author: ROTHENBERG, J.

text:
    CITY OF KEY WEST, Appellant, v. FLORIDA KEYS COMMUNITY COLLEGE, Appellee.
    No. 3D11-417.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Rehearing Denied March 23, 2012.

      Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael T. Burke and Christopher J. Stearns, Fort Lauderdale, for appellant.
    Barton Smith, P.L., and Barton Smith, Key West, for appellee.
    Anne M. Harvey, Tallahassee, for Florida Wildlife Federation, The Environmental Confederation of Southwest Florida and Sierra Club, as Amici Curiae, in support of appellant City of Key West.
    Brannon & Humphries, and Steven L. Brannock and Maegen Peek Luka, Tampa, for Florida Stormwater Association, the Florida League of Cities and the City of Gainesville, as Amici Curiae, in support of appellant City of Key West.
    Walter Harvey and Susan M. Seigle, Gainesville, for the School Board of Miami-Dade County and the School Board of Alachua County, as Amici Curiae, in support of Appellee Florida Keys Community College.
    Before WELLS, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, J.

The City of Key West (“the City”) appeals the trial court’s order granting final summary judgment to Florida Keys Community College (“the College”), in which the trial court: (1) determined that the College enjoys sovereign immunity from the City’s imposition of stormwater utility fees; and (2) directed the City to refund the stormwater utility fees paid by the College. We affirm.

In 2001, pursuant to the authority derived from sections 403.0891 and 408.0893, Florida Statutes, the City enacted Ordinance No. 01-06, creating a stormwater utility system, and establishing stormwater utility fees to fund the system. The stormwater utility fees apply to all developed property throughout the City’s municipal area, including North Stock Island, where the College’s main campus is located.

The City has no operational stormwater system on the College’s property, and has not identified any of the City’s facilities that collect or treat stormwater generated by the College’s property. The College’s property is accessed via College Road, which is owned by the City. College Road is elevated, and loops around North Stock Island and, consequently, provides a boundary that keeps stormwater runoff generated on the island within the College Road loop, and directs the runoff generated outside the loop into the Gulf of Mexico.

The College, which is organized and operated under Florida law, collects and treats any stormwater generated on its property with its own stormwater system, operated under a valid permit issued by the South Florida Water Management District. There is no written contract or agreement between the City and the College obligating the College to pay the City’s stormwater utility fees. Nonetheless, after establishing the stormwater utility, the City billed the College for storm-water utility services. To date, under threat of enforcement penalties, including litigation, the imposition of attorney’s fees for collection, a five percent per month late fee, liens, the discontinuation of utility services, and the denial of City permits, the College has paid $160,529.60 in stormwater utility fees.

The College filed the action below, seeking, among other things, a declaration that the College enjoys sovereign immunity with respect to the City’s stormwater utility fees. During the litigation, the College filed a motion for final summary judgment, which the trial court granted upon determining that the College is protected by sovereign immunity, and ordered the City to refund the $160,529.60 paid by the College in utility fees. This appeal followed.

On appeal, the City contends that the trial court erred in granting the College’s motion for summary judgment because the State of Florida has waived sovereign immunity with respect to the City’s stormwa-ter utility fees. The City also challenges the trial court’s determination that the College is entitled to a refund for the stormwater utility fees it has paid because: (1) sovereign immunity is a “shield” rather than a “sword”; and (2) the College submitted payment for the stormwater utility fees “voluntarily.” We entirely agree with the trial court’s findings and are unpersuaded by the City’s arguments to the contrary.

THE COLLEGE ENJOYS SOVEREIGN IMMUNITY FROM SUIT FOR NON-PAYMENT OF THE CITY’S STORMWATER UTILITY FEES.

The City does not dispute that the College is a state entity which, absent waiver, is entitled to sovereign immunity. The City, however, contends that in Chapters 403 and 180, Florida Statutes (2009), the Florida Legislature has waived sovereign immunity with respect to the imposition of stormwater fees. We disagree.

“The doctrine of sovereign immunity, which provides that a sovereign cannot be sued without its own permission, ... was a part of the English common law when the State of Florida was founded and has been adopted and codified by the Florida Legislature.” Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 471 (Fla.2005) (citing § 2.01, Fla. Stat. (2004)). Despite the doctrine’s expansive safeguards, “the Florida Constitution provides that the Legislature can abrogate the state’s sovereign immunity.” Id. (citing Art. X, § 13, Fla. Const.). However, “any waiver of sovereign immunity must be clear and unequivocal,” and, therefore, “waiver will not be found as a product of inference or implication.” Am. Home Assurance Co., 908 So.2d at 472. As a consequence, Florida courts must “strictly construe” any alleged legislative waiver of sovereign immunity. Id. Based on this standard, we conclude that the State of Florida has not waived sovereign immunity with respect to stormwater utility fees.

Chapter 403 does not waive sovereign immunity with respect to the City’s stormwater utility.

Under the mandate of section 403.0891, Florida Statutes (2009), local governments, including the City, are required to develop stormwater programs that are compatible with those developed by the Department of Environmental Protection and other local governmental entities. To fulfill this responsibility, the City enacted ordinance No. 01-06, which established a stormwater utility and utility fees, pursuant to the authority granted to the City by section 403.0893, which states, in pertinent part:

In addition to any other funding mechanism legally available to local government to construct, operate, or maintain stormwater systems, a county or municipality may:
(1) Create one or more stormwater utilities and adopt stormwater utility fees sufficient to plan, construct, operate, and maintain stormwater management systems set out in the local program required pursuant to s.403.0891(3)[.]

The City contends that the College is not protected by sovereign immunity because Chapter 403 does not “exempt” state-owned property from payment of stormwater utility fees. However, the City confuses waiver of sovereign immunity with exemption. Under Florida law, sovereign immunity is fundamentally different from the protection provided by an exemption. Whereas “sovereign immunity is the rule, rather than the exception,” Pan-Am Tobacco Corp. v. Dep’t of Corrs., 471 So.2d 4, 5 (Fla.1984), the converse is true of an exemption. Importantly, while an exemption must be expressly granted, the State enjoys sovereign immunity unless immunity is expressly waived. Thus, the Legislature’s inaction does not constitute a waiver of sovereign immunity. Because Chapter 403, which specifically relates to stormwater utility fees, does not expressly waive sovereign immunity for stormwater utility fees, it is clear that the State has not waived sovereign immunity in Chapter 403.

Chapter 180 does not waive sovereign immunity with respect to the City’s stormwater utility.

Although the City concedes that its stormwater utility was enacted under Chapter 403, it contends Chapter 180’s waiver of sovereign immunity as to certain utilities also applies to the City’s stormwa-ter utility. In support of its position, the City relies on section 180.13(2), Florida Statutes (2009), which provides as follows:

The city counsel, or other legislative body of the municipality, by whatever name known, may establish just and equitable rates or charges to be paid to the municipality for the use of the utility by each person, firm or corporation whose premises are served thereby; and provided further, that if the charges so fixed are not paid when due, such sums may be recovered by the said municipality by suit in a court having jurisdiction of said cause or by discontinuance of service of such utility until delinquent charges for services thereof are paid....

(Emphasis added). Relying on the above contentions, and the fact that the First District in City of Gainesville v. Florida Department of Transportation, 778 So.2d 519, 529 (Fla. 1st DCA 2001) (“Gainesville I”) concluded that the word “person” in section 180.13 includes “state agencies,” the City argues that section 180.13 authorizes the City to recover the College’s unpaid stormwater utility fees “by suit in court” and, therefore, expressly waives sovereign immunity.

We conclude that Chapter 180, and specifically section 180.13, does not apply to stormwater utilities. Chapter 403 and Chapter 180 serve different purposes: while Chapter 403 governs “Pollution Control,” Chapter 180 governs “Municipal Public Works.” Although these broad subjects are clearly related on certain levels, the statutory provisions of these Chapters are not interchangeable. More importantly, section 180.06, Florida Statutes (2009), which specifically lists the utility services within the ambit of Chapter 180, does not include stormwater utility services.

Any municipality or private company organized for the purposes contained in this chapter, is authorized:
(1) To clean and improve street channels or other bodies of water for sanitary purposes;
(2) To provide means for the regulation of the flow of streams for sanitary purposes;
(3) To provide water and alternative water supplies, including, but not limited to, reclaimed water, and water from aquifer storage and recovery and desalination systems for domestic, municipal or industrial uses;
(4) To provide for the collection and disposal of sewage, including wastewater reuse, and other liquid wastes;
(5) To provide for the collection and disposal of garbage;
(6) And incidental to such purposes and to enable the accomplishment of the same, to construct reservoirs, sewerage systems, trunk sewers, intercepting sewers, pumping stations, wells, siphons, intakes, pipelines, distribution systems, purification works, collection systems, treatment and disposal works;
(7) To construct airports, hospitals, jails and golf courses, to maintain, operate and repair the same, and to construct and operate in addition thereto all machinery and equipment;
(8) To construct, operate and maintain gas plants and distribution systems for domestic, municipal and industrial uses; and
(9) To construct such other buildings and facilities as may be required to properly and economically operate and maintain said works necessary for the fulfillment of the purposes of this chapter.

Because: (1) there is no mention of stormwater utility services in this section; (2) the City expressly enacted its stormwa-ter utility under Chapter 403; (3) Chapter 180 does not expressly waive sovereign immunity; and (4) sovereign immunity must be expressly waived, we find that the waiver of sovereign immunity as to certain enumerated utilities in section 180.13 cannot and does not by inference apply to the City’s stormwater utility fees. See also City of Gainesville v. Fla. Dep’t of Transp., 920 So.2d 53 (Fla. 1st DCA 2006), cert. denied, 935 So.2d 1219 (Fla.2006) (“Gainesville III ”) (rejecting a similar argument; finding that “chapter 180 does not provide a waiver of sovereign immunity for utilities authorized pursuant to chapter 403,” such as stormwater utilities; and stating, “chapter 180 has a very specific listing of the municipal services included within its scope. One municipal service not included in that list is stormwater runoff. The Legislature, for whatever reason, decided not to include stormwater runoff within the scope of chapter 180.”).

Alternatively, the City contends that even if stormwater utility services were not originally included in Chapter 180, the 2006 addition of section 180.03(3) brought stormwater utilities within the purview of Chapter 180, and, therefore, section 180.13’s waiver of sovereign immunity now applies to stormwater utility fees. We respectfully disagree.

As part of the 2006 amendment, the addition of section 180.03(3) was presented and adopted as an act “requiring municipalities to conduct certain studies for the construction of a new proposed sewerage system or the extension of an existing sewerage system prior to the adoption of certain resolutions or ordinances.” Ch. 2006-252, Laws of Fla. (emphasis added). Specifically, section 180.03(3) mandates that when constructing or extending certain sewerage systems, a study must be conducted that involves “consideration of the local authority’s obligations ... for water body cleanup and protection under state or federal programs, including requirements for water bodies listed under s. 303(d) of the Clean Water Act ....” (emphasis added).

In arguing that the addition of this provision places the City’s stormwater utility within the ambit of Chapter 180, the City emphasizes the language referring to a local authority’s obligations for “water body cleanup and protection.” This reference, however, is merely peripheral the provision’s primary focus is plainly the construction or extension of a sewerage system, a utility that, unlike the City’s stormwater utility, is expressly authorized under Chapter 180. See § 180.06. Further, the only action authorized by section 180.03(3) that is arguably related to the City’s stormwater utility is merely the consideration of a local authority’s obligations for “water body cleanup and protection,” and such consideration is only required as part of a “study” which must be conducted prior to the construction or extension of certain sewerage systems.

Thus, unlike section 180.06, which authorizes municipalities and certain private companies to “provide,” “construct,” “clean,” and “improve” the specified utilities enumerated in that section, section 180.03(3) does not authorize any action whatsoever that relates directly to storm-water utilities. Accordingly, this peripheral and indirect reference to a local authority’s obligations “for water body cleanup and protection” cannot be said to bring the City’s stormwater utility within the scope of Chapter 180.

THE COLLEGE IS ENTITLED TO A REFUND FOR THE STORMWA-TER UTILITY FEES IT INVOLUNTARILY PAID UNDER PROTEST.

The City claims the trial court erred by granting the College a full refund of the monies it paid to the City pursuant to the City’s demand for payment of stormwater user fees. The City argues that while the doctrine of sovereign immunity may be used as a “shield from suit,” it may not be used as a sword. While we agree with this general proposition, we conclude it is not applicable here, as the trial court did not rely on the doctrine of sovereign immunity in ordering the refund. Rather, the trial court granted the refund based on its determination that the “College’s payment was made due to a mutual mistake of law or under reservation of the right to seek a refund.”

The City also contends that “under Florida law, if a party pays a fee or tax voluntarily, it may not later seek a refund”; notes that it raised as an affirmative defense that the College paid the stormwater utility fees “voluntarily”; and argues that the College did not overcome that defense because “no evidence was presented in support of the [City’s] motion for summary judgment demonstrating that the fees were not paid voluntarily.” The record, however, does not support this argument, as it clearly reflects that the College paid the fees under threat of the imposition of significant penalties and under protest.

The Florida Supreme Court, in Jefferson County v. Hawkins, 23 Fla. 223, 2 So. 362 (1887), laid the foundation for Florida’s voluntary payment doctrine, stating:

[M]oney voluntarily paid upon claim of right, with full knowledge of all the facts, cannot be recovered back merely because the party, at the time of payment, was ignorant, or mistook the law, as to his liability.... [Tjhere must be ... some compulsion or coercion attending its assertion which controls the conduct of the party making the payment. To constitute such compulsion or coercion as will render payment involuntary, there must be some actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting or receiving the payment over the person or property of the party making the payment, from which the latter has no other means of immediate relief than by advancing the money.

(Emphasis added). A payment is considered to have been tendered “involuntarily” if payment is demanded, and the potential consequences of non-payment are sufficiently severe so as to leave little or no choice but to tender payment. See, e.g., Seaboard Air Line Ry. Co. v. Allen, 82 Fla. 191, 89 So. 555, 557 (1921) (determining that payment tendered in order to avoid seizure of property was involuntary because “the plaintiff was constrained to pay in order to avoid further ills and to continue the operation of its business .... ”); N. Miami v. Seaway Corp., 151 Fla. 301, 9 So.2d 705, 706 (1942) (holding that “[w]here the levy of an illegal tax may become a cloud upon the title to real estate, payment of the tax to avoid a cloud on the real estate or to avoid the imposition of substantial burdens upon property rights of the owner is not a voluntary payment”); Broward Cnty. v. Mattel, 397 So.2d 457, 459-60 (Fla. 4th DCA 1981) (explaining that “[pjayment of an illegal tax, even without protest, in order to avoid forfeiture of the right to do business is not a voluntary payment”).

Contrary to the City’s position, the record reflects that the College submitted a sworn affidavit executed by Dr. John Ke-hoe, the College’s Financial Vice President, specifically demonstrating that the fees were not paid voluntarily. In his affidavit, Dr. Kehoe averred that “the College objected to the City’s demand for payment,” but paid the fees after the City “threatened to exercise enforcement measures against the College,” if the College did not pay the stormwater utility fees, “including hens, discontinuance of utility services, a five percent (5%) per month late fee, and the imposition of attorney’s fees for collection.” Dr. Kehoe stated that it was only as a result of this pressure that the College submitted stormwater utility fee payments to the City “under protest and without waiving its objection to the imposition of the stormwater usage ‘fee.’ ” Dr. Kehoe’s affidavit was unrefuted by the City.

Because the threat of litigation, liens, the discontinuance of utility services, the denial of city permits, and the imposition of a five percent per month late fee and attorney’s fees was enough to severely disrupt, if not debilitate, the financial operation of this small State institution, we conclude that the College’s payment of the demanded fees was involuntary. We, therefore, find no error in the trial court’s order granting the College a refund of the fees it paid pursuant to the City’s demand.

Affirmed.

      . As a technical matter, we note that the trial court’s use of the word "imposition” was ill-advised, as sovereign immunity serves to protect the State from suit for non-payment of the City’s stormwater utility fees, rather than the imposition of such fees. However, the City has not objected to the trial court's loose use of language, and, therefore, waives any such argument. We, therefore, interpret the trial court’s determination to mean that the College enjoys sovereign immunity from suit for non-payment of the City’s stormwater utility fees.

      . Section 303(d) of the Clean Water Act is found at 33 U.S.C. § 1313(d) (2000), titled: "Identification of areas with insufficient controls; maximum daily load; certain effluent limitations revision." This section calls on states to identify certain standards relating to water body controls that are “not stringent enough,” and to establish new standards. The term "stormwater utility” is not referenced in this section.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Reggie Lee CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5267.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

In this appeal, we reverse the order of the trial court, finding that Reggie Lee Cruz willfully and substantially violated the terms of his probation. Just before Cruz became homeless, he informed his probation officer that he was going to pitch a tent by an 1-95 ramp; the officer approved the plans. One night, at 11:25, the officer went to check on Cruz at this location but did not find him. The following day Cruz contacted the officer and explained that he was not at the location because he went to his step-mother’s home (about a mile away) for about twenty minutes to use the restroom. The officer went back to the 1-95 location a few days later at about 10:00 p.m.; Cruz was there, as required.

Based on the restroom incident, the officer filed an affidavit of violation of probation, alleging that Cruz violated his probation by not being at his residence during curfew. At the violation of probation hearing, the officer acknowledged that when Cruz was previously residing at a different location, he had given him permission to go to a nearby fast food restaurant to eat one night after curfew because Cruz had come home from work late; however, the officer testified that he intended to allow a curfew exception only on this particular night. Cruz testified that he didn’t think he was violating his probation based on the officer’s previous curfew exemption, which Cruz testified, included permission to use nearby restrooms. The officer further testified that throughout his time on probation (six years), Cruz never violated a condition of probation. Following the hearing, the trial court found that Cruz willfully and substantially violated his probation, sentenced him to 365 days in jail, and extended his probation period by five years. This appeal followed.

“In order to support a revocation of probation, the State has the burden of proving by the greater weight of the evidence that the probationer’s violation was both substantial and willful.” Fulton v. State, 871 So.2d 1037 (Fla. 4th DCA 2004) (quoting Anderson v. State, 711 So.2d 106, 108 (Fla. 4th DCA 1998)). However, a finding of a “substantial” violation must be made after “considering all of the terms of probation imposed.” Rathbum v. State, 353 So.2d 902, 903 (Fla. 4th DCA 1977). Absence from the home without permission supports a finding of a willful and substantial violation of community control; however, “whether a probationer should be excused for leaving is a matter within the trial court’s discretion.” Lopez v. State, 722 So.2d 936, 937 (Fla. 4th DCA 1998) (internal citation omitted).

In Goley v. State, 584 So.2d 139 (Fla. 5th DCA 1991), after complying with prior instructions from his probation officer, Goley applied for authorization to travel. Id. at 140. The probation officer made written special entries on the travel permit form and orally instructed Goley to report back to her no later than Monday, June 25. Id. (emphasis in original). On June 26, Goley again appeared before the probation officer and inquired about authorization for another trip. Id. When he volunteered nothing about the report due the day pri- or, the probation officer advised him that he had violated the conditions of his probation by not reporting the previous day. Id. at 141. At the revocation hearing, Goley testified that he understood the oral instruction to be that he was to report the following week but believed that he had until the Friday following the trip, June 29. Id. The trial court found that the oral instruction given to Goley on June 15 was to report no later than June 25, that it was reasonable and appropriate, and that a violation of the conditions of probation had occurred. Id.

On appeal, the Fifth District reversed, holding that the twenty-four-hour delay “cannot be classified by itself as a substantial violation,” and that it was Goley’s confusion as to the date, not his willfulness, that led to the violation. Id. at 141 (emphasis added). The court added:

We vacate the sentence ... and instruct the trial court to reinstate the conditions of probation. We have little doubt that Goley’s stay in the DOC, although a brief stay, will cause him to be keenly attentive to his probation officer’s instructions in the future.

Id.

We hold that Cruz did not willfully or substantially violate the terms of his probation. The probation officer testified that he had previously given Cruz permission to go to nearby stores to eat. However, Cruz testified that this prior curfew exemption also included permission to use nearby restrooms. While the officer denied that he intended to authorize a curfew violation beyond that single occasion, he did not testify that he expressly limited permission to this one instance, even though that may have been his intention. Therefore, we hold that Cruz’s belief that he could use a nearby restroom after curfew was not unreasonable. See Rathbum, 353 So.2d at 903 (holding no violation where probationer’s failure to attend a required meeting “may have resulted from a misunderstanding”).

Moreover, Cruz had complied with all of the conditions of his community control and sex-offender probation for almost six years: He timely submitted monthly reports; he advised his probation officer whenever he changed residences; he maintained a driving log; he never tested positive for any illegal substances; he managed to obtain multiple jobs despite being homeless; and he did not have any new law violations. Thus, when considering all of the terms of probation imposed, this violation cannot be deemed substantial. This single incident does not demonstrate that Cruz is unfit for probation. See Ortiz v. State, 54 So.3d 1020, 1021-22 (Fla. 2d DCA 2011) (holding that a single misstatement by probationer to his probation officer was not a substantial violation of probation and did not demonstrate that probationer was unfit for probation, where probationer did not have any new law violations, had completed his community service requirement, and was attempting to comply with court orders regarding court costs and costs of supervision).

Reversed.

STEVENSON and TAYLOR, JJ„ concur.


author: PER CURIAM.

text:
    Kenneth SCHONBORG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3253.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Rehearing Denied March 22, 2012.
    Kenneth Schonborg, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    Errol RAINESS, Appellant/Cross-Appellee, v. In re: ESTATE OF Keiko MACHIDA, et al., Appellees/Cross-Appellants.
    Nos. 3D09-2938, 3D10-594.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Rehearing Denied March 9, 2012.

      Jack Martin Coe; Podhurst Orseck, P.A., and Joel D. Eaton, Miami, for appellant.
    Shutts and Bowen LLP, and Stephen T. Maher, Richard E. Landman, Temple Fett Kearns, George N. Andrews, and Danet Rodriguez Figg, Ft. Lauderdale, for appel-lees Bank of America, N.A., and FIA Card Services, N.A.; and Jason Warshofsky, Miami, for appellee Yamashita.
    Before WELLS, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, J.

This is a consolidated appeal following an interpleader proceeding filed by Bank of America (“the Bank”). The factual and procedural predicate is as follows. In 1998, Keiko Machida (“Machida”) opened an IRA, worth in excess of $1,500,000.00, with MBNA America Bank, which later merged with the Bank. Machida subsequently married Errol Rainess (“Rainess”) on August 22, 2001, and died shortly thereafter on November 4, 2001. The distribution of Machida’s IRA proceeds is the primary issue on appeal.

Machida intended for the distribution to be governed by the designation of beneficiaries she outlined in her IRA application (“IRA Simplifier”). Upon opening the IRA, Machida completed and submitted an IRA Simplifier to the Bank. The IRA Simplifier consisted of a three-part form: one original and one carbonized copy, both of which were to be retained by the Bank and scanned into its database, and another carbonized copy that was to be returned to the account holder.

Upon being notified of Machida’s death, the Bank discovered that it had misplaced its copies of Machida’s IRA Simplifier, and that it had never scanned them into its database. The Bank’s comprehensive search for the records proved unavailing. The Bank did, however, locate a computer entry in its Customer Information System, which reads, “REC SIGNED SIMP PRIMARIES ERROL RAINESS HUSBAND 50%, HIDEKAZU YAMASHITA NEPHEW 50%.”

Based on this entry, the Bank took the position that Rainess was entitled to fifty percent of the IRA, and that the other fifty percent should be distributed to Hidekazu Yamashita (“Yamashita”), Machida’s nephew. Rainess, on the other hand, claimed entitlement to the entire fund, relying on what he alleges is a photocopy of Machi-da’s IRA Simplifier, which lists Rainess as the IRA’s sole primary beneficiary. The Bank questioned the photocopy’s authenticity because it was incomplete and ambiguous. As a consequence, the Bank refused to distribute the IRA in accordance with designations in the document presented by Rainess.

During a series of phone calls that took place in May and June of 2002, the Bank informed Rainess that pursuant to the IRA agreement and the Certificate of Deposit Account Terms and Conditions that governed the individual certificates of deposit that comprised the IRA, Rainess needed to submit an original or certified copy of Machida’s death certificate before any action could be taken as to the IRA. Accordingly, the Bank requested a certified copy of the death certificate; Rainess, however, refused to provide one.

By April of 2003, the Bank informed Rainess that if it did not receive an original or certified copy of the death certificate and an original carbon copy of the IRA Simplifier, it would contact Yamashita and inform him of his options as co-equal beneficiary. The record reflects that Rainess purposely refused to submit a certified copy of Machida’s death certificate in an effort to prevent the Bank from disbursing the funds in accordance with its Customer Information System, contrary to his wishes. Consequently the Bank submitted instructions to both Rainess and Yamashita regarding their rights as coequal beneficiaries.

By the summer of 2004, after neither Rainess nor Yamashita submitted the required documentation necessary for distribution, the Bank filed a Petition for Order to Reopen Estate Administration and for Determination of Beneficiaries on July 16, 2004. On February 5, 2005, the trial court reopened the estate and directed the Bank to file an adversary proceeding. The Bank complied, interpleaded the entire IRA to establish its lawful beneficiaries, and named Rainess and Yamashita as respondents. After filing the interpleader action, the Bank moved to withdraw, but the trial court denied the Bank’s motion.

Rainess answered and filed a cross-petition against Yamashita, asserting sole rights to the IRA. Rainess also filed an answer and cross-claim in his capacity as the personal representative of Machida’s estate, arguing that if the trial court were unable to establish Machida’s intent in determining the beneficiaries, the entire IRA should be distributed to the estate. Yama-shita responded to the Bank’s interpleader action and the cross-claims of Rainess and the Estate, asserting entitlement to one-half of the IRA proceeds. Lastly, Rainess, as a third party beneficiary of the IRA agreement, filed a counter-petition against the Bank asserting claims of conversion, breach of fiduciary duty, negligence, and breach of contract. Although the Bank moved for final summary judgment on Rainess’ tort claims, and a hearing was conducted, the trial court declined to rule on the motion and the case proceeded to trial.

At trial, the Bank presented testimony from a former IRA Department supervisor who examined the document Rainess claims was a copy of Machida’s IRA Simplifier. The supervisor concluded that the document was both incomplete and ambiguous, and that if the Bank would have received a copy like the one proffered by Rainess, it would have been rejected and a notation would have been placed on Machi-da’s file. Because no such notation was present in Machida’s account, the supervisor concluded that the copy proffered by Rainess could not have been the same copy received by the Bank. The Bank also presented testimony from an expert forensic document examiner, who noted several imperfections on the face of the document, and determined that they could have been the result of Xerox forgery.

At the trial’s conclusion, the trial court issued final judgment: (1) awarding equal distribution of Machida’s IRA proceeds to Rainess and Yamashita; (2) denying Rainess’ motion for prejudgment interest; (3) awarding Rainess post-judgment interest; (4) granting summary judgment in favor of the Bank on Rainess’ tort claims; and (5) ruling in favor of the Bank on Rainess’ contract claim. The trial court also denied the Bank’s motion for attorney’s fees.

Rainess appeals the trial court’s: (1) decision to allow the Bank to interplead the entire IRA account; (2) denial of his motion for prejudgment interest; and (3) consideration of “secondary evidence” regarding the contents of the IRA Simplifier. The Bank cross-appeals the trial court’s: (1) award of post-judgment interest; and (2) order denying the Bank’s motion for attorney’s fees. The two appeals were consolidated for all purposes by this Court. We affirm all of the trial court’s findings, except the award of post-judgment interest to Rainess.

The trial court did not err by allowing the Bank to interplead the entire IRA account.

On appeal, Rainess contends that the trial court erred in permitting the Bank to interplead the entire IRA account because the Bank did not satisfy three of the “four common law requirements” necessary for the maintenance of an interpleader action, at least with respect to what Rainess refers to as his “uncontested half’ of the IRA. In support, Rainess relies on Sea Management Service, Ltd. v. Club Sea, Inc., 512 So.2d 1025, 1026 (Fla. 3d DCA 1987), in which this Court quoted the common law standard for an interpleader action articulated by the First District in Riverside Bank of Jacksonville v. Florida Dealers & Growers Bank, 151 So.2d 834 (Fla. 1st DCA 1963), as follows:

[Interpleader is not appropriate unless four conditions are satisfied: (1) the claims must be dependent or have a common origin; (2) the same thing, debt (or duty) or stake must be claimed by the defendants; (3) the plaintiff must have no interest in the subject matter-that is, in strict interpleader as distinguished from a suit in the nature of interpleader; and (4) the plaintiff must be in a position of indifference, having incurred no independent liability to either of the claimants, but must stand indifferent between them merely as a stakeholder, and it must appear that no act on his part has caused the embarrassment of conflicting claims and the peril of double vexation.

The common law standard, however, has been superseded by the enactment of Florida Rule of Civil Procedure 1.240, which states:

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claim of the several claimants or the titles on which their claims depend do not have common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of crossclaim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties otherwise permitted.

(emphasis added). The plain language of rule 1.240 clearly articulates but one requirement for the commencement of an interpleader action: that the stakeholder “is or may be exposed to double or multiple liability.” (emphasis added). In acknowledging that rule 1.240 superseded the four common law requirements, the First District in Zimmerman v. Cade Enterprises, Inc., 34 So.3d 199, 202 (Fla. 1st DCA 2010), expressly receded from its holding in Riverside, stating:

In Riverside Bank of Jacksonville v. Florida Dealers & Growers Bank, 151 So.2d 834 (Fla. 1st DCA 1963), a case predating rule 1.240, this court outlined four conditions to maintain an action in “strict interpleader,” which must appear from the pleadings: (1) the same thing, debt (or duty), or stake must be claimed by the defendants; (2) the claims must be dependent or have a common origin; (3) the plaintiff must have no interest in the subject matter; and (4) the plaintiff must be in a position of indifference, having incurred no independent liability to either of the claimants, but must stand indifferent between them merely as a stakeholder, and it must appear that no act on his part has caused the embarrassment of conflicting claims. Id. at 836. Florida courts continue to recite the four common law requirements for interpleader. See, e.g., Prince v. Underhill, 670 So.2d 92, 94 (Fla. 5th DCA 1996); St. Mary’s Traditional Roman Catholic Church, Inc. v. Eight Hundred, Inc., 779 So.2d 317, 319 (Fla. 2d DCA 1999). However, the only absolute requirement remaining under rule 1.240 is that the stakeholder “is or may be exposed to double or multiple liability” for competing claims to a single fund. See 32 Fla. Jur.2d Interpleader § 2 (2003); Hagendorfer v. Ap-pelquist & Ripley, Inc., 529 So.2d 343 (Fla. 1st DCA 1988); Newkirk Constr. Corp. v. Gulf Cnty., 366 So.2d 813 (Fla. 1st DCA 1979). A party may not object to interpleader on the grounds that one of the remaining three common law requirements is not met. See, e.g., Motzkin v. Shearson Lehman Bros., 611 So.2d 592, 593 (Fla. 4th DCA 1993) (reiterating that the language of rule 1.240 provides that a party cannot object to joinder in interpleader on any ground except “where a plaintiff is faced with conflicting claims that may result in double or multiple liability”); Bache Halsey Stuart Shields, Inc. v. Witous, 411 So.2d 1324 (Fla. 2d DCA 1982) (noting that under rule 1.240 a plaintiff may proceed in interpleader even when he has caused the conflicting claims or is interested in the stake).

(emphasis added); see also 4 Fla. Prac., Civ. P.R. 1.240 (2011-2012) (opining that it is “something of an enigma” that Florida courts continue to cite to the four common law requirements).

We therefore conclude that the sole requirement for the maintenance of an interpleader action is that the stakeholder “is or may be exposed to double or multiple liability” with respect to the interplead-ed fund or res. Importantly, as is demonstrated by the inclusion of the word “may,” rule 1.240 is forward-looking, contemplating interpleader based on potential liability. Such potential is, however, constrained by reason and good faith. While a stakeholder need not assess the threat of multiple liability to a level of certainty or even probability, he must have a “reasonable” and “bona fide fear” of exposure to multiple liability at the time interpleader is sought. Newkirk Constr. Corp. v. Gulf Cnty., 366 So.2d 813, 816 (Fla. 1st DCA 1979) (citing John Hancock Mut. Life Ins. Co. v. Beardslee, 216 F.2d 457 (7th Cir.1954)). In other words, a stakeholder may not interplead based on an unreasonable fear of a merely hypothetical claim that lacks merit grounded in law or in fact.

Having clarified the standard for maintaining an interpleader action, we now address whether the Bank had a reasonable and bona fide fear of being exposed to multiple liability with respect to the half-share Rainess claims was improperly in-terpleaded by the Bank. Rainess contends that the Bank was not exposed to multiple liability with respect to his half of the IRA account because the Bank and Yamashita never disputed that Rainess was entitled to a fifty percent share. Therefore, Rainess argues that it was improper for the Bank to interplead that portion of the IRA.

Rainess’ argument, however, ignores the record, which reflects that, at the time the Bank interpleaded the fund, the Bank had a reasonable and bona fide fear of being exposed to multiple liability for the entire IRA based on a potential claim from Ma-chida’s estate. In its Petition for Order to Reopen Estate Administration and for Determination of Beneficiaries, the Bank identified three possible alternatives for distributing the IRA:

(i) fifty percent (50%) to Yamashita and fifty percent (50%) to Rainess, pursuant to the 1998 Designation; (ii) one hundred percent to the decedent’s estate, assuming neither the 1998 Designation nor the Alleged Designation is valid; or (iii) one hundred percent (100%) to Rainess, pursuant to the Alleged Designation.

(emphasis added). The second alternative was clearly viable, given the evidentiary deficiencies regarding Machida’s intent. Because the Bank misplaced Machida’s IRA Simplifier, the only evidence the Bank had with regard to Machida’s intent was a computer entry. Further, the authenticity of the alleged copy of Machida’s IRA Simplifier produced by Rainess was vigorously challenged. Thus, it was reasonably possible for a finder of fact to conclude that neither the computer entry nor the document produced by Rainess established Ma-chida’s intent, in which case Machida’s estate would be left with a superior claim to the IRA proceeds. Consequently, at the time the Bank interpleaded the fund, it was justifiably concerned about a potential claim by Machida’s estate as to the entire IRA account.

Not only was a viable claim on behalf of Machida’s estate reasonably possible, but one was actually filed. Rainess filed a cross-claim in his capacity as the personal representative of Machida’s estate, stating that if the trial court were unable to establish Machida’s intent as to the beneficiaries, the entire IRA should be distributed to the estate.

Rainess attempts to undercut the significance of the estate’s claim to the IRA in two respects. First, he argues that since the claim was pled in the “alternative,” it did not constitute a “conflicting” claim, and, therefore, there was no potential for multiple liability stemming from the estate’s claim. Second, he argues that the Bank interpleaded the IRA long before Rainess asserted a claim on behalf of the estate, and, therefore, at the time the action was filed, there was no justification for interpleading the entire IRA account. Rainess’ arguments, however, miss the point, as the efficacy of an interpleader action is not governed by the wording, or even the eventual filing, of a conflicting claim, but by the reasonable potential for, and bona fide fear of, multiple liability at the time the interpleader action is filed. Having established that the Bank was exposed to, and had a bona fide fear of, a reasonable potential for multiple liability with respect to the entire IRA account at the time it sought interpleader, we conclude the trial court did not err in allowing the Bank to interplead the entire IRA account.

The trial court did not err in denying Rainess’ claim for prejudgment interest.

Rainess challenges the trial court’s denial of his claim for prejudgment interest on the principal amount of his “uncontested half’ of the IRA. Rainess claims that he is entitled to prejudgment interest as a result of being awarded fifty percent of Ma-chida’s IRA. Rainess is incorrect.

“Florida has adopted the position that prejudgment interest is [an] element of pecuniary damages.” Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985) (emphasis added). A plaintiff is entitled to prejudgment interest as a matter of law when he prevails on a claim and “a verdict liquidates damages on a plaintiffs out-of-pocket, pecuniary losses.” Id. (emphasis added). As has been established, Rainess did not prevail on any of his claims below, and was not awarded any damages. While the trial court determined Rainess to be a co-equal primary beneficiary of Machida’s IRA, that determination did not constitute an award of damages, as interpleader is not an action for damages. Rather, it has been established that, “[e]ven after the adoption of rule 1.240, interpleader remains an equitable remedy governed by equitable principles.” Zimmerman, 34 So.3d at 202 (citing Wassman v. Travelers Cas. & Sur. Co., 797 So.2d 626, 631-32 (Fla. 5th DCA 2001)). Thus, the trial court did not err in denying Rainess’ claim for prejudgment interest.

The trial court did not err in considering secondary evidence regarding the contents of the IRA Simplifier, and its determination that Rainess and Yamashi-ta were co-equal primary beneficiaries was supported by substantial competent evidence.

Rainess argues that the alleged photocopy of Machida’s IRA Simplifier satisfied the best evidence rule, and that, consequently, the trial court erred in considering the notation in the Bank’s computer information system as secondary evidence in determining the contents of Machida’s IRA Simplifier.

Since the contents of the IRA Simplifier gave rise to legal rights, the process of proving them is governed by the best evidence rule, which is codified in sections 90.952-.954, Florida Statutes (2009). See Griem v. Zabala, 744 So.2d 1139, 1140 (Fla. 3d DCA 1999). Section 90.952 provides that “[e]xcept as otherwise provided by statute, an original writing ... is required in order to prove the contents of the writing.” Under the best evidence doctrine, admission of an “original” precludes consideration of secondary evidence as proof of the contents of the original. State v. Eubanks, 609 So.2d 107, 109 (Fla. 4th DCA 1992) (“The best evidence rule requires that if original evidence is available, then no other evidence should be received which is merely substitutionary in nature.”). In the absence of an original, however, section 90.953(2) allows for the admission of a “duplicate” “to the same extent as an original, unless: ... [a] genuine question is raised about the authenticity of the original or any other document or writing.” Thus, if a duplicate is properly admitted under section 90.953, it also precludes consideration of secondary evidence. If, and only if, neither an original nor its equivalent is available, secondary evidence regarding the contents of the original can be admitted under section 90.954, which states, in relevant part: “The original of a writing ... is not required ... and other evidence of its contents is admissible when: ... (1) All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.”

In this case, Rainess introduced what he claims is a photocopy of the IRA Simplifier executed by Machida. He argues that this copy is a “duplicate” of the original, and was, therefore, admissible to the same extent as the original, thus precluding admission of other evidence regarding the contents of the IRA Simplifier. We disagree because there was a genuine question raised about the authenticity of the “duplicate” presented by Rainess.

The Bank presented the testimony of a former supervisor of its IRA department, who stated that the alleged copy submitted by Rainess was ambiguous and incomplete, most notably because it did not identify primary beneficiaries for the full amount of the IRA. She also explained that pursuant to the Bank’s comprehensive, written procedures, associates were charged with reviewing incoming IRA Simplifiers for completeness, and that if they had received an ambiguous or incomplete IRA Simplifier, like the copy proffered by Rainess, such a deficiency would have been noted, and the IRA Simplifier would have been returned to Machida for correction. The supervisor noted that Machida’s account lacked any such notation, and, therefore, concluded that the copy proffered by Rainess could not have been the copy received by the Bank.

Question: So is it your position that [the document proffered by Rainess] must not have been received back in 1999?
Answer: Yes.
Question: Can you elaborate on that?
Answer: Part of the process when we get IRA beneficiary designations is that the percentages have to total a hundred percent. And in lieu of that, we would contact the customer, comment the account, send them a new IRA simplifier with a letter stating that we need clarification on their position.
Question: So just to be clear, if this actually would have been received in this manner with these notations on it originally when the document was set up, it would not have been keyed into the system as fifty percent primary, fifty percent contingent?
Answer: That’s correct.
Question: You would have sent back saying, Mrs. Machida, we need further clarification.
Answer: That’s correct.

In addition, the Bank presented the testimony of an expert forensic document examiner. With regard to the document proffered by Rainess, the document examiner opined “there is some indication that put me off about this document.” More specifically, he stated:

There are some indications, especially in that particular area, that a Xerox forgery could have taken place.... To the left of the five and 50 there is an area of confusion, a blurred area that I have seen in past cases that were indicative of some manipulation of the document as a Xerox forgery.

While the document examiner stated that he could not definitively determine that the copy was a forgery, he stated, with regard to the imperfection in the document, “that is certainly one of the indicators I have found before. And this could have been the result of manipulation, yes.”

We find that the totality of this evidence was legally sufficient to create a genuine question regarding the authenticity of the duplicate. Thus, the trial court properly concluded that the document introduced by Rainess was not admissible under section 90.953 “to the same extent as an original,” meaning that its admission into evidence did not preclude consideration of secondary evidence in determining the contents of the original. We note, however, that while Rainess’ document was not admissible under section 90.953, it was clearly admissible, and ultimately admitted, under section 90.954 as secondary evidence. See Garcia v. Lopez, 483 So.2d 470, 471 (Fla. 3d DCA 1986) (“Section 90.954 is broader than section 90.953-a copy which is not admissible under section 90.953 as a duplicate may still be admissible under section 90.954.”).

Having established that the original copy of the IRA Simplifier was lost or misplaced, and that there was no equivalent of the original proffered, the trial court, pursuant to section 90.954, properly admitted the Bank’s secondary evidence regarding the contents of Machida’s IRA Simplifier. Based on this secondary evidence, which is outlined below, the trial court determined that Rainess and Yama-shita were co-equal primary beneficiaries.

First, the Bank established that it received Machida’s IRA Simplifier on January 8, 1999. The Bank also presented testimony that pursuant to its written procedures, associates at that time were instructed to enter beneficiary designations into its Customer Information System only after verifying the IRA Simplifier’s completeness. The Bank then introduced a computer entry outlining Machida’s designation of beneficiaries from its Customer Information System, which reads: “REC SIGNED SIMP PRIMARIES ERROL RAINESS HUSBAND 50%, HIDEKAZU YAMASHITA NEPHEW 50%.” The Bank testified that this entry was created by Michelle Druez, who was a highly trained “resident expert ... in terms of setting up and providing IRA accounts and providing training to other associates.” Based on this record, we find that the trial court’s determination that Machida designated Rainess and Yamashita as co-equal fifty percent beneficiaries was supported by substantial competent evidence.

Given our affirmance of the trial court’s finding that Rainess and Machida were coequal primary beneficiaries, we need not reach Rainess’ remaining arguments regarding the claims made in his counter-petition and the trial court’s denial of his motion for leave to add a claim for punitive damages, as these claims were dependent on a finding that the Bank improperly withheld his fifty percent share and erred by impleading the entire IRA account.

The trial court did not err in denying the Bank’s motion for attorney’s fees and costs.

On cross-appeal, the Bank contends the trial court erred in denying its motion for attorney’s fees and costs. The Bank argues that it was a disinterested stakeholder that was not responsible for creating the conflicting claims and was therefore entitled to attorney’s fees.

To be entitled to attorney’s fees in an interpleader action, a stakeholder must “prove his total disinterest in the stake he holds other than that of bringing it into court so that conflicting claims thereto can be judicially determined” and “show that he did nothing to cause the conflicting claims or to give rise to the peril of double vexation.” Wolf v. Horton, 322 So.2d 71, 73 (Fla. 3d DCA 1975) (emphasis added) (citing Davis v. Davis, 301 So.2d 154, 157 (Fla. 3d DCA 1974)). Although the trial court concluded that the Bank was a disinterested stakeholder, it denied the Bank’s motion for attorney’s fees upon determining that its “lax record-keeping practice prolonged unnecessarily this litigation.” We agree with the trial court’s assessment.

The contents of Machida’s IRA Simplifier were dispositive of the primary issue in contention, namely who was entitled to what portion of the IRA. It is therefore clear that the Bank’s misplacement of the IRA Simplifier contributed significantly to the commencement and litigation of the claims below. If the Bank had scanned the IRA Simplifier and properly maintained it in its records, as it was obligated to do, the document would have precluded the conflicting claims, or easily disproved any claim inconsistent with the designation of beneficiaries in the IRA Simplifier. Therefore, it cannot be said that the Bank did nothing to contribute to the conflicting claims. Accordingly, we affirm the trial court’s denial of the Bank’s motion for attorney’s fees.

The trial court eired in awarding post-judgment interest to Rainess.

Post-judgment interest is governed by section 55.03(2), Florida Statutes (2009), which states:

Any judgment for money damages or order for a judicial sale and any process or writ directed to a sheriff for execution shall bear, on its face, the rate of interest that is payable on the judgment. The rate of interest stated in the judgment accrues on the judgment until it is paid.

Section 55.03(2), by its plain language, applies only to: (1) a judgment for money damages; (2) an order for a judicial sale; and (3) any process directed to a sheriff for execution. As explained above, Rainess was not awarded “damages” in this case, and the latter two categories are clearly inapplicable to this litigation. See also Gay v. Beary, 758 So.2d 1242, 1245 (Fla. 5th DCA 2000) (holding that “section 55.03 applies expressly and literally to ‘judgments obtained against a party not property held pending completion of forfeiture proceedings”). We therefore reverse the trial court’s award of post-judgment interest.

We decline to specifically address any of the remaining arguments on appeal based on our finding that they are without merit.

Affirmed in part, reversed in part.

      . For purposes of clarity, MBNA and the Bank will be jointly referred to as "the Bank.”

      . Rainess contacted the Bank to inform it of Machida’s passing in May of 2002. By June of 2002, the Bank had advised Rainess that it had misplaced the IRA Simplifier, and by September 2002, the Bank had completed an “exhaustive search” for it. Despite the ongoing dispute with the Bank over the contents of the original IRA Simplifier, Rainess did not fax his purported photocopy of it until February 5, 2003.

      . Superseded by Rule, Florida Rule of Civil Procedure 1.240 (1993), as recognized in Zimmerman v. Cade Enterprises, Inc., 34 So.3d 199, 202 (Fla. 1st DCA 2010).

      . The Florida interpleader rule is virtually identical to Federal Rule 22(a), and cases interpreting the federal rule are persuasive in cases arising under the Florida rule. Zimmerman, 34 So.3d at 201-02.


author: SHEPHERD, J.

text:
    James ARONSON, et al., Appellants, v. Doreen ARONSON, Appellee.
    No. 3D09-773.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Rehearing Denied March 13, 2012.

      Buckingham, Doolittle <& Burroughs and Michael D. Mopsick, Boca Raton, for appellants.
    Shutts & Bowen and William Jay Palmer, Miami, for appellee.

      Before SHEPHERD, SUAREZ, and SALTER, JJ

       Judges Shepherd and Suarez did not participate in oral argument.

   ON REHEARING GRANTED

SHEPHERD, J.

On consideration of Appellants’ motion for rehearing, the Court withdraws its opinion issued on October 27, 2010, and substitutes the following opinion in its stead:

This appeal is a sequel to our decision in Aronson v. Aronson, 930 So.2d 766 (Fla. 3d DCA 2006) (Aronson I), in which we held that a husband’s quitclaim in his individual capacity of a marital residence to his wife was a nullity because he previously had conveyed title to the property to a revocable trust. Id. at 769. We now decide whether the law permits the deceased husband’s plan for the disposition of the property to be honored in the face of the widow’s objection that the property is protected homestead, for which the disposi-tional terms for the property are delimited through article X, section 4(c) of the Florida Constitution. We hold that the constitutional provision controls. A summary of the factual history of this case is necessary to explain our decision.

On July 2,1996, while residing in Massachusetts with his wife, Doreen, Hillard J. Aronson created the Hillard J. Aronson Revocable Trust, naming himself as Trustee, and conveyed certain property, including a Key Biscayne condominium titled in his name alone, to the trust. On November 10, 2001, Hillard Aronson died, survived by his wife and two sons from a prior marriage, the appellants, James and Jonathan Aronson. James and Jonathan became the successor trustees by the terms of the Trust. The year before Hillard died, the couple sold their Massachusetts home, which had been titled in Doreen’s name alone, and moved into the Key Biscayne condominium. Doreen applied $129,895 of the proceeds from the sale of the Massachusetts home to satisfy the then-existing mortgage on the condominium.

The trust document provided, upon Hil-lard’s death, for a life interest in Doreen in all of the remaining assets of the trust after payment of last expenses and certain specific bequests (which appear to have lapsed for reasons immaterial to our decision). The trust instrument further provided, “Upon the death of the Settlor’s said wife, the balance of the Trust property remaining in the hands of the Trustee shall be distributed to the Settlor’s children, James D. Aronson and [Jonathan R.] Aronson in equal shares, share and share alike.” At the time of Hillard’s death, the sole remaining asset of the Revocable Trust was the Key Biscayne condominium. Thus, the trust document effectively gave a life estate in the Key Biscayne condominium to Doreen Aronson, with the remainder to the two sons. However, the Trust, in Article XII, section two, contained one additional provision in the same dispositive paragraph:

There shall also be paid or transferred to the Settlor’s said wife, free and discharged of all trust, upon her written requisition delivered to the Trustee, such portions of the principal of said Trust fund as she may from time to time request, not exceeding, however, in valuation the greater of Five Thousand ($5,000.00) Dollars or five (5%) per cent of the market value of the principal of this Trust portion on the last day of the calendar year in which such withdrawal is requested, in any one calendar year, each such payment or transfer to be made thirty (30) days from the receipt of the requisition therefor. This right of withdrawal of principal shall be noncumulative, and to the extent not exercised in any calendar year, shall terminate as to that year. In case of the death of the Settlor’s said wife, before payment or transfer but after requisition, the distribution shall lapse and maintain a part of this Trust.

After Doreen’s unsuccessful claim in Ar-onson I — that she received all of her deceased husband’s right, title, and interest in the Key Biscayne condominium to the exclusion of the two sons by virtue of the quitclaim deed — Doreen began to make annual requisitions for a transfer of a five percent interest in the condominium unit to her pursuant to the above provision. She also demanded the Trust reimburse her in the amount of the mortgage pay-off on the condominium made prior to her husband’s death, and for all taxes, special assessments, and other expenses of the condominium, all of which she claimed, based upon Aronson I, were obligations of the Trust. The trustees countered with a plan to sell the condominium pursuant to its general trust powers so the Trust could satisfy the annual requisitions and distribute the remaining sums to themselves. The controversy devolved into litigation by the end of 2006.

By her amended complaint, Doreen sought a declaration that the property she occupied was homestead property, not subject to sale by the successor trustees, for specific performance of her annual principal requisitions, return of the sums from the Massachusetts home owned by her, which was used to pay off the mortgage on the Key Biscayne condominium under the mistaken belief she owned the property in fee simple, and for all of her expenses in maintaining the condominium for the benefit of the titleholder Trust since the date of her husband’s death. After a non-jury trial, the trial court found in an amended and clarified final judgment that Doreen’s property was “the homestead of Doreen Anderson,” ordered the Trust to reimburse her for the amount of the mortgage pay-off in the sum of $129,895, and ordered the Trust to pay Doreen an additional $136,519.67 for condominium repair and improvement expenses, but excluded annual property taxes, maintenance fees, special assessments, and insurance costs incurred by Doreen since she has occupied the condominium alone after her husband’s death. The trial court also found she had the power to demand the trustees execute a deed transferring an interest in the trust principal equal to a five percent interest in the Key Biscayne condominium for each year she requests a principal distribution.

ANALYSIS

We reverse the judgments under review. First, it is undisputable the Key Biscayne condominium was the decedent’s homestead at the time of his death. Séc-ond, article X, section 4(c) of the Florida Constitution provides that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.” Art. X, § 4(c), Fla. Const. Third, the Florida legislature has made clear its command that this provision shall apply equally to property held by a revocable trust as to testamentary bequests. § 732.4015(2)(a), Fla. Stat. (2001); Cutler v. Cutler, 994 So.2d 341, 343 (Fla. 3d DCA 2008); Engelke v. Estate of Engelke, 921 So.2d 693, 697 (Fla. 4th DCA 2006). Finally, section 732.401(1) of the Florida Statutes (2001), provides:

(1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.

(emphasis added). Because the Key Biseayne condominium was Hillard’s homestead and because his wife, Doreen, survived him, the condominium was not subject to disposition through the trust. See In re Estate of Scholtz, 543 So.2d 219, 221 (Fla.1989); see also City Nat’l Bank of Fla. v. Tescher, 578 So.2d 701, 703 (Fla.1991); Ergos v. State, 670 So.2d 1079, 1080 (Fla. 2d DCA 1996) (Altenbernd, J. concurring). At the moment of Hillard’s death, his homestead property passed outside of probate, see §§ 733.607, .608, Fla. Stat. (2001); Wilson v. Fla. Nat’l Bank & Trust Co. at Miami, 64 So.2d 309 (Fla.1953); Clifton v. Clifton, 553 So.2d 192, 194 n. 3 (Fla. 5th DCA 1989), in a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons, James and Jonathan per stirpes. § 732.401(1), Fla. Stat. From- that moment forward, the trustees had no power or authority with respect to the former marital home. The widow became responsible for the expenses of the property, and, of course, remains so for as long as she remains a life tenant. See Schneberger v. Schneberger, 979 So.2d 981, 983 (Fla. 4th DCA 2008) (affirming trial court judgment declaring that life tenant was responsible “to pay all ordinary and necessary expenses that inure to a homeowner, including taxes, insurance, homeowner’s association fees, and general repairs for the upkeep and maintenance of the property”); Williams v. Williams, 120 So.2d 202, 205 (Fla. 3d DCA 1960) (stating life tenant who voluntarily made improvements to property during the course of (or after) her tenancy may not recover the cost thereof from remaindermen even if remainder-men knew the improvements were being made by the holder of the life estate and passively acquiesced); see also Henry P. Trawick, Redfeam Wills & Admin. in Fla., § 9:3 (2011) (confirming that “[a life tenant] must pay the taxes, insurance, association fees, repairs for upkeep and maintenance during the tenancy unless the document creating the estate provides otherwise”) (citing Schneberger, 979 So.2d at 982; Williams, 120 So.2d at 204-205). Finally, reasoning inductively from Williams, 120 So.2d at 205, in which we held that where a life tenant pays off a mortgage outstanding against the estate, he is entitled to reimbursement from the re-maindermen, we find there is no basis in law to charge the remaindermen with the obligation to reimburse the widow for the amount she paid to satisfy the mortgage on the condominium before her husband’s death, even if she did so under the mistaken belief that she was the titleholder to the property.

Reversed and remanded for proceedings in compliance herewith.

      . The appellants argue certain of the widow’s claims are barred by res judicata. Because the claims made in the amended complaint filed by her in this action are different from those made by the appellants in Aronson I, there is no res judicata defense available to the appellants in this case. See AMEC Civil, LLC v. State Dep’t of Transp., 41 So.3d 235, 245 (Fla. 1st DCA 2010); Jones v. State ex rel. City of Winter Haven, 870 So.2d 52, 55 (Fla. 2d DCA 2003); Pipkin v. Wiggins, 526 So.2d 1002, 1003 (Fla. 3d DCA 1988) (holding res judicata did not bar current litigation when prior litigation between the parties involved one breach of obligation under a joint venture agreement and instant litigation was based upon a different cause of action from a subsequent interference with the same agreement).

      . Three requirements must be satisfied for real property to be impressed with the characteristics of homestead property under arti-ele X, section 4 of the Florida Constitution: (1) the property must be owned by a "natural person”; (2) the owner must have made, or intend to make the real property his or her permanent residence or that of his family; and (3) the property must meet the size and contiguity requirements of article X, section 4(a)(1) of the Florida Constitution. Cutler v. Cutler, 994 So.2d 341, 344 (Fla. 3d DCA 2008). The estate owned need not be fee simple, but may be any type of interest in the property, legal or equitable, so long as the interest is a possessory interest. See Hill v. First Nat'l Bank of Marianna, 73 Fla. 1092, 75 So. 614 (1917) (tenancy in common); Smith v. Unkefer, 515 So.2d 757 (Fla. 2d DCA 1987) (life estate); Heiman v. Capital Bank, 438 So.2d 932 (Fla. 3d DCA 1983) (equitable interest); but see Aetna Ins. Co. v. LaGasse, 223 So.2d 727 (Fla.1969) (remainder interest does not qualify).

      . In 2010, section 732.401 was amended to allow the surviving spouse to elect an undivided one-half interest in the homestead property in lieu of the life estate. See Ch. 2010-132, § 7, Laws of Fla.


text:
    ROBINSON INDUSTRIES, INC., Miami, a foreign profit corporation, Appellant, v. THRESHOLDS INTERNATIONAL, INC., Appellee.
    No. 3D11-2119.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Rehearing Denied March 9, 2012.
    Malka & Kravitz, and Larry R. Leiby, Fort Lauderdale, and Robert S. Tanner, Sunrise, for appellant.
    Elder & Lewis, and Kerry H. Lewis, Coconut Grove, for appellee.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Deutsche Bank Nat’l Trust Co. v. Basanta, - So.3d -, 2011 WL 4950007 (Fla. 3d DCA 2011).


author: PALMER, J.

text:
    ORANGE COUNTY, Florida, Appellant, v. Beryle S. BUCHMAN, et al., Appellees.
    No. 5D10-3207.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2012.
    Rehearing Denied March 8, 2012.

      Jeffrey J. Newton, County Attorney, and Henry M. Brown Assistant County Attorney, and Edward Chew, Senior Assistant County Attorney, Orlando, for Appellant.
    Tracy A. Marshall and Rachael M. Crews of Gray Robinson, P.A., Orlando, for Appellees.
   PALMER, J.

In this eminent domain proceeding, Orange County appeals a final judgment awarding compensation for its taking of land owned by Beryle S. Buchman, Kenneth W. Buchman, J. Miles Buchman, Carol Ann Cole, Thomas Cole, Elise A. Della Rocca, Robert B. Solomon, and Alfred F. Barrett (owners). Determining that the trial court erred by issuing an improper jury instruction affecting severance damages, we affirm in part and reverse in part.

The County acquired a 3.5-acre portion of a 77-acre tract of land from the owners. The owners retained the remaining acreage. The parties disputed the amount of the owners’ severance damages, which are calculated as “the difference between the value of the [remaining] property before and after the taking.” Fla. Dep’t of Transp. v. Armadillo Partners, Inc., 849 So.2d 279, 283 (Fla.2003). The owners presented evidence that the decrease in value was approximately $4 million, whereas the County presented evidence that there was no decrease in value.

Part of the County’s evidence was expert testimony that a particular road could be vacated at a later time, even though it was shown on the County’s construction plans as remaining in place. This testimony suggested that such a road vacation would permit future access to the remaining property, thus reducing severance damages. The owners’ objection to the admission of the expert’s testimony was overruled. However, the trial court later issued the following special jury instruction, over the County’s objection:

Orange County is bound by the construction plans it has introduced into evidence regarding the design and construction of the road. You may not consider testimony from the county about what access might be permitted in the future, in an attempt to reduce severance damages.

The County contends that the trial court erred in issuing this instruction. We agree. The instruction was improper because it violated the prohibition against judicial comment set forth in section 90.106, Florida Statutes (2010), and contradicted the standard jury instruction on expert witnesses.

Section 90.106 provides that a judge may not comment to the jury upon the weight of the evidence. § 90.106, Fla. Stat. (2010). The instruction here did so, instructing the jury to give part of the County’s evidence no weight. The instruction had the effect of striking the expert’s testimony, even though the evidence had closed and closing arguments had been made. The owners had never asked the trial court to reconsider its admission of the testimony or to strike it.

The special instruction also directly conflicted with a standard instruction provided to the jury:

You have heard opinion testimony from persons referred to as expert witnesses. You may accept such opinion testimony, reject it, or give it the weight you think it deserves....

Fla. Std. Jury Instr. (Civ.) 601.2(b) (2010).

Accordingly, we reverse and remand for a new trial on the issue of severance damages. We otherwise affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

MONACO and COHEN, JJ„ concur.


text:
    Jorge RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-154.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2012.
    Rehearing and Rehearing En Banc Denied March 15, 2012.
    Deana K. Marshall of Law Office of Deana K. Marshall, P.A, Riverview, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

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

ORFINGER, C.J., MONACO and JACOBUS, JJ., concur.


text:
    Juan Alfonso HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1383.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.

      Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., and Benjamin S. Waxman, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

Twenty-six years after Juan Alfonso Hernandez (“the defendant”) entered his plea of guilty to sale of cocaine, he sought postconviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure, on the basis of newly discovered evidence. After conducting an evidentiary hearing, the trial court weighed the evidence, made factual findings regarding the credibility of the witnesses, and denied the defendant’s motion. Because the trial court’s findings are supported by competent substantial evidence, we affirm. See McLin v. State, 827 So.2d 948, 954 (Fla.2002); Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (holding that where the trial court’s findings are supported by competent substantial evidence, the appellate court must not substitute its judgment for that of the trial court as to questions of fact, the credibility of the witnesses, or the weight to be applied to the evidence).

A brief summary of the evidence is as follows. In the early morning hours of November 5, 1983, R.B., a juvenile, approached Michael Suarez asking to purchase some cocaine. Moments later, the defendant, “Beta”, and Manuel Aguiar drove up in the defendant’s white, four-door Peugeot. Beta was driving, the defendant was seated in the front passenger seat, and Aguiar was seated behind the defendant in the back right passenger seat. Suarez approached the car and spoke briefly to the occupants. According to Deputy Churchill, who was seated in an unmarked police car with Officer Orta, he observed R.B. hand some money to Suarez, Suarez hand the money to the defendant through the open passenger window, the defendant hand a plastic package containing a white substance to Suarez, and Suarez hand the package to R.B. Deputy Churchill testified that he was parked approximately twenty feet away facing the area where the drug transaction took place; the parking lot was well lit with “super bright” lamps lighting up the entire area; and he immediately recognized the car and the defendant.

R.B., Suarez, and the defendant were subsequently arrested. Suarez, ultimately provided a sworn statement wherein he testified that the defendant was the person who sold the cocaine to R.B., with Suarez acting as the intermediary. After Suarez was listed as a witness against the defendant, he was deposed by the defendant’s attorney and testified consistent with his prior sworn statement as summarized above. Twenty-six years later, after Suarez saw the defendant in jail, Suarez recanted his testimony. It is Suarez’s recantation that forms the basis of the defendant’s motion to set aside his plea.

At the evidentiary hearing conducted by the trial court, Suarez testified that the two sworn statements he provided in 1983 were false-that the person who he obtained the cocaine from was not the defendant, but rather, the backseat passenger, Agu-iar. Suarez claimed that he perjured himself in 1983 because his family had an unrelated, unfounded grudge against the defendant, and he was pressured to implicate the defendant by his father and the Assistant Public Defender, representing him in 1983.

Deputy Churchill also testified at the evidentiary hearing. He stated that he remembered this incident because it was his first and only plain clothes assignment, the first time he had witnessed a hand-to-hand transaction, and he knew the defendant. Deputy Churchill testified that he witnessed the transaction and clearly saw Suarez hand the money to the defendant and the defendant hand the packaged cocaine to Suarez.

The defendant testified that he was innocent of the charges and pled guilty based on Suarez’s expected testimony at trial. The defendant, however, admitted on cross-examination that he never told his lawyer that Aguiar was the one who provided the drugs to Suarez, and as an explanation, stated that he was “no snitch.” It was also established that: Suarez’s father is deceased; the man Suarez and the defendant are now implicating as the source of the drugs — Aguiar—is also deceased; and the statute of limitations has long passed to prosecute Suarez for the claimed perjured testimony.

In denying the defendant’s motion for postconviction relief, the trial court found Suarez and the defendant not credible. We affirm based on the totality of the circumstances including: (1) Suarez’s and the defendant’s criminal records; (2) Suarez waited twenty-six years to change his testimony; (3) Suarez’s recantation was made after the running of the statute of limitations for perjury, see Moss v. State, 943 So.2d 946, 948 (Fla. 4th DCA 2006) (permitting consideration of and a finding that the recantation lacked indicia of reliability when the recantation was made after the statute of limitations for perjury had run); (4) the defendant never told anyone else, including his lawyer, that Aguiar supplied the drugs; (5) the defendant pled guilty to the charges, not “no contest”; (6) “Florida law treats recantations with suspicion, and requires a new trial only if the court is satisfied that the recantation is true,” McLin, 827 So.2d at 955; see also Davis v. State, 26 So.3d 519, 526 (Fla.2009) (holding that recantation testimony may provide a basis to vacate a conviction if, and only if, it constitutes newly discovered evidence and “the court is satisfied that the recantation is true, and ... the recanted testimony would probably render a different outcome in the proceeding”); (7) the trial court was not satisfied that the recantation was true; and (8) “[w]e recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact,” Porter v. State, 788 So.2d 917, 923 (Fla. 2001).

Affirmed.

      . Deputy Churchill testified that: (1) the defendant's car was distinctive as it was the only Peugeot in Key West; and (2) he knew the defendant, who was approximately five feet five inches tall and weighed approximately 275 to 290 pounds, from previous encounters.

      . Both Suarez and the defendant were incarcerated at the same facility at the time of this meeting. Suarez had been convicted of subsequent crimes. The defendant violated his probation on the sale of cocaine offense by trafficking in cocaine, served his sentence, was subsequently convicted of trafficking in cocaine a second time, and was serving an enhanced sentence as a habitual offender based on the prior sale and prior trafficking cases.


author: SCHWARTZ, Senior Judge.

text:
    Tedrick PAGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-534.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, C.J., SUAREZ, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an appeal from a conviction of second degree murder as charged. The only point presented arises from the fact that the jury was instructed in accordance with the “interim” manslaughter by act instruction, see In re Standard Jury Instructions in Criminal Cases (2007-10), 997 So.2d 403, 404-405 (Fla.2008), as follows:

To prove the crime of manslaughter as a lesser included offense to second degree murder, the State must prove the following two elements beyond a reasonable doubt: One[, the victim] is dead. And two[, the defendant] intentionally caused the death of [the victim.]
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms to you.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.

(emphasis added). The issue before us is whether that instruction, like the prior version involved in State v. Montgomery, 39 So.3d 252 (Fla.2010), approving, 70 So.3d 603 (Fla. 1st DCA 2009), is fundamental error. As in the controlling case of Figueroa v. State, 77 So.3d 714 (Fla. 3d DCA 2011), we hold that it is not and therefore affirm.

The First District has held that the instruction, which is obviously contradictory on its face — saying both that it is and is not necessary to have an intention to cause death — not only does not obviate the Montgomery defect, but that it is fundamentally erroneous, requiring a new trial even in the absence of preservation below. Accord Williams v. State, 50 So.3d 1207 (Fla. 1st DCA 2010); Riesel v. State, 48 So.3d 885, 886-87 (Fla. 1st DCA 2010); Pryor v. State, 48 So.3d 159, 163 (Fla. 1st DCA 2010). This Court, however, squarely held to the contrary in Figueroa. Accord Daniels v. State, 46 So.3d 630 (Fla. 3d DCA 2010); Morgan v. State, 42 So.3d 862 (Fla. 4th DCA 2010). We both agree with and are bound by that decision. See also Moore v. State, 57 So.3d 240 (Fla. 3d DCA 2011) (alternative holding; citing Morgan with approval).

Briefly and probably unnecessarily to add to the comprehensive discussions in Figueroa and Daniels, are the observations that the present instruction is (a) “only” internally inconsistent, and thus at least partially correct on the intent issue so that (b) the erroneous part (that manslaughter by act requires an “intent to kill,” which we know from Montgomery, it does not) could have been easily remedied by a statement which called the defect to the trial court’s attention. Thus, one of the most basic elements of fundamental error — that is, it can not be cured by timely objection — does not exist.

Moreover, it is difficult to believe, much less hold, that the Supreme Court would even “authorize” a purportedly curative instruction which was fundamentally wrong.

Affirmed, direct conflict is certified with Williams, Riesel and Pryor.

      . Of course, the contentious issue involved in these cases has been laid to-rest by the second and hopefully final revision of the instruction in 2010. See In re Amendments to Standard Jury Instructions in Criminal Cases — Instruction 7.7, 41 So.3d 853 (Fla.2010).


author: RAMIREZ, J.

text:
    Marjorie ROSENKRANTZ, Appellant, v. James E. FEIT, Appellee.
    No. 3D11-709.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.

      Arnaldo Velez, Coral Gables, for appellant.
    Arthur J. Morburger, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   On Motion for Rehearing

RAMIREZ, J.

We deny appellee’s motion for rehearing, but substitute the following for the opinion issued December 14, 2011:

Marjorie Rosenkrantz appeals from an order dismissing her complaint for failure to state a cause of action. Because Rosen-krantz’ complaint states a claim for declaratory relief, we reverse.

Gertrude Feit executed a Durable Power of Attorney when she began having memory loss. . Gertrude named her daughter, Rosenkrantz, and her son, James Feit, as- attorneys-in-fact to oversee her financial affairs. Gertrude and James live in Miami-Dade County, Florida. Rosen-krantz, who lives in New York, alleges that her brother refuses fully to account for their mother’s assets, and objects to her efforts to obtain information directly from the financial institutions. Rosenkrantz contends that James’ actions impair her ability to carry out her responsibilities as a co-attorney-in-fact, and she is in doubt as to her rights under the power of attorney.

Rosenkrantz filed the instant action seeking a declaration of her rights, as well as an order for an accounting from James. After one amendment, the trial court dismissed with prejudice Rosenkrantz’ complaint for failure to state a cause of action. We review the trial court’s order of dismissal for abuse of discretion. See Acad. Express, LLC v. Broward Cnty., 53 So.3d 1188, 1190 (Fla. 4th DCA 2011) (“Generally, the standard of review of a dismissal for failure to state a cause of action is de novo. However, in cases where the complaint seeks declarative relief, the standard of review is an abuse of discretion.” (citations omitted)).

Florida’s Declaratory Judgment Act, §§ 86.11 to 86.111, Fla. Stat. (2010), gives jurisdiction to the circuit courts to grant declaratory relief. State, Dep’t of Envtl. Prot. v. Garcia, — So.3d -, 2011 WL 3300540 (Fla. 3d DCA 2011). A party “seeking declaratory relief must allege ultimate facts showing that there is ‘a bona fide adverse interest between the parties concerning a power, privilege, immunity or right of the plaintiff; the plaintiffs doubt about the existence or nonexistence of his rights or privileges; that he is entitled to have the doubt removed.’ ” Id. at-(quoting Conley v. Morley Realty Corp., 575 So.2d 253, 255 (Fla. 3d DCA 1991)).

The durable power of attorney executed by Gertrude made Rosenkrantz and James co-attorneys-in-fact. In Florida, co-attorneys-in-fact under a durable power of attorney are liable “for failure either to participate in the administration of assets subject to the power or for failure to attempt to prevent a breach of fiduciary obligations thereunder.” § 709.08(9)(d), Fla. Stat. (2006). Under Section 709.08(9)(a), “concurrence of both is required on all acts in the exercise of power.” Further, section 709.08(8) provides that an attorney-in-fact

is a fiduciary who must observe the standards of care applicable to trustees as described in s. 737.302. The attorney in fact is not liable to third parties for any act pursuant to the durable power of attorney if the act was authorized at the time. If the exercise of the power is improper, the attorney in fact is liable to interested persons as described in s. 731.201 for damage or loss resulting from a breach of fiduciary duty by the attorney in fact to the same extent as the trustee of an express trust.

Thus, those acting as co-attorneys-in-fact must be guided by the same fiduciary principles applicable to co-trustees. As our sister court has observed:

It goes without saying that co-trustees owe to each other, as well as to the beneficiaries of the trust, the duty and obligation to so conduct themselves as to foster a spirit of mutual trust, confidence, and cooperation to the extent possible. At the same time, the trustees should maintain an attitude of vigilant concern for the proper administration or protection of the trust business and affairs.

Ball v. Mills, 376 So.2d 1174, 1182 (Fla. 1st DCA 1979); see also Anton v. Anton, 815 So.2d 768 (Fla. 4th DCA 2002); Brent v. Smothers, 547 So.2d 683 (Fla. 3d DCA 1989). Co-trustees have the right to ask each other for an accounting. See Payiasis v. Robillard, 171 So.2d 630 (Fla. 3d DCA 1965); George Gleason Bogert & Amy Morris Hess, Trusts and Trustees 967 (2011).

Rosenkrantz’ complaint alleges that she sought information regarding Gertrude’s finances but was unable to obtain the information without James’ concurrence as co-attorney. Therefore, Rosen-krantz found herself on the horns of a dilemma. On the one hand, as co-trustee, Rosenkrantz had a fiduciary duty to oversee the administration of Gertrude’s finances. On the other hand, Rosenkrantz could not act in the exercise of her power without the concurrence of James.

Rosenkrantz thus sought declaratory relief to determine: 1) the extent to which she can, as a co-attorney-in-fact, act without the concurrence of a co-attorney to obtain financial information necessary to perform her duties; and 2) whether she, as one co-attorney, is entitled to an accounting from the other co-attorney. If the allegations are proven as pled, it is clear that Rosenkrantz acted properly and prudently in seeking to fulfill her fiduciary role. As a co-attorney, and co-fiduciary, Rosen-krantz had both the right and the duty to seek information regarding Gertrude’s finances from James.

Here, Rosenkrantz has alleged a bona fide dispute between herself and James concerning Rosenkrantz’ rights under the power of attorney for Gertrude. Rosen-krantz is in doubt as to her rights, and is entitled to declaratory relief to have these doubts removed. Thus, the trial court’s order dismissing Rosenkrantz’ complaint with prejudice is an abuse of discretion.

Accordingly, we reverse the order dismissing the complaint, and remand for further proceedings.

Reversed and remanded.

      . In 2011, the Florida Legislature substantially revised, rewrote and renumbered Chapter 709, and repealed sections 709.01, 709.015, 709.08 and 709.11. Ch. 2011-210, Laws of Fla. (2011). These changes became effective on October 1, 2011, and thus are not applicable to the case at bar.

      . It should be noted that the Florida Legislature addressed these very issues in its 2011 revisions to Chapter 709. Among the several significant changes, the new statutory scheme provides:
      — A principal may designate two or more persons to act as co-agents, and unless the power of attorney otherwise provides, each co-agent may exercise its authority independently. § 709.2111(1), Fla. Stat. (2011).
      — If a power of attorney requires that two or more persons act together as co-agents, one or more of the agents may delegate to a co-agent the authority to conduct banking transactions pursuant to the power of attorney. § 709.2111(6).
      — An agent may be required by a co-agent to disclose receipts, disbursements, or transactions conducted on behalf of the principal. § 709.2114(6).
      — An agent (including a co-agent) may petition a court to construe or enforce a power of attorney, review the agent’s conduct, terminate the agent’s authority, remove the agent, and grant other appropriate relief. § 709.2116(1).
      — An agent’s exercise of power may be challenged in a proceeding brought on behalf of the principal on the grounds that the exercise of the power was affected by a conflict of interest. § 709.2116(4).