued employee of the company. In the final judgment of dissolution, the trial court found that the parties’ most significant marital asset was Matrix. This was error because Matrix, under the circumstances of this case, is a nonmarital asset.

Nonmarital assets are defined as “Ms-sets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities.” § 61.075(6)(b)(l), Fla. Stat. (2009). This court in Pinder v. Pinder, 750 So.2d 651 (Fla. 2d DCA 1999), considered a case with a similar issue of whether an asset was nonmarital or marital. In that case, the property settlement and conveyances concerning certain Philadelphia real estate owned during Mrs. Pinder’s first marriage were not completed until well into her second marriage when she received sole title to the Philadelphia property. In the later dissolution action of her second marriage, the trial court classified 50% of the Philadelphia property as a marital asset. We reversed that classification, saying that “[a]lthough Mrs. Pinder received sole title to the Philadelphia assets during her second marriage, ... these assets were received in exchange for assets she had acquired before the second marriage.” Id. at 653. We directed that on remand the trial court should set aside the Philadelphia assets as her nonmarital property and recalculate the equitable distribution scheme. Id.

Also instructive is Conlan v. Conlan, 43 So.3d 931 (Fla. 4th DCA 2010). Prior to his marriage, Mr. Conlan was a co-owner of a business and three warehouse units from which the business operated. After his marriage, a new but similar company was formed and it desired to purchase new premises for its operation. The warehouse units owned by the older company were transferred into three separate limited liability companies to facilitate a tax-free exchange for the new property. The proceeds from the subsequent sale of the three warehouse units were used to satisfy a bridge loan that the newly-formed business had taken out to purchase its new premises. In the Conlans’ dissolution action, the trial court concluded that the newly-purchased property was a marital asset because the new company had been formed during the marriage. The Fourth District reversed, concluding that the property was nonmarital because it was acquired entirely with nonmarital funds. Id. at 935.

In the Orloffs’ case, similar to Pin-der and Conlan, Matrix remained a corporation solely owned by Mr. Orloff both before and after the marriage. Pursuant to statute and in accord with the above case law, this asset must be classified as nonmarital because Mr. Orloff used solely nonmarital assets to form it. That Matrix was reincorporated under Florida law upon the parties’ relocation to Florida is not material to this conclusion. See Conlan, 43 So.3d at 935 (holding that despite the creation of the new company during the marriage, it was a nonmarital asset because it was formed solely with the use of nonmarital assets).

But this does not conclude the issues concerning Matrix. We turn next to the trial court’s categorization of assets that Matrix held in the Louis S. Orloff Grantor Retained Annuity Trust (the GRAT). Several years prior to the filing of the parties’ dissolution petition, Matrix was involved in a lawsuit from which it expected to receive a substantial recovery. In anticipation of these proceeds, Mr. Or-loff, on advice from a tax specialist, created the GRAT. Mr. Orloff and his cousin are the trustees of the GRAT. Mr. Orloff, as sole shareholder, president, and CEO of Matrix, conveyed 60% of the Matrix stock into the GRAT, conveyed 20% to Mrs. Orloff, but retained the remaining 20% in his name. Because Matrix stock was used to create the GRAT and because of Mr. Orloffs hand in controlling Matrix, in the final equitable distribution scheme the trial court categorized this 60% of the Matrix stock held by the GRAT as marital, the 20% held by Mr. Orloff as marital and the 20% held by Mrs. Orloff as marital.

This was error in part. Based on the same reasoning outlined above and as applied to the provenance of the corpus of the GRAT, because Matrix was nonmari-tal, 60% of its stock remained nonmarital when Mr. Orloff transferred it into the GRAT. For these same reasons, Mr. Or-loffs retained 20% of Matrix stock remained his nonmarital property because it was an asset acquired prior to the marriage. But the trial court correctly categorized the 20% conveyed to Mrs. Orloff as a marital asset because, pursuant to statute, it was conveyed to her during the marriage. See § 61.075(6)(a)(l)(a) (defining marital assets to include “[a]ssets acquired and liabilities incurred during the marriage”).

One last remaining issue must be addressed. Historically, the business of Matrix was seasonal. And, by consequence, when cash flow problems developed, Mr. Orloff solved these problems by borrowing from and then repaying these loans from corporations and partnerships that were created, owned, and operated by either himself, his parents or grandparents, siblings, aunts, uncles, or cousins. The primary entity that helped Matrix throughout its life was the Orloff Family Limited Partnership (the OFLP) that was created with the assets of Mr. Orloffs parents and thereafter controlled by Mr. Orloffs father until his death. Mr. Orloff, before his marriage to Mrs. Orloff, was given a minority share in the OFLP as were other members of his extended family; but Mrs. Orloff held no share in the OFLP. The trial court erroneously included the value of Mr. Orloffs stake in the OFLP as a marital asset in the equitable distribution schedule. It is a nonmarital asset because it was acquired prior to the marriage. See § 61.075(6)(b)(l).

On remand, the trial court shall recalculate the equitable distribution package with Matrix classified as a nonmarital asset and remove the following nonmarital assets from the equitable distribution equation: the 60% of Matrix stock in the GRAT and Mr. Orloffs 20% of Matrix stock. However, any enhancement in value of Matrix since the date the parties married is properly considered a marital asset if during the marriage such enhancement was due to Mr. Orloffs or Mrs. Orloffs contribution of marital labor or marital funds. See § 61.075(6)(a)(l)(b); see also Conlan, 43 So.3d at 935-36; Eager v. Eager, 696 So.2d 1235, 1236 (Fla. 3d DCA 1997).

Because our disposition requires a major adjustment in the equitable distribution scheme, we also direct that the trial court reconsider the alimony award to Mrs. Or-loff in light of its recalculation of equitable distribution. If it thereafter decides to award alimony, it shall also make sufficient findings of fact as required by section 61.08(2) to support that award in order to facilitate further appellate review, if necessary. The denial of attorney’s fees and costs to either party in the final judgment of dissolution will also require reconsideration upon remand.

That part of the final judgment of dissolution equitably distributing the assets, awarding alimony, and denying fees and costs to either party is reversed; in all other respects, the final judgment of dissolution is affirmed; and the cause is remanded for further proceedings in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.

      . Our conclusion that Matrix must be considered a nonmarital asset moots Mr. Orloff's other issues relating to the valuation of the company and whether the trial court correctly inferred that he depleted that asset.

      . A GRAT is a financial instrument that allows the grantor to gift large financial amounts to family members without paying the gift tax. The grantor deposits the valuable assets into the GRAT which is set up as an annuity. The trustee(s) thereafter make annual payments to the grantor for a certain term as specified in the trust document. At the end of the specified term, the beneficiary, who must be a family member, receives the remaining value of the trust as a gift. If the grantor dies before the end of the specified term, the beneficiary receives the value of the trust then. Noel C. Ice, What You Should Know About Your GRAT (Grantor Retained Annuity Trust)—How To Make Large Gifts Without Paying Gift Tax or Using Any Gift Tax Unified Credit, (2003), http://www.trustsand estates.net/GRATs/GRATMmClIce.htm.

      . Eventually, this lawsuit resulted in an award of more than nine million dollars in favor of Matrix.

      . This conclusion is further underscored by the fact that the entity that is the GRAT was not under the jurisdiction of the trial court.

      . Mr. Orloff properly admits that his shares in many of these other entities are marital assets.


author: BLACK, Judge.

text:
    William Hyatt STIEH, a/k/a William Hyatt Stien, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3158.
    District Court of Appeal of Florida, Second District.
    April 1, 2011.

      James Marion Moorman, Public Defender, and Bruno F. DeZayas, Special Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Following a September 1, 2007, incident where Stieh stabbed Daniel Conneally, Stieh was charged with aggravated battery. Stieh proceeded to trial and at the close of the State’s case and again at the close of his case, he moved for judgment of acquittal, arguing the State failed to present sufficient evidence to overcome his theory of self-defense. Both motions were denied, and Stieh was convicted. Because Stieh presented a prima facie case of self-defense and the State failed to prove beyond a reasonable doubt that he did not act in self-defense, the trial court should have granted Stieh’s second motion for judgment of acquittal. Accordingly, we reverse the judgment.

The events in question occurred after four parties — Conneally, the victim; the victim’s girlfriend; Stieh, the appellant; and Jeffrey Flaherty, the appellant’s friend — engaged in a consensual sexual encounter. Conneally and his girlfriend were invited to join Stieh and Flaherty in the hotel room rented by Stieh. After the three men had sex with Conneall/s girlfriend, she and Conneally left the hotel. Shortly after leaving, the two realized their wallets were missing, and they returned to Stieh’s hotel room to search for them. Upon arriving, Conneally initiated a physical confrontation with Flaherty. In defense of himself and Flaherty, Stieh stabbed Conneally three times.

At trial, the State did not contest that the victim was significantly larger in stature than Stieh — at 5 feet 5 inches tall and 130 pounds — and Flaherty — at 5 feet 7 inches tall and 160 pounds. It was also uncontested that the victim was demeaning, demanding, and aggressive during the sexual encounter prior to the stabbing. Finally, of the four people directly involved in the incident, only the victim testified that he was not angry upon his return to the hotel. The other three testified that the victim was angry and that he forced entry into Stieh’s hotel room. The victim, however, testified that he only became angry upon finding the wallets under a trash can outside of the hotel room. Thus, there was a consensus among the parties and witnesses that the victim either arrived angry and looking for a confrontation or became angry and confrontational after locating the wallets that appeared as though they had been intentionally hidden.

The victim testified that while he and Flaherty were standing outside of the room, he found the wallets under a trash can. He became angry and shoved Flah-erty back inside the hotel room. The two fought, the victim shoving Flaherty, and Flaherty punching the victim. At some point during the skirmish, the victim realized he was bleeding and left the hotel room. The victim did not testify to a physical altercation with Stieh and did not recall being stabbed.

After the altercation and stabbing, two law enforcement officers arrived on the scene and interviewed Stieh and Flaherty. Both officers testified that Stieh admitted stabbing the victim. Officer Murray stated that Stieh told him he was scared and thought the victim was going to hurt Flah-erty. Stieh also told the officer the victim was “off the chain.” Officer Stewart testified Stieh told him that he had left the room after the victim and the victim’s girlfriend returned to look for the wallets and that when he returned to the room, the victim was attacking Flaherty. Stieh then told the officer that the victim charged him, that he told the victim to “get back,” that the victim charged again, and that Stieh stabbed him.

The defense presented the testimony of several witnesses, including the victim’s girlfriend, Flaherty, and Stieh. Conneally’s girlfriend testified that the victim was angry and yelling when they returned to the hotel. She stated the victim punched and shoved both Flaherty and Stieh. Although she did not see the actual stabbing, she testified she did see the victim and Stieh standing face to face.

Flaherty testified the victim was screaming that he was going to kill both Stieh and Flaherty for stealing the wallets. He stated the victim attacked him and dragged him from his bed. Flaherty yelled for Stieh’s help, and Stieh attempted to separate the victim and Flaherty. According to Flaherty, the victim then threw Stieh around the room and up against the door. At some point, the victim forced Stieh out of the room, and Flaherty did not see the stabbing.

Stieh testified the victim returned to the hotel screaming and threatening to kill Stieh. He confirmed Flaherty’s account of the events, adding that he attempted to leave the hotel room but was caught by the victim and they exited the room together. Stieh testified that upon seeing the wallets in the hallway, the victim yelled that he was going to kill them. Stieh again tried to escape, this time back into the room, but the victim caught him. The victim attempted to punch Stieh, and Stieh picked up a knife from the dresser and stabbed the victim. Stieh testified he was scared for his life.

After the defense rested, counsel for Stieh moved for judgment of acquittal on the basis that the State had failed to rebut Stieh’s theory of self-defense. In rebuttal, the State recalled officers Murray and Stewart. Both officers testified that during their respective interviews with Stieh and Flaherty, neither man claimed the victim threatened to kill them. Officer Stewart reiterated that Stieh told him the victim had been attacking Flaherty. The trial court again denied the motion, finding that the testimony was conflicting and that the issue was best left for the jury to determine.

This court reviews the denial of a motion for judgment of acquittal under a de novo standard. Behanna v. State, 985 So.2d 550, 555 (Fla. 2d DCA 2007). Although the question of whether a defendant acted in justifiable self-defense is generally a question for the jury, “[w]hen the defense presents a prima facie case of self-defense, the State has the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense.” Id. (citing Fowler v. State, 921 So.2d 708, 711 (Fla. 2d DCA 2006)). The State may meet its burden through rebuttal witnesses or by inference in its case-in-chief. Jenkins v. State, 942 So.2d 910, 914 (Fla. 2d DCA 2006). However, “[i]f the State fails to sustain this burden of proof, the trial court is duty-bound to grant a judgment of acquittal in favor of the defendant.” Id. (citing State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998)).

Stieh testified that he acted in self-defense and in defense of Flaherty. Flaherty’s testimony corroborated Stieh’s testimony, as did the testimony of two of the State’s witnesses. Stieh presented a pri-ma facie case of self-defense.

The applicable self-defense statute is section 776.013(3), Florida Statutes (2007), which states:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

The statutory presumption that a defendant has a reasonable fear of great bodily harm sufficient to justify the use of deadly force applies when

[t]he person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle.

§ 776.013(l)(a).

Here, Stieh had a right to be in the hotel room as he had lawfully rented the room for the night. The room qualified as a dwelling or residence for purposes of section 776.013. Only one witness, the victim, testified that he did not forcibly enter the hotel room in search of the wallets. Further, three of the -witnesses testified the victim forcibly removed the appellant from the room at one point during the altercation. Thus, it appears the presumption in section 776.013(l)(a) applies to Stieh. The State’s only rebuttal testimony corroborated that the victim was the aggressor and failed to rebut this presumption. See Hernandez Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986).

However, even if the presumption does not apply, the court erred in denying Stieh’s motion. The State failed to present evidence legally sufficient to overcome Stieh’s theory of self-defense. In fact, two of the State’s witnesses corroborated Stieh’s theory by testifying that immediately after the stabbing, Stieh told them he was acting in defense of Flaherty. Defense of another is permitted under section 776.013(B).

It was the State’s burden to overcome Stieh’s theory of self-defense and prove beyond a reasonable doubt that Stieh was not acting lawfully when he stabbed the victim. See Behanna, 985 So.2d at 555. As noted by this court in Jenkins, “self-defense cases are intensely fact-specific.” 942 So.2d at 916. But where the evidence “ ‘leaves room for two or more inferences of fact, at least one of which is consistent with the defendant’s hypothesis of innocence, [it] is not legally sufficient to make a case for the jury.’” Fowler, 921 So.2d at 712 (quoting Fowler v. State, 492 So.2d 1344, 1348 (Fla. 1st DCA1986)).

Here, although there was conflict among the testimony of the victim, Flaherty, the victim’s girlfriend, and Stieh, the conflict was relatively minor and did not rebut or otherwise foreclose Stieh’s theory of innocence. Therefore, the trial court should have granted Stieh’s motion for judgment of acquittal.

Reversed and remanded for discharge.

NORTHCUTT and DAVIS, 33., Concur.

      . Section 776.013(5)(a) defines a dwelling as "a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night." A residence is defined as "a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.” § 776.013(5)(b).


author: JACOBUS, J.

text:
    Norma HUGHES, Appellant/Cross-Appellee, v. Hermann KRUEGER, Appellee/Cross-Appellant.
    No. 5D09-1371.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.

      Robert L. Sirianni, Jr., Sunny A. Hillary, and Paetra T. Brownlee of Brownstone, P.A., Winter Park, for Appellant/Cross-Appellee.
    James Magee, Orlando, and Bill McCabe, Longwood, for Appellee/Cross-Appellant.
   JACOBUS, J.

Norma Hughes, the former wife, timely appeals the supplemental final judgment entered in this case. Hermann Krueger, the former husband, cross-appeals. The underlying action began as a petition by the Former Wife for the partition of two properties that she owned jointly with the Former Husband. By the time of trial, however, the parties had agreed to seek only an accounting of the income and expenses related to the properties. That accounting, performed by the trial court, is the subject of this appeal. The Former Wife argues that, in performing the accounting, the trial court erred in its interpretation of Paragraph 7 of the original divorce judgment, which awarded the parties joint ownership of the two properties. In his cross-appeal, the Former Husband contends the court erred by combining the properties and treating them as one for the purposes of the accounting. We affirm as to the issue raised by the Former Wife, but reverse as to the issue raised by the Former Husband.

The original final judgment of divorce was entered in December 1990. It awarded the Former Husband “all of the businesses known as K & K Foreign Car Parts, Inc., and K & K Motors, Inc.,” as well as the assets connected with those companies. In addition, the original judgment awarded the parties joint ownership of two parcels of commercial property that were part of the marital estate. The first property was located on Oakridge Road and was being leased to a commercial tenant. This was the “Oakridge Property.” The second property, located on Tiner Avenue and known as the “Tiner Property,” was used by the Former Husband to operate K & K. The original divorce judgment awarded these properties to the parties as tenants-in-common, with the Former Husband receiving a 75% ownership interest and the Former Wife receiving a 25% ownership interest. The parties were also ordered to apportion the rental income and expenses on that basis.

From the time of the divorce in 1990 until the time of this lawsuit in 2008, the two properties were used exactly as they were at the time of the divorce. That is, the Former Husband used the Tiner Property for his business, and the Oakridge property was leased to a commercial tenant. The only difference was that the parties’ son came to use part of the Tiner Property for an auto body business, of which the Former Wife was well aware.

The Former Husband never made any accounting to the Former Wife as to either property. The Former Husband did, however, pay the Former Wife a sum each month representing her share of the net rents that he received from the Oakridge Property. The Former Husband made these payments for almost 19 years after the divorce, periodically increasing the amounts over that time. At the trial of this cause in 2009, it was undisputed that the Former Husband’s payments to the Former Wife had totaled $51,900.

With regard to the Tiner Property, no rental income was ever collected. The Former Husband was in exclusive possession of that property and used it for his business. While the parties’ son also used part of the Tiner Property for his business, he was never requested to pay rent. The Former Wife, as a tenant-in-common, was never formally excluded from the property, though it is apparent that she and the Former Husband did not think highly of each other and she rarely visited the property. The trial court made a specific finding, supported by the evidence, that the Former Wife was never ousted from the Tiner Property.

In performing the accounting, the trial court combined the Oakridge and Tiner Properties, treating them as one for purposes of calculating each party’s share of income and expenses. The court concluded the Former Husband owed a total sum of $7,787 to the Former Wife for both properties. In reaching this number, the court used the actual rental income and expenses for the Oakridge Property, and it used the fair rental value and actual expenses for the Tiner Property (reduced by 30% for the portion occupied by the son).

It is the contention of the Former Husband in his cross-appeal that the properties should not have been treated as combined for the accounting. We agree. The difficulty with the trial court’s decision to treat the two properties as “combined” is that distinct legal principles apply to each parcel.

With regard to the Tiner Property, the law is clear that “a tenant in common who has exclusive possession of real property and who uses it for [his] own benefit without receiving any rents or profits therefrom, is not liable or accountable to a co-tenant out of possession unless such possession is adverse to or as a result of ouster.” Goins v. Goins, 762 So.2d 1049, 1050 (Fla. 5th DCA 2000). Here, there was no ouster of the Former Wife from the Tiner Property and the original divorce judgment did not give her exclusive possession. Accordingly, the Former Husband is deemed to have occupied the property on behalf of both parties, and the Former Wife was not entitled to rent except as an offset against any claim the Former Husband might make for contribution toward property expenses. See id.; see also Barrow v. Barrow, 527 So.2d 1373 (Fla.1988). The Former Husband never made a claim for property expenses against the Former Wife. The evidence of such expenses at trial was offered by the Former Husband to respond to the Former Wife’s claim for fair rental value. However, since the Former Husband never collected rent on the Tiner Property, the Former Wife was not entitled to an accounting of actual rents received on that property. Moreover, to the extent that the Former Wife’s claim for fair rental value prompted the Former Husband to request contribution for expenses, the fair rental value could be used as a credit or offset against the expenses, but not as an affirmative claim. Thus, at most, a net zero was awardable to the Former Wife for the Tiner Property.

That leaves us with the Oakridge Property, which continued to be leased to a third party for 19 years following the divorce. It is well settled that tenants-in-common share property expenses in proportion to their ownership interest, and that one “cotenant is accountable to the other cotenant only for actual rent received from third parties.” Fischer v. Fischer, 503 So.2d 399, 401 (Fla. 3d DCA 1987); see also Goolsby v. Wiley, 547 So.2d 227, 229 (Fla. 4th DCA 1989). Thus, with regard to the accounting on the Oakridge Property, the Former Wife was entitled to her proportionate share of actual rental income, less her proportionate share of necessary expenses. The parties stipulated that the actual rent received on the Oakridge Property in the years following the divorce totaled $205,338. The expenses on the Oakridge Property totaled $113,798.80, leaving a net income of $91,539.20. The Former Wife’s 25% share of the net income would be a sum of $22,884.80, yet she had received a total 'of $51,900 in payments from the Former Husband over the years. Thus, the Former Wife received an excess of $29,051.20, which is owed to the Former Husband.

Accordingly, we reverse in part and remand with directions to the trial court to enter a judgment in the amount of $29,051.20 in favor of the Former Husband, Hermann Krueger, and against the Former Wife, Norma Hughes. We affirm the supplemental final judgment in all other respects.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

EVANDER and COHEN, JJ., concur.

      . We reject without further comment the Former Wife's argument on appeal that the trial court erred in its interpretation of Paragraph 7 of the original divorce judgment (which defined the parties’ ownership interests in the properties).

      . That the parties' son used part of the Tiner Property is of no moment, since they both assented to him not paying rent.

      . The former husband is not entitled to reimbursement for the 1990 property taxes.


author: PER CURIAM.

text:
    Richard ROBERTS, Individually and as Personal, etc., Appellant, v. T.D.T., INC. and Jason Tubbs, Appellee.
    No. 5D09-1942.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.

      Richard A. Staggard, of Farah & Farah, P.A., Jacksonville, for Appellant.
    Candy L. Messersmith and David B. Shelton, of Rumberger, Kirk & Caldwell, A Professional Association, Orlando, for Appellee.
   PER CURIAM.

Richard Roberts [“Roberts”], as personal representative of the estate of Keith Roberts, appeals a final judgment rendered pursuant to a jury verdict awarding Roberts and his wife each $15,000 for past pain and suffering, but nothing for future pain and suffering. Roberts also appeals the denial of his motion for additur or, in the alternative, motion for new trial. On appeal, Roberts argues that the jury award of zero future noneconomic damages was against the manifest weight of the evidence and that a series of erroneous rulings by the lower court deprived Roberts of a fair trial. We affirm.

After examining the testimony and evidence admitted at trial, we see no reversible error on the damages issue. Nor do we find that the trial court reversibly erred in the evidentiary issues raised on appeal or the complaint about statements made by defense counsel during opening or closing argument. The failure to allow substitution of the plaintiff’s liability expert at the eleventh hour was not, under the circumstances, an abuse of discretion.

AFFIRMED.

MONACO, C.J., GRIFFIN and TORPY, JJ., concur.


author: GRIFFIN, J.

text:
    MARION COUNTY SHERIFF’S OFFICE, Appellant, v. Marianne BEAUREGARD as Personal, etc., Appellee.
    No. 5D10-214.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.
    Ronald W. Slonaker and Bureus Wayne Argo, of Law Office of Wayne Argo, PA, Ocala, and Michael H. Bowling, of Bell & Roper, P.A., Orlando, for Appellant.
    Jessie L. Harrell and Bryan S. Gowdy, of Creed & Gowdy, P.A., Jacksonville, for Appellee.
   GRIFFIN, J.

In this automobile accident case, H. Edward Dean, in his official capacity as Sheriff of Marion County [“Sheriff’], appeals the trial court’s entry of final judgment in favor of Ronald Avallone [“Avallone”] and his wife, Marianne Beauregard [“Beauregard”] [collectively “Appellees”]. Sheriff argues that the trial court erred by denying both his motion for remittitur or new trial and his subsequent motion for new trial. With respect to the motion for re-mittitur or new trial, Sheriff contends that the jury awards for future economic damages as well as past and future non-eeo-nomic damages are excessive and not supported by the evidence presented at trial. Additionally, with respect to the motion for new trial, Sheriff contends that Appellees’ trial counsel made prejudicial and inflammatory statements during opening and closing and that Avallone was improperly coached during his cross-examination. Appellees concede on appeal that the award of future economic damages was not supported by evidence actually submitted at trial, and the parties agree that we should remand this issue to the trial court for entry of an amended judgment awarding future economic damages in the amount of $15,900. As for the remaining elements of damages, we have made a detailed examination of the evidence and testimony concerning Mr. Avallone’s post-accident medical history, status and care, find no error, and affirm. We also affirm on the remaining issues without comment.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO, C.J., and TORPY, J., concur.


text:
    Ronald M. TEAGUE, Appellant, v. Sheryl D. GIRTMAN, Appellee.
    No. 5D10-1180.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.
    Ronald Teague, Orlando, pro se.
    Tenesia C. Hall, Orlando, for Appellee.
   PER CURIAM.

In this paternity case, the father appeals two final judgments establishing shared parental responsibility, time-sharing, child support and back child support. Although he raises a number of issues, we need only address two. First, the father argues, and the mother correctly concedes, that reversal and remand for a new hearing are required because the father timely objected to the trial court’s referral of the case to a magistrate. Second, we hold that the trial court properly denied the father’s motion for recusal (disqualification) as legally insufficient. The motion was legally insufficient because it alleged improprieties that occurred at a hearing almost two months before the motion was filed, well beyond the ten-day time limit for such motions required by Florida Rule of Judicial Administration 2.330(e).

Accordingly, we reverse and remand for a new hearing before the trial court.

REVERSED AND REMANDED.

SAWAYA, LAWSON and JACOBUS, JJ., concur.

      . The father filed his objection eleven days after the order of referral was mailed to him from the court. The magistrate (and ultimately, the trial court) concluded that the objection was untimely based upon the ten-day deadline for objection found in Florida Family Law Rule of Procedure 12.490(b). This conclusion was erroneous because the referral order was served on the father by mail. Consequently, five days should have been added to the ten-day time limit to respond. See Fla. R. Civ. P. 1.090(e); Calderon v. Calderon, 26 So.3d 688 (Fla. 5th DCA 2010) (reversing final dissolution judgment because husband’s objections to magistrate’s report were timely under mailbox rule); Christ v. Christ, 939 So.2d 256 (Fla. 1st DCA 2006) (reversing order denying modification of visitation based on timely objection to magistrate referral).


author: DAVIDSON, L., Associate Judge.

text:
    Bernadette LAURITSEN, as Personal, etc., et al., Appellant, v. Brian WALLACE, Appellee.
    No. 5D10-1020.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.
    Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr. PL, Maitland, for Appellant.
    Howard Marks, Winter Park, for Appel-lee.
   DAVIDSON, L., Associate Judge.

The issue in this appeal is whether a decedent is permitted, through his will, to forgive a debt owed to him when his estate is not solvent to pay the debts and the costs of administration of his estate. The probate court’s final order determined that the decedent’s one-half interest in a promissory note payable to him was cancelled upon his death and was not an asset of the estate because the decedent forgave the debt in his will. We reverse.

The events surrounding the decedent’s death were tragic. The decedent, William C. Wallace, killed his incapacitated wife, Barbara J. Wallace, his stepdaughter, Sandra Leone, and then himself. Bernadette Lauritsen, the daughter of the decedent, was appointed personal representative of her father’s estate. Several of the decedent’s children challenged their father’s will, which resulted in protracted and expensive litigation. The personal representative retained an attorney to represent the estate in the litigation, and the probate court appointed an attorney to be the curator for the estate. The only asset of decedent’s estate was one-half the value of a promissory note and mortgage held on real property. Brian A. Wallace, the son of the decedent and his wife Barbara, executed this promissory note and mortgage prior to the execution of the decedent’s will. The trial court found the joint ownership of the note and mortgage was severed into equal shares as tenants in common when the deaths of the decedent and his wife were determined to be simultaneous. § 782.601(3), Fla. Stat. (2007). The decedent’s will, which was executed eleven days before his death, expressly forgave his one-half ownership of the note and related mortgage. The other one-half of the note and mortgage owned by decedent’s wife’s estate was not forgiven in her will.

Several claims were filed against the estate, including a credit card debt and wrongful death claims filed by the estates of the decedent’s wife and step-daughter. The estate also incurred the curator’s fees and costs, the personal representative’s fees and the personal representative’s attorney’s fees, which were substantial due to the litigation involved in probating the decedent’s will. The decedent’s one-half interest in the promissory note was the only non-exempt asset available to pay the estate’s administrative costs, debts, and expenses.

The personal representative filed in the probate court a Motion to Determine Ownership of the Note and Status of Forgiveness under Decedent’s Will. The personal representative argued that the decedent’s one-half ownership of the note must be utilized to pay the estate’s debts, taxes, and expenses before the balance could be forgiven. The probate court ruled that the note was forgiven at the moment of the decedent’s death.

There are no disputed issues of fact, and the wording of William C. Wallace’s will is clear and unambiguous. William C. Wallace intended to forgive his son, Brian Wallace’s debt if Brian had not satisfied the note upon William’s death. However, it is a question of law as to whether the decedent’s forgiveness of the promissory note in his will could legally take effect before payment of the obligations and expenses of the estate. The standard of review is de novo. Lumbert v. Estate of Carter, 867 So.2d 1175, 1176 (Fla. 5th DCA 2004); Timmons v. Ingrahm, 36 So.3d 861, 864 (Fla. 5th DCA 2010).

The promissory note executed by Brian Wallace to his parents was unconditional. There was no provision in the note that Brian’s obligation was to be cancelled upon the death of his parents, the holders of the note. Consequently, the only legal mechanism that could be utilized to achieve the decedent’s intention to forgive the promissory note and mortgage was for the will to be admitted into probate. The forgiveness of the note therefore is unquestionably a testamentary devise. Furthermore, Arti-ele III of the decedent’s will specifically designates that his forgiveness of the promissory note executed by his son, Brian A. Wallace, is a bequest.

The decedent’s first direction in his will, Article I, instructs his personal representative to pay all of the decedent’s debts and expenses. The decedent’s devises are made in Articles II, III, IV, and V, which follow his first direction. The note is the only asset of the estate and it can only be forgiven to the extent that it is not needed to pay the estate’s debts and expenses.

Several sections of the probate code support the conclusion that a devise cannot be elevated over administrative expenses and the rights of creditors. Section 731.201(10), Florida Statutes (2007), provides that “[a] devise is subject to charges for debts, expenses, and taxes[.]” Section 738.805(1) provides that “[fjunds or property designated by the will shall be used to pay debts, family allowance, exempt property, elective share charges, expenses of administration, and devises to the extent the funds or property is sufficient.” If no provision is made or the designated fund or property is insufficient, the statute sets forth a priority scheme on how devises abate. § 733.805, Fla. Stat. (2007). Section 733.707(1) provides that “[t]he personal representative shall pay the expenses of the administration and obligations of the decedent’s estate in the following order....” The statute then identifies the eight classes of expenses and obligations and the order in which each is paid. The ruling by the lower court elevates the gift of forgiveness of an obligation to a superi- or status over the rights of legitimate creditors of the decedent, contrary to the priorities established in the Probate Code.

Appellee asserts that section 673.6041(l)(b), which governs negotiable instruments, permits the decedent to discharge his son’s obligation on the note. Section 673.6041(l)(b) provides that a person entitled to enforce an instrument may discharge the obligation by “agreeing not to sue or otherwise renouncing rights against the party by a signed writing.” Appellee argues that the decedent’s will was a signed writing that met the requirements of the statute. However, the signed writing in this case, the will, is not an isolated instrument. It is an instrument that is dependent upon the Probate Code for its authority. Because the note was forgiven by operation of a will, it is a testamentary devise that is subject to the dictates of the Probate Code.

Appellee relies on the case of In re Estate of Whitley, 508 So.2d 455 (Fla. 4th DCA 1987), to support his position that the decedent could forgive the promissory note through his will. In Whitley, 508 So.2d at 456, the Fourth District Court of Appeal evaluated whether a promissory note executed by the decedent’s debtor was an asset of a decedent’s estate. The promissory note was executed by Fridhilda Amman and made payable to the decedent. Id. The note contained a clause which stated that if demand for payment had not been made by the payee at the time of his death, the payee waived his right to collect the unpaid principal amount of the note, and that the parties agreed the note would then be null and void. Id. The note was signed by the payee, but it was not signed by the decedent. Id. The Fourth District held the debt was cancelled upon the decedent’s death. Id.

Whitley is distinguishable from the facts in the instant case in several aspects. In Whitley, the language of forgiveness was set forth in the note itself. The language documented the agreement of the parties at the time the note was executed. As the Whitley court noted, “The payee, by accepting the note and the conditions on it, accepted the provision thereon and his estate is bound by them.” Id. Finally, and most significantly, like this case, the act of forgiveness in Whitley is not dependent on the validation of a will by the act and order of a court admitting the will to probate. If William C. Wallace and his wife had placed a provision in the note which cancelled the debt upon their deaths, then the forgiveness would have been a valid cancellation of the note. This comports with Whitley and the requirements of section 673.6041(1)(b) that a debt may be cancelled by a signed writing subject to other prohibitions. §§ 726.105, 739.402, Fla. Stat. (2007); see also In Re Smith’s Estate, 244 Iowa 866, 58 N.W.2d 378 (Iowa.1953).

Appellee argues that Florida law permits various types of ownership which, upon a decedent’s demise, automatically transfers assets to the surviving owner or designated beneficiary outside of the reach of creditors of the decedent’s probate estate. See § 655.79, Fla. Stat. (2007) (permitting bank accounts to be maintained and held in joint tenancy or by the entire-ties, which are not deemed to be assets of a decedent’s estate); § 319.22(2)(a)l., Fla. Stat. (2007) (ownership of a motor vehicle or motor home passes outside probate to owner or co-owner upon the death of the other); § 655.82, Fla. Stat. (2007) (bank account may be designated to be paid on death and excluded as an asset of the decedent’s probate estate); § 711.509, Fla. Stat. (2007) (allows for securities to be transferred upon death by non-testamentary transfer). However, these are non-testamentary transfers of property. The transfer of property takes place wholly independent of a will. These assets never become part of a decedent’s estate, as the note executed by Brian Wallace did.

There are no Florida cases that address the question of whether the release and forgiveness of an obligation in a will operates to defeat the payment of obligations and expenses of a decedent’s estate. However, other jurisdictions have considered the question, and have uniformly concluded that forgiveness of a debt in a will occurs only after creditors and expenses are paid. The Appellee has cited no cases, and the court has found none, to the contrary.

In re Passoff's Estate, 359 N.J.Super. 112, 819 A.2d 26 (2002), is the most recent out-of-state case addressing this issue. In Passoff, 819 A.2d at 27, the decedent’s will expressly forgave a debt, the balance due under a mortgage note. However, as in the instant case, the estate was not solvent to pay its debts. Id. The maker of the note in Passojf advanced the same argument as the Appellee, that the debt vanished upon the probating of the decedent’s will. Id. The Passojf court held that an estate “must honor its own debts, as well as any statutory obligations, before a forgiveness of any debts may take effect. This approach springs, no doubt, from the ancient maxim that ‘a man must be just before he is generous.’ ” Id. at 118, 819 A.2d 26; see also Van Vechten v. Van Veghten, 8 Paige Ch. 104, 119, 4 N.Y. Ch. Ann. 362 (N.Y.1840) (testator released his son and son-in-law from debts due from them to him; court held all debts due from debtors and which answered description contained in release clause “are discharged; except as against creditors of the estate who will have a right to resort to the same [discharged debts] in case of a deficiency of other property to pay the debts”); Dibble v. Richardson, 171 N.Y. 131, 63 N.E. 829, 831 (1902) (testator forgave and released bond and mortgage in will and codicil; court concluded “the bond and mortgage ceased to be operative upon the probate of the will and codicil, except so far as it might become necessary to enforce them in order to meet any deficiency of assets for the payment of debts, etc.”); Hobart v. Stone, 27 Mass. 215, 223 (Mass.1830) (“[T]he release of a debt in terms, by will, does not extinguish the debt, so but that it remains as assets for the payment of the testator’s debts.”).

Therefore, we hold that a decedent can release a debt owed to the decedent through a testamentary devise only to the extent that the decedent’s estate is solvent to pay all debts and administrative costs of the estate.

REVERSED and REMANDED for further proceedings consistent with this opinion.

TORPY and COHEN, JJ., concur.

      . The will provided, in relevant part, that:
      In the event that my wife, BARBARA J. WALLACE, shall survive me, I direct that the balance due to me as of the date of my death on the promissory note executed by my son, BRIAN A. WALLACE, and held on the real property located at 575 Silverton Street, Orlando, Florida, be discharged and that my interest in said note be cancelled by my personal representative and delivered to my son, BRIAN A. WALLACE, if he shall survive me; if he does not survive me, then to the personal representative of his estate. If the aforesaid indebtedness has been paid in full, discharged, or transferred by me, this bequest shall fail, and resort shall not be had to any general assets of my estate for its fulfillment.
      In the event that my wife, BARBARA J. WALLACE, shall predecease me, then I direct that one-half (1/2) of the total balance due on the promissory note referenced herein as of the date of my death be discharged as set forth above.

      . Black's Law Dictionary (9th ed. 2009) defines “testamentary disposition” as "[a] disposition to take effect upon the death of the person making it, who retains substantially entire control of the property until death.” "Disposition” is defined as "[t]he act of transferring something to another's care or possession, esp. by deed or will, the relinquishing of property.” Black's Law Dictionary (9th ed. 2009).

      . " 'Devise,' when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will or trust. The term includes ‘gift,’ 'give,' ‘bequeath,’ ‘bequest,’ and ‘legacy.’ ” § 731.201(10), Fla. Stat. (2007).

      . The personal representative shall pay the expenses of the administration and obligation of the decedent’s estate in the following order:
      (a) Class 1. — Costs, expenses of administration, and compensation of personal representatives and their attorneys fees and attorneys fees awarded under s. 733.106(3).
      (b) Class 2. — Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian, the personal representative, or any other person, not to exceed the aggregate of $6,000.
      (c) Class 3. — Debts and taxes with preference under federal law, and claims pursuant to sections 409.9101 and 414.28.
      (d) Class 4. — Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.
      (e) Class 5. — Family allowance.
      (f) Class 6 — Arrearage from court-ordered child support.
      (g) Class 7 — Debts acquired after death by the continuation of the decedent’s business, in accordance with section 733.612(22), but only to extent of the assets of that business.
      (h) Class 8 — All other claims, including those founded on judgments or decrees rendered against the decedent during the decedent's lifetime, and any excess over the sums allowed in paragraphs (b) and (d). § 733.707(1), Fla. Stat. (2007).


author: ORFINGER, J.

text:
    James A. MIX Individually and as Personal, etc., Appellant/Cross-Appellee, v. ADVENTIST HEALTH SYSTEM/SUNBELT, INC., etc., Appellee/Cross-Appellant.
    No. 5D10-134.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.

      Mark V. Morsch, of The Morsch Law Group, Winter Park, for Appellant/Cross-Appellee.
    Robin D. Black and J. Charles Ingram, of Estes, Ingram, Foels & Gibbs, P.A., Orlando, for Appellee/Cross-Appellant.
   ORFINGER, J.

James A. Mix, individually and as personal representative of the Estate of Arlene Mendez Mix (“Mix”), appeals an order of the trial court awarding attorney’s fees to Adventist Health System/Sunbelt, Inc. d/b/a Florida Hospital Orlando (“Florida Hospital”) under section 768.79, Florida Statutes (2005). Florida Hospital cross-appeals, arguing that it is entitled to an equitable lien on the funds Mix recovered from other defendants in order to secure the payment of the attorney’s fees and costs it was awarded. Because we find Florida Hospital’s proposals for settlement failed to “state with particularity all [relevant] nonmonetary terms” as required by Florida Rule of Civil Procedure 1.442, and thus were ambiguous, we reverse the final judgment awarding attorney’s fees to Florida Hospital. We affirm as to the issues raised in Florida Hospital’s cross-appeal, to the extent those issues are not rendered moot by this decision.

James and Arlene Mix filed a medical malpractice lawsuit against several healthcare providers, including Florida Hospital. During the course of the litigation, Florida Hospital submitted separate proposals for settlement to Mr. and Mrs. Mix who rejected them. After Florida Hospital prevailed at trial, it timely moved for an award of costs and attorney’s fees, the latter being predicated on its rejected proposals for settlement. Florida Hospital’s proposals for settlement, provided:

PROPOSAL FOR SETTLEMENT

COMES NOW the Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA HOSPITAL ORLANDO, by and through its undersigned attorney and pursuant to Fla. R. Civ. Pro., 1.442 and § 768.79, Florida Statutes, hereby make(s) this Proposal for Settlement to Plaintiff, ARLENE MENDEZ MIX [or JAMES A. MIX], in the total amount of Five Hundred and 00/100 ($500.00). This Proposal for Settlement is made to ARLENE MENDEZ MIX [JAMES A. MIX] to settle any and all claims of any type whatsoever, made or which could have been made against Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA HOSPITAL ORLANDO, in the above-referenced action. This Proposal for Settlement includes all pre and post settlement, interest, fees and costs incurred or to be incurred by Plaintiff. Plaintiff is to satisfy any liens or claims for medical or disability payments which are reimbursable. Attorney’s fees are not part of Plaintiffs legal claim. The non-monetary terms of this Proposal for Settlement are execution by Plaintiff, ARLENE MENDEZ MIX [JAMES A. MIX], in favor of Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA HOSPITAL ORLANDO, all of the following settlement documentation, to be prepared by counsel for Defendant:
1. Release of All Claims as to the Defendant making this Proposal
2. Joint Stipulation for Dismissal with Prejudice of this Defendant
This proposal is being made by this Defendant in good faith, at least 90 days after the commencement and service of this action and at least 45 days before the commencement of the docket on which this action is set for trial.

Mix argues that the proposals for settlement were ambiguous because Florida Hospital did not include a summary of the proposed release or attach the actual release to the proposal offers, thus failing to satisfy the particularity requirement outlined in State Farm Mutual Automobile Insurance Co. v. Nichols, 932 So.2d 1067 (Fla.2006).

Section 768.79 authorizes the parties to any civil action for damages to make an offer of judgment or demand for judgment, and governs the procedures whereby attorney’s fees may be awarded to the successful offering or demanding party. The statute is implemented by Florida Rule of Civil Procedure 1.442. See Campbell v. Goldman, 959 So.2d 223 (Fla.2007); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003).

We review a trial court’s ruling on a motion to award attorney’s fees and costs pursuant to the offer of judgment statute de novo. See Sparklin v. S. Indus. Assocs., 960 So.2d 895, 897 (Fla. 5th DCA 2007). Rule 1.442 requires that a settlement proposal name the party making the proposal and the party to whom the proposal is being made; that it identify the claims that the proposal is attempting to resolve; and that it state with particularity any relevant conditions and all nonmone-tary terms. Fla. R. Civ. P. 1.442(c)(2)(A)-(D). The rule “requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Nichols, 932 So.2d at 1079. “A proposal for settlement is intended to end judicial labor, not create more.” Id. at 1078 (quoting Nichols v. State Farm Mut., 851 So.2d 742, 746 (Fla. 5th DCA 2003)). A proposal does not satisfy the “particularity” requirement if an ambiguity within the proposal could reasonably affect the offer-ee’s decision. Id. at 1079. Because the offer of judgment statute and related rule must be strictly construed, an ambiguous proposal is not enforceable. Stasio v. McManaway, 936 So.2d 676, 678 (Fla. 5th DCA 2006); Hibbard ex rel. Carr v. McGraw, 918 So.2d 967, 971 (Fla. 5th DCA 2005). For the purpose of construing the particularity requirement of rule 1.442, an ambiguity is defined as “the condition of admitting more than one meaning.” Saenz v. Campos, 967 So.2d 1114, 1117 (Fla. 4th DCA 2007) (citation omitted).

Florida Hospital’s proposals for settlement provided, among other things, that Mr. and Mrs. Mix would be required to execute releases to be prepared by its attorneys. The proposed releases were not attached to the proposals for settlement nor was a summary of the contents of the releases included. A proposal for settlement can contain either the proposed release or a summary of the terms of the proposed release, provided that the summary eliminates any reasonable ambiguity about its scope. Nichols, 932 So.2d at 1079. The proposals in this case did neither. Indeed, at oral argument, Florida Hospital’s attorneys candidly admitted that at the time Florida Hospital submitted the proposals for settlement to the Mixes, it utilized a release that ran four pages long. We can only speculate about what the four-page release would contain and what it would have achieved that dismissing Florida Hospital with prejudice would not have accomplished.

For these reasons, we conclude that Florida Hospital’s proposals were ambiguous and unenforceable. As a result, the final judgment awarding attorney’s fees is reversed. The award of costs is affirmed.

AFFIRMED in part; REVERSED in part.

TORPY and JACOBUS, JJ„ concur.

      . Originally, James and Arlene Mix brought a claim for medical negligence against the multiple defendants. However, at the time of trial, Arlene Mix had passed away, and James Mix as personal representative for the estate of Arlene Mix was substituted as plaintiff for Arlene Mix.

      . Florida Hospital was awarded $29,499.89 for costs and $203,575.50 for attorney's fees.


author: MORRIS, Judge.

text:
    CITY NATIONAL BANK OF FLORIDA and Citivest Construction Corporation, Appellants, v. CITY OF TAMPA, a Florida municipal corporation, Appellee.
    No. 2D10-332.
    District Court of Appeal of Florida, Second District.
    April 6, 2011.

      Scott A. McLaren of Hill, Ward & Henderson, P.A., Tampa, and Thomas A. Burns of Hill, Ward & Henderson, P.A., Tampa (withdrew after briefing), for Appellants.
    Chip Fletcher, City Attorney, Jerry M. Gewirtz, Chief Assistant City Attorney, and Melvia B. Green, Assistant City Attorney, Tampa, and John A. Schifino and Allyson L. Lazzara of Williams, Schifino, Mangione & Steady, Tampa, for Appellee City of Tampa.
   MORRIS, Judge.

City National Bank of Florida and Citi-vest Construction Corporation (the property owners) appeal a final judgment entered in favor of the City of Tampa (the City). This case involves the property owners’ application for a certificate of appropriateness (COA) on a proposed condominium development which — after protracted litigation — was eventually granted by the City. The basis for the litigation was a claim that the property owners’ equal protections rights were violated because the City treated other similarly situated property owners more favorably during the zoning process and, as a result, the property owners here suffered damages. The City filed a motion to dismiss the property owners’ third amended complaint which the circuit court granted with prejudice. In doing so, the circuit court held, in relevant part, first that “section 1983 claims are barred as the interpretation of a zoning code will not support an action pursuant to 42 U.S.C. section 1983” and second that “there is no federally protected interest in a zoning decision.” For the reasons set forth herein, we disagree with the circuit court and we therefore reverse and remand.

I. Background

The property owners purchased a 1.76 acre vacant parcel located at the corner of Bayshore Boulevard and DeSoto Avenue in Tampa (the property), with the intent to construct a high-rise condominium project. Since 1987, the property has been classified as RM-75 high-rise zoning allowing for seventy-five condominiums per acre. This particular zoning classification is the most intense high-rise zoning available within the city and would allow for up to eighty-eight units on the property.

At the time the property was zoned RM-75, the City also chose to include it within the Hyde Park Historic District which meant the property would be subject to the Architectural Review Commission (ARC). Before a construction project can proceed on property which is subject to the ARC’s control, the ARC must issue a COA determining that the proposed construction project meets specified aesthetic guidelines. The process of obtaining a COA is a separate and distinct process from zoning classifications.

The “building envelope” within which a structure can be erected on property zoned as RM-75 is determined by using a specified height/setback ratio which is explained in the City’s zoning code. Here, the City approved the property owners’ initial plan to build a condominium which was twenty-eight stories in height, but the property owners voluntarily scaled the project back to twenty-four stories in an effort to appease opposition from the Historic Hyde Park Neighborhood Association (the Association).

When the property owners sought the COA necessary to begin building, the ARC administrator informed them that as a condition precedent to applying for a COA, they were required to obtain certification from the City’s zoning administrator that the proposed project complied with the requirements for RM-75 zoning. However, the ARC administrator also told the property owners that the criteria for obtaining a COA was based only on the appearance of the building and that it was not in any way based on the confirmation regarding compliance with the zoning ordinances. And the property owners were not informed that the ARC administrator was a dues-paying member of the Association.

In over 10,000 similar situations in the past — before the property owners submitted their plans to the City’s zoning administrator — the City had interpreted the zoning ordinances for a corner property like the one at issue here to require setbacks of twenty-five feet in the front yard, twenty feet in the rear yard, and seven feet in the side yard. However, apparently in response to pressure from the Association which had become openly opposed to the proposed project, the City zoning administrator — for the first time ever — interpreted the applicable zoning ordinances to require two twenty-five-foot front-yard setbacks. Based on this change in interpretation in conjunction with the height/setback ratio, the permissible height of the proposed project was reduced.

Seeking to remedy the situation, the City’s planning staff recommended to the planning commission that the double front-yard setback interpretation be eliminated by an amendment to the zoning ordinances. The planning commission voted unanimously to approve such an amendment, and it was presented to the Tampa City Council for final approval and implementation. At the required first reading of the proposed amendment, no Association members were present and the Tampa City Council voted unanimously to proceed, without revisions, to the second reading. The meeting at which the second reading was conducted was different. Many Association members and area residents attended and voiced their overwhelming opposition to the proposed amendment. Consequently, no vote was taken and the meeting was continued until another day.

At a third meeting, the Association suggested a different amendment which would impose the double front-yard setback only to the property in question but which would not impose the double front-yard setback on any other property thereafter. The city council voted to pass the amendment as proposed by the Association.

The property owners subsequently redesigned their condominium project in light of the double front-yard setback requirement and resubmitted their plans to the zoning administrator. The zoning administrator confirmed the property owners were in compliance with RM-75 zoning so the property owners filed their application for a COA.

Prior to the ARC’S final hearing on the COA application, the property owners met with ARC representatives on at least nine occasions to review the proposed project. Although some concerns were raised by ARC representatives (and addressed by the property owners), no one raised the height of the proposed condominiums as a concern.

At the final hearing on the COA application, many Association members were present and voiced their objections to the height of the condominiums. After listening to the objections, one ARC board member moved to deny the COA application. Although it was unknown by the property owners at the time, this same board member was a member and former president of the Association. The board member’s motion passed, and the COA application was denied.

Following the denial of their COA application, the property owners once again redesigned their project, reducing the height of the condominiums to twenty stories. But the ARC rejected the property owners’ COA application a second time on the basis that the redesign was not significantly different. The property owners then appealed the ARC’S denial of their COA application to the city council. But at the meeting to address their appeal, Association members attended and again voiced their opposition. The appeal was unanimously denied by the city council.

The property owners then sought relief in the courts, and notably, during the litigation, the property owners learned that the City — while denying the property owners’ application to build a 246-foot-high structure on the property — had approved other high-rise projects within the Hyde Park Historic District which were 235, 290, and 310 feet tall. The history of this litigation is protracted and complex, but it ultimately resulted in the property owners’ third amended complaint. In that complaint, the property owners sought damages and attorneys’ fees, in part, for violations of their equal protection rights pursuant to 42 U.S.C. section 1983. Although the circuit court dismissed the entire third amended complaint with prejudice, this appeal is limited to the dismissal of count II, dealing with the equal protection issue.

II. Analysis

We review de novo a circuit court’s order on a motion to dismiss. See Holden v. Bober, 39 So.3d 396, 400 (Fla. 2d DCA 2010).

a. A claim that a party’s equal protection rights have been violated during the zoning process is cognizable pursuant to section 1983.

In dismissing count II, the circuit court determined that 42 U.S.C. section 1983 does not permit a plaintiff to bring an action based on the interpretation of a zoning code. In so holding, the circuit court cited to Paedae v. Escambia County, 709 So.2d 575 (Fla. 1st DCA 1998), and Jacobi v. City of Miami, 678 So.2d 1365 (Fla. 3d DCA 1996). However, those cases dealt with substantive due process claims rather than equal protection claims and, therefore, reliance on these decisions was in error. Federal courts have acknowledged that a property owner may raise an equal protection claim based on the application of a land use regulation. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295 (11th Cir.2006); Eide v. Sarasota County, 908 F.2d 716, 722 (11th Cir.1990); Fry v. City of Hayward, 701 F.Supp. 179, 181 (N.D.Cal.1988). Federal courts also acknowledge that a plaintiff may allege that it is a “class of one,” that is, that it “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); see also Flying J Inc. v. City of New Haven, 549 F.3d 538, 546 (7th Cir.2008).

Here, the property owners alleged that their proposed project was singled out and treated differently from other similarly situated properties with no rational basis offered by the City, thereby violating their equal protection rights. Such a claim is cognizable under section 1983. See Primera Iglesia Bautista Hispana of Boca Raton, Inc., 450 F.3d at 1304-1306; Cordi-Allen v. Conlon, 494 F.3d 245 (1st Cir. 2007); LaTrieste Rest. & Cabaret Inc. v. Village of Port Chester, 40 F.3d 587 (2d Cir.1994).

Yet the City urges that there are other reasons to affirm. Specifically the City contends that an earlier determination by the circuit court, sitting in its appellate capacity, is sufficient to bar the section 1983 claim. We must therefore address that contention before we can determine whether a reversal is required on that basis.

b. The circuit court’s determination that competent, substantial evidence supported the City’s denial of the COA is not sufficient to bar the equal protection claim, and the law of the case doctrine does not apply.

In the initial stages of this litigation, the property owners sought certiorari review in the circuit court on the issue of whether there was competent, substantial evidence to support the denial of their application for a COA and whether, in denying the application, the City failed to apply the correct law. The circuit court determined that although there was competent and substantial evidence to support the city council’s decision, certiorari relief was still warranted because the city council allowed one portion of the zoning ordinances and the Hyde Park ARC Guidelines to 'trump the zoning administrator’s recommendations and another portion of the zoning ordinances. The circuit court held that in doing so, the city council departed from the essential requirements of the law. The circuit court’s determination was approved on second-tier certiorari review by this court. See City of Tampa v. City Nat’l Bank of Fla., 974 So.2d 408 (Fla. 2d DCA 2007).

Now, the City argues that the circuit court’s finding in the certiorari action that the City’s denial was supported by competent and substantial evidence is legally dis-positive of whether the City had a rational basis for the denial under an equal protection analysis. The City cites MetroPCS Inc. v. City & County of San Francisco, Co., No. C 02-3442 PJH, 2006 WL 358034 (N.D.Cal. Feb. 15, 2006), as support for its argument.

MetroPCS involved the company’s efforts to obtain conditional use permits in order to install wireless communications facilities. Id. at *1. Although the permits were initially approved, the approvals were overturned by the board of supervisors after several residents complained. Id. After failing to obtain the permits, Me-troPCS filed suit, but on cross-motions for summary judgment, the district court granted the City and county’s motion on all but one ground. Id. Then, on appeal, the Ninth Circuit Court of Appeals affirmed except as to the question of whether the City unreasonably discriminated against MetroPCS. Id. The Ninth Circuit found triable issues of fact on that issue and remanded the case. Id. On remand, the district court noted that although the Ninth Circuit had previously found triable issues of fact on the equal protection claim, MetroPCS presented no “argument or authority as to why, or how, those triable issues counsel against a finding of rational basis.” Id. at *4. Instead, MetroPCS was arguing that the mere existence of triable issues was the proof of discrimination “without tailoring its argument to the ‘rational basis’ inquiry required by equal protection analysis.” Id. Accordingly, the district court held that the substantial-evidence finding by the Ninth Circuit “also supports a finding that the [zoning] [b]oard had a rational basis for its actions.” Id.

We do not find MetroPCS persuasive. This case does not involve a motion for summary judgment. Nor does this case involve bare allegations of discriminatory treatment. Rather, this case involves detailed allegations of disparate treatment among similarly situated properties. We must therefore address whether the circuit court — sitting in its appellate capacity— already decided whether a viable equal protection claim had been stated and, in so doing, whether the law of the case doctrine applies to preclude this claim.

The City argues that when the circuit court determined that the City’s denial was supported by competent, substantial evidence, that finding became the law of the case and, therefore, there can be no determination now that the city council’s denial of the COA was arbitrary and capricious for purposes of a section 1983 action.

“Where .successive appeals are taken in the same case ... the doctrine of the law of the case applies.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (internal citation omitted).

The doctrine of the law of the case is ... a principle of judicial estoppel, but it is more limited and more flexible in scope. The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the circuit court, through all subsequent stages of the proceedings. Under the law of the case doctrine, a circuit court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case. Moreover, even as to those issues actually decided, the law of the case doctrine is more flexible than res judicata in that it also provides that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a “manifest injustice.”

Id. at 105-06 (internal citations omitted). The doctrine applies to questions of law that are “ ‘actually presented and considered on a former appeal,’ ” but it may also “foreclose subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court’s decision.” Id. at 106 (quoting U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1063 (Fla.1983)).

The property owners assert that there has been no authority cited which would apply the law of the case doctrine to a finding made by a circuit court sitting in its appellate capacity. However, we have located Dougherty v. City of Miami, 23 So.3d 156 (Fla. 3d DCA 2009). That case involved a zoning decision by the Miami Zoning Board which was overturned by the city commission and then appealed to the circuit court, sitting in its appellate capacity. Id. at 157. The circuit court determined that the city commission departed from the essential requirements of the law in two respects, and the case was reversed and remanded to the city commission. After the city commission conditionally granted the requested permits, a first-tier certiorari petition was filed with the circuit court. Id. The circuit court denied the petition, and a second-tier cer-tiorari petition was then filed with the appellate court. Id. The Third District noted the applicability of the law of the case doctrine and held that “the 2006 circuit court appellate decision actually decided [the issue which had been brought to the circuit court in the first-tier certiorari petition]” and thus that the “2008 appellate decision failed to apply the correct law when it failed to enforce its prior decision.” Id. at 158.

We agree with the Third District that a decision by a circuit court, sitting in its appellate capacity, becomes the law of the case on issues which were necessarily presented and decided in the prior action. But this does not end the analysis. Comparing the first amended petition/eom-plaint to the third amended complaint in this case, it is easy to see that equal protection claims were made in both complaints. Some of the allegations were similar, such as the fact that there had been over 10,000 lots in the subject area where the double front-yard setback requirement had not been enforced.

Yet we note that the circuit court did not address the equal protection claim in its order granting the petition for writ of certiorari. And we reject the notion that the equal protection issue was implicitly addressed by the circuit court when it determined that the City’s denial of the COA was supported by competent, substantial evidence. The law of the case doctrine is inapplicable here because the facts of the case have changed since the certiorari petition was decided and the allegations in the third amended complaint present additional facts which, if true, could support an equal protection claim. As noted previously, it was not until litigation began that the property owners learned that other high-rise condominium projects had been approved within the Hyde Park Historic District. Because the alleged basis for the denial of the COA was the proposed project’s height, the property owners alleged in the third amended complaint that their equal protection rights were violated because their property had been treated differently than the other high-rise condominium projects. These allegations were not made in the first amended petition/complaint. Accordingly, the circuit court could still determine that the City’s actions in denying the COA were arbitrary and capricious and the law of the case doctrine does not bar the property owners’ equal protection claim. We therefore hold that the circuit court erred in dismissing with prejudice count II of the property owners’ third amended complaint.

III. Attorneys’ fees

The property owners have filed a motion for prevailing party attorneys’ fees pursuant to 42 U.S.C. section 1988(b), which provides for an award of attorneys’ fees to a prevailing party in any action or proceeding to enforce a provision of section 1983. Based on our determination that the property owners presented a viable equal protection claim in their third amended complaint, the property owners have prevailed on appeal. However it remains to be seen whether they will ultimately prevail below. We therefore conditionally grant their motion for appellate attorneys’ fees pursuant to section 1988(b) subject to their ultimately prevailing below.

The City has moved for attorneys’ fees pursuant to section 768.79, Florida Statutes (2009), based on the City’s proposal for settlement. The City has also noted that it sought attorneys’ fees in the circuit court pursuant to section 1988(b).

The property owners contend that the City is not entitled to attorneys’ fees under either section 1988(b) or section 768.79. This court has recognized that in the context of a civil rights action brought pursuant to section 1983, “ ‘[a] prevailing defendant may recover an attorney’s fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant.’ ” Moran v. City of Lakeland, 694 So.2d 886, 886 (Fla. 2d DCA 1997) (quoting Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Of course, the City is not the prevailing party on appeal. Yet, even if the City is successful in defending the equal protection claim below, we do not believe that the property owners’ claim was “vexatious, frivolous, or brought to harass or embarrass” the City. Thus we do not believe section 1988(b) provides a basis for an award of appellate attorneys’ fees to the City.

We also hold that the City is not entitled to appellate attorneys’ fees pursuant to section 768.79 because section 1988(b) preempts section 768,79. Moran, 694 So.2d at 886-887. Consequently, we deny the City’s motion for appellate attorneys’ fees.

IV. Conclusion

Based on the unique facts of this case, we hold that the circuit court erred by determining that section 1983 does not recognize an equal protection claim and by dismissing count II of the third amended complaint with prejudice. We also hold that the claim is not precluded by the circuit court’s earlier ruling or by the law of the case doctrine. Finally, we conditionally grant the property owners’ motion for appellate attorneys’ fees and deny the City’s motion for appellate attorneys’ fees as explained herein.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ., Concur.

      . The property owners did not learn of the conflicts of interest involving the ARC administrator and ARC board member until after the filing of the underlying lawsuit.


text:
    Luc PIERRE-CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2263.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.

      James Marion Moorman, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   BLACK, Judge.

Luc Pierre-Charles (the defendant) appeals his convictions and life sentences for two counts of first-degree murder. On July 28, 2006, Derek Pieper and Raymond Veluz were found dead, lying face down on an isolated road in Dade City, Florida. Both victims suffered multiple gunshot wounds to the backs of their heads. Two years later, the State indicted the defendant for two counts of first-degree murder. After a jury trial, the defendant was convicted as charged and sentenced to life in prison. The defendant raises five issues on appeal, only one of which requires reversal. The defendant’s arguments regarding the trial court’s admission of a witness’ prior consistent statement, the admission of certain autopsy photographs, the denial of defendant’s motion for judgment of acquittal, and the trial court’s denial of access to a witness’ grand jury testimony are without merit. However, we find error in the trial court’s admission of a hearsay statement made by the defendant’s brother, and based on this error, we reverse and remand for a new trial.

I. Background Facts

Witnesses testified that, at around 5:30 a.m. on July 28, 2006, they heard a series of gunshots coming from Harris Hill Road, a dirt road near their Dade City homes. The bodies of the two victims were -found on Harris Hill Road shortly thereafter. At trial, the State offered no physical evidence linking the defendant to the murders. Rather, the State built its case around the testimony of Angel Brooks and the defendant’s brother, Andre Pierre-Charles (who will hereinafter be referred to as “Andre”).

Ms. Brooks made five statements related to this case. On August 14, 2006, she made her first statement to a detective. She stated that she was with Andre on the night of the murders when he received a call from an unknown caller. In her statement at the sheriffs office on August 28, 2006, Ms. Brooks did not mention a speakerphone at all. That same day, at the state attorney’s office, Ms. Brooks said she did not hear who was on the phone with Andre. Ms. Brooks first mentioned a speakerphone in her January 2009 deposition. She said she heard the defendant’s voice on the speakerphone telling the victims to get down on their hands and knees and pray. Ms. Brooks testified that she could hear the victims saying, “Please don’t. Please don’t do this.” Ms. Brooks’ trial testimony was consistent with her deposition testimony.

The State also called Andre as a witness. Prior to Andre’s testimony, defense counsel requested a proffer of Andre’s anticipated testimony outside the presence of the jury. Counsel anticipated that the State was going to discuss an August 15, 2006, videotaped conversation between Andre and his father, which took place at the police station. Detectives called Andre to the police station to question him about the murders. Both his father and mother were present in the interrogation room during the questioning. The detective and Andre’s mother left the interrogation room, and the videotape showed that while Andre and his father were alone, Andre’s father questioned him about the murders and whether he knew who committed them. His father asked, “Is it Luc?” Andre nodded his head up and down. Originally, the State argued that the videotape would serve to impeach Andre’s testimony because they expected Andre to deny nodding his head up and down in response to his father’s question. Defense counsel argued that Andre’s head nod was inadmissible hearsay because it was offered to prove the truth of the matter asserted: that the defendant killed the victims. The trial court agreed to a proffer of Andre’s testimony regarding the videotape and its contents. The court questioned Andre about the head nod:

COURT: Okay. Were you nodding your head, yes, in response to his question meaning—
A: No. If you look at the tape, I was nodding my head, doing hand gestures, stuff like that through really most of the whole video. That was, like, I’m tired of this; get me out of here. That wasn’t me saying, yes, my brother did it.
COURT: All right. So when your father asked you, was he involved, you nodded your head yes as in, yes, I want to leave instead of, yes, he was involved. That’s what you’re telling me?
A: No. I wasn’t saying that my brother did it. Okay. Throughout the whole video, they’re telling me they know I wasn’t there. So if they know I wasn’t there, how do I know what happened.
COURT: All right. Did you tell your father, yes, when you’re asked, did Luc and Tyree did [sic] this.
A: I didn’t tell him that. I did not say that Luc and Tyree did it. How would I know if they did it or not?

The prosecutor questioned Andre further:

Q: Did your father ask you, “Is it Luc?”
A: Yes.
Q: And you nodded your head affirmatively, saying yes, right?
A: Yes, but I wasn’t saying that Luc did it.
Q: I’m not asking you whether or not—
A: Okay. Yes. Yes.

At the conclusion of the proffer, the prosecutor and the judge discussed Andre’s testimony:

[PROSECUTOR]: But clearly he asked, “Is it Luc?” ... and he nodded affirmatively.
COURT: Well, he said ‘Tes” now. So he’s no longer saying that that’s — he’s no longer denying that that’s what he said. He’s just saying that’s not what he meant. So it’s not impeachment. Do you agree?
[PROSECUTOR]: Well, I agree, though, Judge, as long as when I ask him the questions, “Did you nod your head? It’s a yes-or-no answer. He says, ‘Tes I nodded my head in the affirmative.” You know, I’m not asking him for, “That’s not what I meant,” so on and so forth....

Defense counsel maintained his position that the head nod was hearsay and that the State intended to use it to prove that the defendant committed the murders. Defense counsel argued that because Andre admitted to nodding his head, it came down to what he meant by that gesture, which was not proper impeachment. The court ruled that the State could ask Andre certain questions about the videotape. If Andre again admitted to nodding his head, the videotape could not be used to impeach him. If Andre denied nodding his head, then the State could impeach him with the videotape.

Once the jury returned, the prosecutor questioned Andre:

Q: Mr. Charles, you were asked by your father, “Who killed them, Andre? Luc?” And your mother, did she make a statement, “I don’t believe that”?
A: Yes.
Q: And right after that — would you agree with me that you had your head on the table, down like this (indicating), in this manner, during the portion of that video?
A: Yes.
Q: And right after that, did you lift your head and start shaking your head up and down affirmatively?
A: Yes.
Q: Later on in the video, did your father ask you, “Is it Luc?”
A: Yes.
Q: And you were leaning — you were in a chair leaning up against the wall, right? And you nodded your head up and down?
A: Yes, but I told you—
Q: Is that—
A: Yes.
Q: That’s a yes?
A: Yes. Yes. Yes. Yes.
,Q: So yes to, “Is it Luc?” You said, “Yes”?
[DEFENSE COUNSEL]: Objection.
A: No. No. No. No.
[DEFENSE COUNSEL]: The issue is whether he’s shaking his head like this (demonstrating), and he said yes. He didn’t make any statements.
[WITNESS]: I did not say “Yes.” You asked me did I nod my head, and I said yes. I did not tell my dad, “Yes, Luc did it.”
COURT: All right.
[PROSECUTOR]: Judge, I am trying to clarify with him. I asked him, “Did your dad ask you, ‘Is it Luc?’ Is that a yes?” I’m not saying that he said ‘Tes.”
[PROSECUTOR]: All right. So, as to that question, your dad asked you, “Is it Luc?” Right?
A: Yes.
Q: And you nodded your head up and down?
A: Yes.
Q: Are you denying that you shook your head up and down?
A: No.
Q: So you’re denying that he asked you that question, but you’re admitting that on the second question that your father asked you, you nodded your head affirmatively?
A: Yes. I nodded my head, but I also nodded my head this way, too. (Demonstrating)

The State never introduced the videotape, and defense counsel chose not to cross-examine the witness.

During closing arguments, the State attempted to discuss Andre’s head nod as substantive evidence. The State argued, “[TJhere was testimony as to a videotape that was running at the sheriffs office, when he was asked....” Defense counsel objected and argued that Andre’s head nod could not be used as substantive evidence because it was hearsay. The State argued that because Andre admitted to shaking his head, the nod was not impeachment evidence, and therefore, could be argued as substantive evidence. The trial court essentially agreed with the defense objection and expressed concern that hearsay testimony had already been admitted. The State then continued its closing argument without arguing Andre’s head nod any further.

The jury retired to deliberate the verdict, and they submitted three questions to the court: (1) “Andre Charles, his answer to, ‘Did Luc do it?’ (2) “Andre’s whole testimony printed out”; and (3) “Andre, have his testimony read to the jury.” Defense counsel argued that the testimony should not be read back to the jury, but if it was, he moved that the court should also give the jury a curative instruction regarding hearsay evidence. The court denied that motion and read back a portion of Andre’s testimony. The jury returned a guilty verdict.

II. Analysis

Section 90.801(l)(c), Florida Statutes (2009), defines hearsay as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A “statement” for purposes of hearsay includes “[njonverbal conduct of a person if it is intended by the person as an assertion.” § 90.801(l)(a)(2). “When an individual who is asked a question nods his or her head up and down to indicate an affirmative response, that conduct is intended to communicate a thought and is included within the definition of hearsay.” Charles W. Ehrhardt, Florida Evidence § 801.2, at 772 (2009 ed.). “Hearsay includes an out-of-court statement of a witness who testifies at trial, as well as an out-of-court statement by someone who is not a witness on the stand testifying to the statement.” Carter v. State, 951 So.2d 939, 944 (Fla. 4th DCA 2007) (citing Ehrhardt, Florida Evidence § 801.2 (2003 ed.)). “Merely repeating a statement in the courtroom does not convert a hearsay statement into non-hearsay.” Ehrhardt, Florida Evidence § 801.2, at 769-70 (2009 ed.). “The necessary reliability of the statement is lacking because the jury was not present to observe the demeanor of the witness when the statement was originally made and there was no opportunity for cross-examination at that time.” Id.

In this case, Andre’s head nod was an out-of-court statement introduced by the State as an affirmative response to his father’s question, “Is it Luc?” Andre’s head nod constitutes hearsay in the form of a nonverbal assertion, and therefore, the trial court erred in admitting the statement. At one point, the State argued that the head nod served only as grounds for impeachment. However, Andre admitted nodding his head, thereby obviating the need for impeachment. Prior inconsistent statements offered to impeach the credibility of a witness are not hearsay because they are not offered to prove the truth of the prior statement but rather to show why the witness is not trustworthy. Ellis v. State, 622 So.2d 991, 996 (Fla.1993). Moreover, Andre’s head nod was not introduced to simply attack his credibility; the State wanted the jury to believe in the truthfulness of Andre’s prior out-of-court statement. This purpose became apparent in closing arguments when the State referred to Andre’s videotaped discussion with his father and used the head nod as substantive evidence of defendant’s guilt. “Accordingly, the State was using the pri- or statement almost entirely for its substantive effect on the fact finder. At least to this extent, the hearsay rule must remain applicable.” Id.

A trial court has discretion concerning the admissibility of evidence; however, the boundaries of this discretion are limited by the rules of evidence. Hinojosa v. State, 857 So.2d 308, 309 (Fla. 2d DCA 2003) (citing Welty v. State, 402 So.2d 1159, 1162-63 (Fla.1981)). Here, the trial court erred when it admitted Andre’s hearsay statement. See § 90.802 (“hearsay evidence is inadmissible”). In addition, “there is a reasonable possibility that the error affected the verdict.” Knowles v. State, 848 So.2d 1055, 1059 (Fla.2003) (quoting State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)). The burden to show that error was harmless remains with the State. DiGuilio, 491 So.2d at 1139. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id.

In this case, we cannot say beyond a reasonable doubt that the error did not affect the verdict. See id. All three inquiries from the jury pertained to Andre’s testimony, specifically Andre’s response to his father’s question, “Is it Luc?” The judge’s rereading of Andre’s testimony magnified the error. “Whenever improper evidence becomes so prominent a feature of the trial, a court cannot find that the error was harmless beyond a reasonable doubt.” Ellis, 622 So.2d at 998. Because the trial court erred in admitting the hearsay statement and because the State failed to show that the error was harmless, we see no alternative but to reverse for a new trial.

Reversed and remanded.

ALTENBERND and KELLY, JJ., Concur.


text:
    Randy Lavern SPENCER, Petitioner, v. Steven PACE, Probation Officer of Florida Department of Corrections; Florida Parole Commission, Respondents.
    No. 1D10-6303.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Rehearing Denied Aug. 24, 2011.
    Randy Lavern Spencer, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent Florida Parole Commission; Jennifer Parker, General Counsel, Florida Department of Corrections, and Holly N. Simcox, Assistant General Counsel, Tallahassee, for Respondent Edwin G. Buss, Secretary, Florida Department of Corrections.
   PER CURIAM.

The petition for writ of mandamus is granted. Within 30 days, the circuit court shall either enter an order denying relief, or if it determines that the pending petition for writ of habeas corpus states a prima facie claim, shall issue an order to show cause why relief should not be granted. Because we are confident that the circuit court will comply with this directive, we withhold formal issuance of the writ.

WOLF, WEBSTER, and ROBERTS, JJ., concur.