author: MAKAR, J. THOMAS, J.,

text:
    Jo-Anne YAU, Appellant, v. IWDWARRIORS, CORP., A Florida Corporation; Ken Yarbrough, an Individual; and Fish Tales Marketing, Inc., d/b/a Coastal Angler Magazine of Northeast Florida, a Florida Corporation, Appellee.
    No. 1D13-1698.
    District Court of Appeal of Florida, First District.
    June 11, 2014.
    Rehearing Denied Aug. 18, 2014.

      Rutledge R. Liles and John A. Carlisle of Liles, Gavin, & George, P.A., Jacksonville, for Appellant.
    IWDWarriors, Corp., a Florida Corporation; Ken Yarbrough, an individual; and Fish Tales Marketing, Inc., d/b/a Coastal Angler Magazine of Northeast Florida, a Florida Corporation, pro se.
   MAKAR, J.

On March 23, 2012, attorney Jo-Anne Yau filed an eight-count complaint on behalf of her client IWDWarriors, Corp. (IWD) alleging that Ken Yarbrough and Fish Tales Marketing, Inc. d/b/a Coastal Angler Magazine of Northeast Florida (collectively “Fish Tales”) were liable for breaches of contract and intentional interference with IWD’s contractual relationships with third parties, namely the organization and promotion of a fishing tournament known as the “Clash,” which Fish Tales was alleged to have usurped for itself.

Fish Tales moved for summary judgment, arguing that IWD lacked standing and capacity to sue because, according to IWD’s electronic articles of incorporation, its corporate existence did not commence formally until May 7, 2012, even though the filing of its articles occurred on March 18, 2012. The trial court agreed, granting summary judgment for Fish Tales, who then filed a one-sentence motion for attorney fees under section 57.105, Florida Statutes, soon accompanied by an attorney’s fees affidavit. Yau filed a legal memorandum in response and a hearing was held in January 2013 (but no transcript of the proceedings has been filed on appeal).

On February 8, 2013, the trial court granted Fish Tales’s fees motion, entering a final judgment against Yau personally and stating that “[IWD] was a nonexistent entity at the time that the action was commenced, so Jo-Anne Yau should bear the entirety of the Defendants’ reasonable attorney fees.” It ordered Ms. Yau to pay fees totaling $7,875 plus interest. The order further stated that Yau was an officer of IWD and failed to prove she acted in good faith. On February 19, 2013, Yau filed a motion for reconsideration, which was denied on April 1, 2013. Two days later, Yau filed an amended motion for reconsideration and mentioned, for the first time, section 607.1904, Florida Statutes, which she said precluded Fish Tales from claiming IWD’s lack of formal corporate existence as a defense against claims for breach of contract and intentional interference with its contractual relationships with third parties. The trial court did not rule on the amended motion prior to Yau filing a notice of appeal.

On appeal, Yau argues that the trial court erred by granting Fish Tales’ motion for summary judgment and thereby erred by entering a final judgment imposing sanctions against her. Though Yau challenges the entry of final judgment against IWD, no notice of appeal was filed from that judgment on the merits, so we are left with only the final judgment against Yau imposing sanctions.

The focal point of her brief is the statutory argument, presented in her amended motion for reconsideration, that section 607.1904 bars Fish Tales from asserting as a defense that IWD was not yet incorporated. Indeed, there is long-standing corporation law in Florida going back at least 125 years that a person contracting with or injured by an association assumed to be acting as a corporation may not set up as a defense that the corporation was not properly incorporated. As the Florida Supreme Court said in the latter part of the 19th Century:

A person who has contracted with an association assuming to be incorporated and acting in a corporate capacity cannot, after having received the benefit of the contract, set up as a defense to an action brought by such company that the latter was not legally incorporated, or had no authority to enter into the contract in a corporate capacity. ... It is settled that a conveyance by a corporation will not be treated as invalid merely because the corporation was not formed under authority of law, and the same rule applies to transfers of personal property and choses in actions by corporations defacto.

Booske v. Gulf Ice Co., 24 Fla. 550, 5 So. 247, 251-52 (1888); Ch. 1639, Laws of Fla. (1868). This bedrock principle has been relied upon both within and without Florida over the decades (and is reflected in the first portion of section 607.1904, which is set forth below).

Vice versa, a person sued for an alleged breach of a contract with, or for' injury to, a corporation cannot raise lack of legal organization as a defense (though other grounds might exist). See Catlin Specialty Ins. Co. v. Cohen, 883 F.Supp.2d 1182, 1192 (M.D.Fla.2012). This latter principle, though not as firmly established and mentioned less frequently in the case-law as the former, is reflected in the second portion of section 607.1904, Florida Statutes (and its many predecessor statutes), which states:

No body of persons acting as a corporation shall be permitted to set up the lack of legal organization as a defense to an action against them as a corporation, nor shall any person sued on a contract made with the corporation or sued for an injury to its property or a wrong done to its interests be permitted to set up the lack of such legal organization in his or her defense.

§ 607.1904, Fla. Stat. (emphasis added). The highlighted language — literally and as applied in the limited caselaw addressing it — appears to provide a potential basis for the relief for IWD. See Catlin Specialty, 883 F.Supp.2d at 1192 (noting the argument that “the statutory term ‘lack of legal organization’ in Section 607.1904 includes administrative dissolution by the Secretary of State after incorporation, as well as the entire failure to achieve incorporation in the first instance.”). Had this statute been brought timely to the trial court’s attention, the suit against Fish Tales would not have been summarily dismissed; at a minimum, no grounds for the sanctions order under section 57.105 would have existed.

But, this statutory argument— though raised in her amended motion for reconsideration — was abandoned when Yau filed a notice of appeal without obtaining a ruling on the motion. See Fla. R. App. P. 9.020(h)(1) & (3). As a consequence, we cannot reverse on this unpre-served claim of error absent fundamental error, which is one that “goes to the foundation of the case or goes to the merits of the cause of action.” Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). An appellate court “should exercise its discretion under the doctrine of fundamental error very guardedly.” Id. To do otherwise would undermine the orderly adjudication of claims and inject a degree of arbitrariness into the appellate process.

We begin by noting that a series of missteps occurred. Fish Tales advanced a basis for dismissal/sanctions that was erroneous, Yau failed to defend the matter in a substantively-helpful and timely way, and the sanctions order would be reversible had the statutory argument been timely raised and not waived. All this does not mean fundamental error exists. Rather, there are only a limited category of errors that “courts universally allow to be raised for the first time on appeal because of the very nature of the error” including subject matter jurisdiction and judgments entered without notice that deny due process. O’Brien v. Florida Birthr-Related Neurological Injury Comp. Ass’n, 710 So.2d 51, 52 (Fla. 4th DCA 1998); See also Valeria Hendricks, Pop Quiz: Why is Fundamental Error Like Pornography?, 76 Fla. B.J. 77, 78 (2002) (“Courts are ... likely to see fundamental error in constitutional issues involving due process.”). But Yau does not claim a denial of due process; indeed, she was on notice of the alleged deficiency in her pleading and given a full opportunity to explain why her client’s case should not be dismissed and why no sanctions should be imposed. That she failed to timely raise a meritorious statutory defense (and waived it by filing a notice of appeal) was not because of a lack of due process; as such, fundamental error on this basis is not shown. See Fleischer v. Fleischer, 586 So.2d 1253, 1254 (Fla. 4th DCA 1991) (“Fundamental error, in this sense, refers to error that goes to the very heart of the judicial process, not to mistakes as to which arguably correct law or rule to apply, or as to the application of such a rule of law to the facts in the case.”).

The only other possible ground for fundamental error is a narrow category of cases primarily from the Fourth District “in which the trial court granted relief when the party obtaining the relief was, as a matter of law, not entitled to it.” O’Brien, 710 So.2d at 52 (citations omitted). One cited example is the assessment of statutory damages to which a party was not legally entitled. See Stevens v. Allegro Leasing, Inc., 562 So.2d 380, 381 (Fla. 4th DCA 1990) (reversing award as fundamental error despite no objection below). In this category of fundamental error cases, however, “the appellate courts were able to correct legal errors which went to a party’s right to recover, without having to reverse for a new trial.” Id. These cases, if we were to adopt their rationales, don’t apply here because a party’s right to recovery is not at issue; instead, at issue is an award of attorney’s fees in an ancillary proceeding under section 57.105.

This situation is more closely aligned with the Florida Supreme Court’s decision in Sanford v. Rubin, 237 So.2d 134 (Fla. 1970), which held that it was not fundamental error to allow the recovery of attorney’s fees even though the constitutionality of the statutory basis for the fees was doubtful. The personnel board, against whom the fees were awarded, failed to raise this issue in the trial court and thereby waived it; the appellate court held, however, it was fundamental error to award fees because the statute’s enactment was unconstitutional for failing to mention in its title that fees were included, a claim raised for the first time at oral argument. Id. at 136-37. The supreme court explained, pertinent here, that the “allowance of the attorneys’ fee did not go to the merits of the case or the foundation of the case. This extended litigation involved the right of petitioners to retain their employment and receive compensation for the time of their suspension by virtue of an erroneous ruling of the Personnel Board.” Id. at 137. Likewise, the wrongful award of attorney’s fees in this case — like that in Sanford — is not fundamental error that “goes to the foundation of the case or goes to the merits of the cause of action.” Id. As applied to attorney’s fees, this principle of restraint underlying the fundamental error doctrine in civil cases has deep roots. In a case from almost a century ago, the Florida Supreme Court refused to grant relief from an attorney’s fees award that was claimed (on appeal for the first time) to be impermissible. Nelson v. Seldon Cypress Door Co., 78 Fla. 203, 83 So. 286, 286 (1919) (“As the question of attorney’s fees was not presented for determination when the case was heard on its merits, such question cannot now be presented, on an application for rehearing, as a matter overlooked by the court in affirming the judgment.”).

Because unauthorized awards of attorney’s fees appear to generally fall outside the category of what might constitute fundamental error in a civil case, we are obliged to deny relief. We are mindful that the fundamental error doctrine “functions to preserve the public’s confidence in the judicial system. Relief is granted for a fundamental error not because the party has preserved a right to relief from a harmful error, but because, the public’s confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes.” Hagan v. Sun Bank of Mid-Florida, N.A, 666 So.2d 580, 584 (Fla. 2d DCA 1996) disapproved of on other grounds by Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000). While the fee award against Yau was in error and thereby may appear undeserved, public confidence could be diminished if appellate courts too freely corrected “fundamental errors” to overturn awards of this type in civil cases, particularly when more timely and substantively-helpful advocacy in the trial court could have averted the matter.

AFFIRMED.

RAY, J., concurs, and THOMAS, J., dissents with opinion.

THOMAS, J.,

dissenting.

I respectfully dissent. Because Appel-lee has failed to defend the order on appeal, and thus has failed to raise the issue of preservation, I would reach the merits and reverse on the legal basis acknowledged in the majority opinion that would require reversal, absent waiver.

      . Fish Tales filed a pro se brief, which was stricken as noncompliant and failed to file a brief thereafter.

      . See, e.g., Alropa Corp. v. Myers, 55 F.Supp. 936, 939 -940 (D.Del.1944) ("... it would appear that under the Florida law defendant is estopped from denying the payee corporation's existence at the time of the general delivery of the notes.”).


source: Caselaw Access Project

author: DAVIS, Chief Judge.

license: Public Domain

text:
    OLEAN MEDICAL CONDOMINIUM ASSOCIATION, INC., a Florida corporation, Appellant, v. Ali A. AZIMA, Trustee of that certain Living Trust Agreement dated April 17, 2006, Appellee.
    No. 2D13-370.
    District Court of Appeal of Florida, Second District.
    June 20, 2014.

      Christopher D. Donovan of Roetzel & Andress, LPA, Naples, for Appellant.
    David K. Oaks of David K. Oaks, P.A., Punta Gorda, for Appellee.
   DAVIS, Chief Judge.

Dr. Ali A. Azima brought suit against Olean Medical Condominium Association. Olean filed a counterclaim against Dr. Azi-ma. On appeal, Olean challenges the trial court’s final judgment resolving these claims. Because the trial court erred by refusing to consider Olean’s statute of limitations affirmative defense, we reverse the portion of the final judgment awarding damages to Dr. Azima. We also reverse the denial of Olean’s counterclaim because the denial of that relief appears to rely in part on the merits of Dr. Azima’s statutorily barred claim.

Dr. Azima owns one unit of a small commercial condominium complex. Maintenance of the common areas of this complex was performed through Olean, although the degree of corporate formality and structure for the periods applicable to the instant complaint are in dispute. Dr. Philip Czyz and his wife Eleonore Czyz, who were two of Olean’s corporate officers, also owned units in the complex, and due to the informal corporate structure of Ole-an at that time, any common upkeep was performed through the couple’s personal business account, with reimbursement from the unit owners as necessary. The complex was insured, but the individual owners were responsible for the upkeep of their own units.

In 2004 the complex sustained damage when Hurricane Charley hit the area. Olean’s insurance policy covered certain damages, and following an on-site visit by an adjuster, an insurance check was given to Mrs. Czyz. She paid for the repair of the common areas of the complex from these funds until they were depleted.

Immediately following the 2004 storm, Dr. Azima noticed water and roof damage to his unit and contacted Mrs. Czyz about roof repair. She responded that Olean was looking for an available roofer to survey the damage to the complex. Dr. Azi-ma apparently took this response as an agreement by Olean to cover the costs of repair to his roof. But when the insurance contractor actually inspected the roof, he concluded that although there was extenT sive roof damage to Dr. Azima’s unit, only a small portion of it was caused by the hurricane. According to the contractor, the majority of the damage was due to the roofs covering and flashing being in poor condition. This led to the instant dispute because while Olean’s insurance policy covered storm damage to common roofing elements, regular unit roof maintenance and repair was the responsibility of unit owners. Dr. Azima threatened suit if his roof repairs were not completed. But in 2005 Olean responded that it had completed the roofing repairs for which it was responsible and that it would not pay for the additional repairs. Dr. Azima then requested copies of Olean’s insurance policies and certain corporate documents. Olean provided him with copies of the policies’ declaration of coverage sheets with its insurance agent’s contact information, but it could not provide complete documentation allegedly because the documents were destroyed in the hurricane.

Although Dr. Azima did not file suit in 2005, he declared that he would not pay his designated portion of the common expenses shared by the unit owners until such time as he was provided the requested documents and his roof repairs were made. In fact, Dr. Azima did not actually file suit until January 20, 2011, instead opting to pursue alternative tactics designed to effectuate Olean’s agreement to cover further repair of the roof and other damage to his unit. When Dr. Azima did file his complaint, Olean raised the statute of limitations as an affirmative defense, claiming that Dr. Azima was barred from filing the claims because more than five years from the accrual of his action had passed. See § 95.11(2)(b), Fla. Stat. (2010) (setting forth the five-year statute of limitations for claims based in contract).

Dr. Azima did not dispute that the time for filing the action had passed. He merely argued to the trial court that Olean was equitably estopped from raising that affirmative defense because of Olean’s actions or, in the alternative, because Olean did not formally exist as an association until 2008. He also argued that equitable tolling should act to toll the time for filing the action where he was lulled or misled into waiting to file suit by Olean’s actions. It is unclear whether the trial court ever formally ruled on Olean’s pretrial motion for summary judgment based on the statute of limitations defense, but the trial court did deny Olean’s motion for judgment of dismissal made at trial, apparently based on Dr. Azima’s estoppel arguments. Following trial, the trial court entered a final judgment dismissing two of Dr. Azi-ma’s claims, finding liability and awarding damages on his third claim, and denying relief on Olean’s counterclaim.

Olean argues on appeal that it was error for the trial court to fail to consider the affirmative defense that Dr. Azima’s claim is barred by the statute of limitations. We agree. Although Dr. Azima maintains that competent, substantial evidence supports the facts on which the trial court’s legal determination is based, neither the facts nor the law support the trial court’s conclusion.

Taken in the light most favorable to Dr. Azima, the facts presented do not, under the doctrine of equitable estoppel, preclude consideration of Olean’s defense. Nothing in Olean’s conduct, intentional or otherwise, prevented Dr. Azima from timely asserting his claims. See Major League Baseball v. Morsani, 790 So.2d 1071, 1076 (Fla.2001) (“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which perhaps have otherwise existed, either of property or of contract, or of remedy, as against another person, who has in good faith relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, or of contract or of remedy.” (quoting State ex rel. Watson v. Gray, 48 So.2d 84, 87-88 (Fla.1950))).

Any factual dispute over the interpretation and meaning of Mrs. Czyz’s initial statements to Dr. Azima regarding finding a roofer for the repairs is not significant to a determination of the statute of limitations issue. The record is clear that by 2005 the limited scope of the repairs actually covered by the insurance policy was known to all parties and the cause of action had accrued. See § 95.031(1) (“A cause of action accrues when the last element constituting the cause of action occurs”). By 2005, Dr. Azima was aware that Olean was refusing to further cover his additional repairs and he was threatening legal action. Thus, unless otherwise tolled, a five-year limitations period could have expired no later than 2010, rendering Dr. Azima’s 2011 filing of the complaint time-barred.

Furthermore, Dr. Azima did not detrimentally rely on Mrs. Czyz’s initial statements because the majority of the time within which he could have filed suit still remained when he learned in 2005 that Olean would not pay for further repairs. See Delco Oil, Inc. v. Pannu, 856 So.2d 1070, 1073 (Fla. 5th DCA 2003) (“Unlike the plaintiffs in Morsani who had been lulled into complacency by the defendants’ conduct until a date after the statute of limitations had run on their tortious interference claim, here Pannu had actual notice within one month of the date that the lease was signed that the alleged breach had occurred and thus he had [four] years and [eleven] months within which to file a timely breach of contract complaint against Delco. Additionally, and perhaps more importantly, there is no evidence in the record that Delco engaged in any conduct indicating an intent to lull Pannu into a disadvantageous legal position or preventing Pannu from filing his lawsuit within the applicable five[-]year statute of limitations.”).

Moreover, Olean’s failure to turn over corporate and insurance documents did not prevent Dr. Azima from preserving his rights against the association or its individual members by filing the action when it accrued. See Delco, 856 So.2d at 1073 (concluding that defendant’s failure to respond to repeated inquiries was not a basis for equitable estoppel where the plaintiff had actual notice of all necessary facts to bring a lawsuit before the statute of limitations expired).

And there is nothing in the record to support Dr. Azima’s assertion that he detrimentally waited for the corporate documents before filing his action because Ole-an was never formalized as an association until 2008. Regardless of the ambiguous nature of Olean’s corporate status, the parties to the action were always known to Dr. Azima, and he was aware that the Czyzs were acting on behalf of Olean. He also was at least minimally aware of Ole-an’s formal restructuring in 2008, prior to the running of the statute of limitations. Any more details as to the corporate structure or insurance policies were matters appropriately addressed after the filing of the action. See generally Fla. R. Civ. P. 1.250 (describing process for correcting the misjoinder of parties by dropping or adding parties after an action is filed); see also Fla. R. Civ. P. 1.190(e) (allowing for the amendments to pleadings at any time in the furtherance of justice).

Because Dr. Azima had all of the information necessary to file an action against the parties at the time the action accrued and because the information contained in the corporate and insurance documents he claims he waited on to his detriment did not deprive him of his ability to bring suit prior to the running of the statute of limitations, the equitable tolling doctrine also is inapplicable to the instant facts. See Morsani, 790 So.2d at 1076 n. 11 (“Equitable tolling ... involves no misconduct on the part of the defendant ... [and] may delay the running of the limitations period based on the plaintiffs blameless ignorance and the lack of prejudice to the defendant.”).

For these reasons, the trial court erred in concluding that Olean was estopped from asserting that Dr. Azima’s claims were time-barred. The trial court should have considered Olean’s affirmative defense and the application of the statute of limitations to Dr. Azima’s claim. We therefore reverse the portion of the final judgment relating to Dr. Azima’s third claim for damages and remand for proceedings consistent with this opinion. Furthermore, the record clearly indicates that the trial court’s ruling in regard to Olean’s counterclaim for Dr. Azima’s alleged refusal to pay his share of the association fees was at least partially based on the determination on the merits of Dr. Azima’s third claim. Therefore, we also reverse the denial of the counterclaim and remand for the trial court to reconsider the counterclaim in light of this opinion.

Reversed and remanded.

NORTHCUTT and MORRIS, JJ., Concur.

      . Neither Olean nor Dr. Azima challenge the dismissal of Dr. Azima’s other two claims. Accordingly, we do not address the applicability of the statute of limitations defense to those claims.

      . We note that to the extent Dr. Azima's claim for damages could be read to be based on an allegation of negligence rather than breach, the four-year statute of limitations set forth in section 95.11(3) would apply. But under either theory, Dr. Azima’s 2011 suit was brought after the expiration of the statute of limitations if the cause of action accrued no later than 2005.

      . Dr. Azima claims he waited to file suit because Mrs. Czyz originally told him she was seeking a roofer for the repairs and he relied on that information and because Olean failed to provide the requested corporate records and insurance policies.


author: PER CURIAM.

text:
    Hassan Walid SHABAZZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4495.
    District Court of Appeal of Florida, First District.
    July 8, 2014.
    Rehearing Denied Aug. 19, 2014.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Lopez v. State of Florida, 135 So.3d 539 (Fla. 2d DCA 2014).

PADOVANO, WETHERELL, and MAKAR, JJ.,'concur.


text:
    Paul R. MESSER and Betty J. Messer, Appellants,v. Mark James SANDER and Julia Dils Sander, his wife, Appellees.
    No. 1D13-3084.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Rehearing Denied Aug. 21, 2014.

      Larry E. Levy of The Levy Law Firm, Tallahassee, for Appellants.
    Ross Stafford Burnaman, Tallahassee, for Appellees.
   PER CURIAM.

Appellants appeal the trial court’s order denying their request for a statutory easement pursuant to section 704.01(2), Florida Statutes, and their alternative request for a prescriptive easement. We agree that the trial court erred by denying Appellant’s request for a statutory easement; thus, the prescriptive easement issue is moot and requires no additional comment.

Factual Background

In 1968, Appellant Paul Messer and his now-deceased brother purchased 45 acres of land straddling the Leon and Jefferson County border; approximately 20 acres are in Leon County, and the remainder is in Jefferson County. In the middle of the 45 acres is what can fairly be described as swamp and wetlands. The deed conveying the aggregate 45 acres included an easement via Old Tung Grove Road which provides access to U.S. Highway 90 for the land located in Jefferson County. As the court correctly found, the only vehicular access to Highway 90 (the nearest public road) for the land located in Leon County is via Still Creek Road, which is a private road, a portion of which is the subject of this appeal and is owned by Appellees. Appellees have declined to grant Appellants a formal easement, although Appel-lees’ neighbors have done so with respect to their respective portions of the road.

After a bench trial, which included expert testimony on Appellants’ behalf, the court denied Appellants’ request, finding, in relevant part:

[Appellants] presented substantial evidence regarding the nature of [their] property and the potential difficulties in creating better access to the Leon County side of [their] parcel from Jefferson County. However, there is no evidence that any steps have been taken toward permitting nor any evidence that permits have been denied.
... [Appellants] own one 45 acre parcel of land located partially in Leon County and partially in Jefferson County, Florida.
[Appellants] do not allege a desire to use their land for a dwelling or dwellings, or for agricultural, timber raising or cutting, or stock raising purposes. Instead, they desire to sell it. [Appellants] took title with deeds that contain an express grant of easement for ingress and egress, and a public road (Old Tung Grove Road) was developed along the eastern boundary of their property.
Section 704.01(2), Florida Statutes does not become operative in the absence of an ‘absolute necessity’ to get to and from the hemmed in lands. Tortoise Island Communities, Inc. v. Moorings Ass’n, Inc., 489 So.2d 22 (Fla.1986); Hewitt v. Menees, 100 So.2d 161, 164 (Fla.1958); Parham v. Reddick, 587 So.2d 182 (Fla. 1st DCA1988)....

For the reasons explained below, we hold that the trial court erred by denying Appellants’ request for a statutory easement.

Analysis

The trial court’s interpretation and application of the statute is a question of law that is reviewed de novo. Fla. Dep’t of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 957 (Fla.2005).

In Blanton v. City of Pinellas Park, the supreme court explained that

to obtain a statutory way of necessity, the landowner must establish that the land is (1) outside of a municipality, (2) ‘being used or desired to be used’ for residential or agricultural purposes, and (3) ‘shut off or hemmed in by lands, fencing or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road.’

887 So.2d 1224, 1229 (Fla.2004) (quoting § 704.01(2), Fla. Stat. (2003)).

Here, only the second and third of these elements are disputed. The trial court acknowledged that Still Creek Road is the “only vehicular way of access in Leon County to U.S. Highway 90 East from [Appellants’] property.” (emphasis added). The trial court also acknowledged the difficult terrain on parts of the property and the “potential difficulties in creating better access to the Leon County side of [the] parcel from Jefferson County.” (Emphasis added.)

Despite these findings, the court denied the easement, based in part on the finding that Appellants “own one 45 acre parcel of land located partially in Leon County and partially in Jefferson County, Florida,” to which they did in fact have access from Jefferson County, and also on Appellants’ failure to take any steps toward permitting to allow them to build a road from Old Tung Grove Road over or through wetlands to the Leon County portion of the property located on the other side of the wetlands. The trial court erred in several respects.

First, to the extent that the court’s finding that Appellants’ deed conveyed a single 45-acre “parcel” of land was or was not correct, for purposes of section 704.01(2), this is irrelevant, because the statute clearly applies to “any land ... or portion thereof ....” (emphasis added).

The court also erred by applying an “absolute necessity” standard to the statute’s applicability. The statute provides that the right to an easement is “[b]ased on public policy, convenience, and necessity.” § 704.01(2), Fla. Stat. (emphasis added). The trial court’s reliance on Tortoise Island Communities, Inc. v. Moorings Ass’n, Inc. is misplaced, because that decision concerned “an easement by implication from a preexisting use,” which is a common-law easement codified under subsection (1) of the statute entitled “Implied Grant of Way of Necessity.” 489 So.2d 22, 22 (Fla.1986). It was in addressing that inapposite subsection of the statute that the court held that the “absolute necessity” standard applied.

The trial court also misconstrued Hewitt v. Menees, because that case did not apply an “absolute necessity” standard for the statute’s applicability. Rather, it held that the “statute does not become operative in the absence of necessity to get to and from the hemmed in lands ....” 100 So.2d 161, 164 (Fla.1958) (emphasis added). Furthermore, in that case, the need for the easement was obviated by the county’s grant of an easement of ingress and egress over another street that was actually adjacent to the purportedly hemmed-in property. This was the basis for the court’s holding that the party failed to establish necessity. Id. at 163-64.

Furthermore, in the Parham case cited by the trial court, this court addressed, inter alia, two issues of interpretation of section 704.01(2), Florida Statutes. 587 So.2d 132 (Fla. 1st DCA 1988). First, it held that “a statutory way of necessity comes into existence only if no other access exists by common law implication.” Id. at 134. The court’s second holding was that the. party seeking a way of necessity, whether it be statutory or by implication, “ ‘has the burden of proof to establish that he or she has no practicable route of ingress or egress.’ Id. at 135 (emphasis added) (quoting Moran v. Brawner, 519 So.2d 1131, 1133 (Fla. 5th DCA 1988)). Nowhere in Parham did this court hold that the statute only applies when an “absolute necessity” of ingress and egress is present.

Also, as noted, the trial court itself determined that the only vehicular access to Highway 90 for that portion of Appellants’ land located in Leon County is via Still Creek Road. Appellants presented unrebutted expert testimony concerning the swamp and wetland nature of a number of acres in the middle of the 45-acre aggregate of land, as well as the financial, legal, logistical, and physical hurdles to overcome to create any sort of ingress and egress over or through the swampy swath of land. The court found, however, that Appellants had not attempted to begin the permitting process, which was apparently the court’s finding that Appellants had not established that Still Creek Road was the nearest “practicable” road by which Appellants could gain ingress and egress to their Leon County property. Such a conclusion not only conflicts with the court’s finding that Still Creek Road is the only one affording vehicular access to Highway 90, but is also inconsistent with the statute’s practicality standard.-

In Hoffman v. Laffitte, this court held that, although the legislature incorrectly used the terms “practicable” and “practical” interchangeably in section 704.01, the statute “require[s] the establishment of the easement over the nearest route which is practical_” 564 So.2d 170, 171 (Fla. 1st DCA 1990). In making this determination, the court held that it is “appropriate for the trial court to consider all reasonably relevant factors in order to determine whether the relative burdens, benefits and expenses associated with the various potential routes made some potential routes impractical,” but cautioned that, “[wjhile the relative expense to appellants in constructing easement roadways over alternative routes was relevant, it was also appropriate for the trial court to consider other relative expenses which would be incurred by appellants, as well as the relative incon-venienee and disruption occasioned upon owners of prospective servient lands.” Id. at 172-73.

Here, the uncontroverted testimony by an environmental engineering and permitting expert was that building a road from the Leon County side of the property, over swamp and wetlands, to the Jefferson County side would cost at least $25,000 for the permitting process alone, and that the chances of obtaining the necessary permits from the local, state, and federal entities involved were approximately ten percent. He also testified that the more practical route to the nearest public road was via the already existing private road abutting Appellants’ Leon County property, i.e., Still Creek Road. Another expert opined that building a road through the swamp would be “expensive” and “absolutely” not a good idea. By contrast, there was no evidence that allowing Appellants to traverse over the portion of Still Creek Road to access their property would cause any measurable inconvenience or disruption to Appellees.

This leaves two other elements of the statute for our consideration: the “shut-off or hemmed-in” requirement, and the use to which the land is being, or is desired to be, used.

The statute provides for an easement if the land in question “is shut off or hemmed in by lands, fencing, or other improvements by other persons so that no practicable route of egress or ingress is available therefrom to the nearest practicable public or private road in which the landlocked owner has vested easement rights.” § 704.01(2), Fla. Stat. Appellees focus on the “other persons” language in the statute, apparently arguing that the statute offers relief only if the party seeking it has property that is hemmed in on all sides by property owned by “other persons.”

In our reading of the statute, however, the phrase “other persons” modifies “other improvements” (i.e., in addition to fencing), not “lands.” “[S]hut off or hemmed in by lands ... by other persons ...” is grammatically nonsensical, whereas “lands of other persons” would be correct if the intent was that all of the land hemming in the property in question was owned by other persons. (Improvements, however, are done “by” persons.) Thus, the statute can still apply when someone’s land, fencing or other improvement shuts off a portion of another’s land from access to the “nearest practicable public or private road,” provided the other statutory requirements exist.

As to the usage issue, although the court found that Appellants did not “allege a desire to use their land for dwelling or dwellings, or for agricultural, timber raising or cutting, or stock raising purposes,” but instead desired to sell it, the court overlooked the unrefuted evidence that there is a forest management plan for tree growth in effect for the land. Thus, the court’s finding on this element is not supported by the record; Furthermore, nothing in the statute nullifies its applicability simply because the land in question is for sale.

Conclusion

Based on the foregoing, we hold that the trial court erred by denying Appellants’ request for an easement pursuant to section 704.01(2), Florida Statutes. Therefore, in addition to reversing the trial court on this issue, we also reverse the trial court’s determination that Appellees are entitled to attorney’s fees pursuant to section 704.04. We remand for the trial court to make all findings and take any actions required by section 704.04 when an easement is granted pursuant to section 704.01(2).

REVERSED and REMANDED with instructions.

LEWIS, C.J, THOMAS, and CLARK, JJ., concur.

      .This statute provides, in relevant part:
      Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common-law right exists when any land ... or portion thereof, which is being used or is desired to be used for a dwelling or dwellings or for agricultural or for timber raising or cutting or stockraising purposes is shut off or hemmed in by lands, fencing, or other improvements by other persons so that no practicable route of egress or ingress is available therefrom to the nearest practicable public or private road in which the landlocked owner has vested easement rights. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles ... over, under, through, and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route ....

      . Appellants also sought a common law easement, which was denied. Appellants are not appealing that ruling which, in any event, our holding today renders moot. Appellants also contest the trial court’s finding that Appellees are entitled to attorney’s fees. That issue is resolved in case number ID 13-5096, which addresses the actual fee award.

      . Appellant, Betty Messer, is the late brother’s widow and inherited his share.


text:
    Paul R. MESSER and Betty J. Messer, Appellants, v. Mark James SANDER and Julia Dils Sander, his wife, Appellees.
    No. 1D13-5096.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Rehearing Denied Aug. 21, 2014.
    Larry E. Levy of The Levy Law Firm, Tallahassee, for Appellants.
    Ross Stafford Burnaman, Tallahassee, for Appellees.
   PER CURIAM.

Appellants appeal the trial court’s “Final Judgment for Attorneys’ Fees and Costs.” That judgment was based on Appellees having a judgment entered in their favor whereby Appellants’ request for a statutory easement pursuant to section 704.01(2) was denied. Because we reversed that judgment in the companion ease of Messer v. Sander, 1D13-3084, 2014 WL 3281822 (Fla. 1st DCA 2014), we also reverse the subject fee and costs judgment.

REVERSED.

LEWIS, C.J., THOMAS and CLARK, JJ., concur.


author: SHEPHERD, C.J.

text:
    Hannia T. LEMUS, Appellant, v. SHRIMP MARKET OF SOUTH FLORIDA, INC., Appellee.
    No. 3D13-1443.
    District Court of Appeal of Florida, Third District.
    July 9, 2014.
    Sina Negahbani, for appellant.
    Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff and Teresa Ragatz, Miami, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and SCALES, JJ.
   SHEPHERD, C.J.

ON MOTION FOR REHEARING GRANTED

Just as we recently summarily affirmed the decision of the trial court in this case by citation per curiam affirmance to our opinion in Delva v. Continental Group, Inc., 96 So.3d 956 (Fla. 3d DCA 2012), and having been in the meantime reversed by the Florida Supreme Court; we now withdraw that opinion and summarily reverse the case before us on the strength of yet higher authority. See Delva v. Cont’l Grp., Inc., 137 So.3d 371 (Fla.2014) (extending the definition of discrimination based on sex to include discrimination on the basis of pregnancy).

Reversed and remanded for further proceedings.


author: MAY, J.

text:
    Grady GRAY, Petitioner, v. Gwen E. RICHBELL and Alan Richbell as personal representatives of the Estate of Devon Leigh Richbell, deceased on behalf of themselves as surviving parents, Respondents.
    No. 4D14-1920.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.
    Rehearing Denied Sept. 2, 2014.

      Paul Shafranski and Rachel Gray Cerni of Cooney, Trybus, Kwavnick, Peets, Fort Lauderdale, for petitioner.
    Gregg Schlesinger and Zane Berg of Schlesinger Law Offices, P.A., Fort Laud-erdale, and Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for respondents.
   MAY, J.

The defendant in an automobile negligence action filed a petition for a writ of certiorari to prevent a compulsory neurological medical examination. We granted the petition on June 2, 2014, and now follow with this opinion.

The plaintiffs’ daughter was tragically killed in an automobile accident on a two-lane road. As she passed a tractor-trailer, she was rear-ended by the car behind her, who passed the tractor-trailer at the same time. The collision caused her car to veer into the oncoming lane of traffic, where she collided head-on with another truck being driven by the petitioner.

The plaintiffs alleged that the petitioner negligently failed to avoid the accident. The plaintiffs theorize that the petitioner’s age and physical condition contributed to the accident. The plaintiffs’ accident-reconstruction expert rendered his opinion on the petitioner’s fault without having reviewed the petitioner’s medical records. Nevertheless, the plaintiffs sought and obtained the petitioner’s medical records and deposed his treating physicians over the petitioner’s objection and request for a protective order.

Because of that discovery, the plaintiffs requested the petitioner be subjected to a compulsory neurological examination [CME]. The petitioner objected and argued that his medical condition had not been placed into controversy and the plaintiffs had failed to show good cause for the examination as required by Rule 1.360 of the Florida Rules of Civil Procedure.

Just prior to trial, with no action having been taken on the petitioner’s objection to the CME, the plaintiffs’ expert opined that the petitioner was suffering from dementia at the time of the accident even though none of the petitioner’s treating physicians had ever diagnosed him with this condition. At a hearing less than a week before trial, the trial court overruled the petitioner’s objection to the CME and ordered him to undergo the examination three days prior to the start of trial. From this order, the petitioner sought relief from this court. The plaintiffs filed a response the same day.

“[C]ertiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). This is such an instance.

Rule 1.360 provides: “A party may request any other party to submit to ... examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.” Fla. R. Civ. P. 1.360(a)(1). Examinations under this rule require “good cause for the examination.” Fla. R. Civ. P. 1.360(a)(2). And when the party subject to the examination has not voluntarily placed his condition into controversy, great care should be taken to insure that good cause exists, for such examinations invade the privacy rights of the person to be examined. Wade v. Wade, 124 So.3d 369, 376 (Fla. 3d DCA 2013); see also Russenberger v. Russenberger, 639 So.2d 963, 965 n. 4 (Fla.1994) (noting the United States Supreme Court’s holding in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), that “good cause” and “in controversy” requirements are not met by mere conclusory allegations).

The two essential prerequisites that must be clearly manifested are: (1) that petitioner’s mental condition is “in controversy” i.e. directly involved in some material element of the cause of action or a defense; and (2) that “good cause” be shown i.e. that the mental state of petitioner, even though “in controversy,” cannot adequately be evidenced without the assistance of expert medical testimony.

Gasparino v. Murphy, 352 So.2d 933, 935 (Fla. 2d DCA 1977).

The Second District addressed a similar issue in Wicky v. Oxonian, 24 So.3d 571 (Fla. 2d DCA 2009). There, the defendant driver collided with another vehicle after she passed out, killing the plaintiffs decedent. The plaintiff sought to test a sample of the defendant’s blood for Benzonatate. The trial court granted the request. The defendant petitioned for a writ of certiora-ri.

The district court quashed the ordered exam. Because the plaintiff had relied upon Rule 1.280 instead of Rule 1.360, it failed to present evidence to satisfy the two requirements for a compulsory examination. The court relied on its prior opinion in Gasparino, where the court focused on the defendant’s conduct and not the defendant’s mental state: “[I]t is his conduct which is at issue; specifically whether such conduct was negligent, unreasonable or involved the use of excessive force.” Id. at 574 (quoting Gasparino, 352 So.2d at 935).

Similarly, it is not the petitioner’s mental or physical health that is at issue here, but his conduct — whether he was negligent in failing to avoid a car that veered into his lane of traffic. If he was not negligent, then his physical health is immaterial; and if he was negligent, the same holds true.

Plaintiffs have not satisfied the two requirements for compelling a neurological examination of the defendant. And the plaintiffs’ accident-reconstruction expert was able to render his opinion without even having the defendant’s medical records. This proves the point. We therefore grant the petition.

Petition Granted.

DAMOORGIAN, C.J., and WARNER, J., concur.


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. James Emory CARTNER, Appellee.
    No. 5D12-4442.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and James R. Wulchak and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the trial court’s order granting the suppression motion filed by James Cartner (defendant). Determining that the police had probable cause to arrest the defendant, we reverse.

The defendant was charged by amended information with committing the crime of traveling to meet a minor for an unlawful sexual act and solicitation of a minor via a computer. The charges were based on conduct occurring during a child sex-sting operation. The defendant filed a pre-trial motion to suppress all evidence resulting from his arrest. The trial court granted the motion. This appeal timely followed.

The State contends that the trial court’s suppression order must be reversed because the court erred in concluding that law enforcement lacked probable cause to arrest the defendant. We agree.

The defendant’s charges were based on conduct occurring on October 29, 2011, the third day of the sting operation and the day of the defendant’s arrest. The facts, as testified to by the witnesses presented at the suppression hearing, are that a detective with the Citrus County Sheriffs Office was working as a “chat” person for the task force’s sting operations. On the first day of the instant sting, the detective posted a message on a dating website identifying herself as the aunt of a 14-year old girl, and stating that she and her niece were interested in “hanging out” and “having fun”. The detective portrayed both roles. Big Blues 83 responded to the detective’s initial posting. Some of the communications contained a photograph purportedly of Big Blues 83. A number of sexually explicit e-mails and instant messages from Big Blues 83 followed.

At one point, the “niece” asked if Big Blues 83 was coming over to her house. He asked where they could meet, and she said that he could come to the house or they could meet somewhere close by. He responded: “Well how about we meet somewhere close and that way if you don’t like me you can tell me and no harm done”. They then agreed to meet at a local Starbucks.

Meanwhile, the police matched the photograph in Big Blues 83’s electronic communications to a photograph of the defendant in the Driver And Vehicle Identification Database. They then provided a photograph, as well as a description of the vehicle registered to the defendant, to a take-down team located near Starbucks. When the defendant arrived at the Starbucks’ parking lot, at the appointed time and in the vehicle registered to him, he was arrested.

The trial court concluded that suppression of all evidence seized after the defendant’s arrest was warranted because the arrest was premature since there was no proof that any crime had been committed. Additionally, the court held that suppression was warranted because the State presented no evidence which established that the defendant was Big Blues 83 and, therefore, there was no probable cause to arrest him.

“To establish probable cause, the State must demonstrate that an officer had reasonable grounds to believe that the ar-restee committed a crime.” Hughes v. State, 132 So.3d 933, 935 (Fla. 1st DCA 2014). “A determination of whether certain facts give rise to probable cause is treated as a question of law and reviewed de novo.” State v. Nowak, 1 So.3d 215, 219 (Fla. 5th DCA 2008). Accord State v. Littles, 68 So.3d 976, 978 (Fla. 5th DCA 2011); McCarter v. State, 463 So.2d 546, 548-49 (Fla. 5th DCA 1985).

The trial court first concluded that the defendant’s arrest was premature because law enforcement had no evidence, prior to the arrest, establishing that Big Blues 83 was the defendant. The trial court erred in so ruling because the State introduced excerpts of electronic communications sent by Big Blues 83, and those documents contained an identification photograph next to Big Blues 83’s name. The police were able to use that photograph to determine the defendant’s identity as well as the type of vehicle which was registered in his name. When the defendant arrived at Starbucks at the designated time in the vehicle registered in his name, the police had probable cause to arrest him.

The trial court further concluded that suppression was warranted because the “supposed meeting to be held at Starbucks ... was not for purposes of having sex, but for deciding if the Defendant and the aunt ‘like’ each other enough to continue the discussion at another time. No evidence exists of any intent to engage in sexual activity at the place and time of the arrest.” We disagree.

The State’s evidence was sufficient to support an arrest on the solicitation charge. Section 847.0135 reads, in relevant part, as follows:

847.0135. Computer pornography; prohibited computer usage; traveling to meet minor; penalties
Certain uses of computer services or devices prohibited. — Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to: Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child;
commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. ...

Here, the State presented evidence indicating that Big Blues 83 knowingly used a computer to solicit the under-age “niece” to commit an illegal sex act. Transcripts of the communications between the parties establish that the defendant was the first person to explicitly mention sex between the parties, and his comments established Big Blues 83’s intent to engage in sexual contact with the under-age “niece”. REVERSED and REMANDED.

LAWSON and LAMBERT, JJ., concur.

      .Appellate jurisdiction is proper pursuant to rule 9.140(c)(1)(B) of the Florida Rules of Appellate Procedure.

      . § 847.0135(4)(a), Fla. Stat. (2010).

      . § 847.0135(3), Fla. Stat. (2010).


text:
    WE HELP COMMUNITY DEVELOPMENT CORPORATION, a Florida non-profit corporation, Appellant, v. CIRAS, LLC, an Ohio limited liability company, Appellee.
    No. 4D11-1437.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.

      Evan B. Plotka of Evan B. Plotka, P.L., Hollywood, and Lionel Darville of The Law Office of Lionel Darville, Belle Glade, for appellant.
    Richard B. Storfer and Riley W. Cirul-nick of Rice Pugatch Robinson & Schiller, P.A., Fort Lauderdale, for appellee.
   ON APPELLEE’S MOTION FOR REHEARING, REHEARING EN BANC AND CERTIFICATION

PER CURIAM.

We grant appellee’s' motion for rehearing and deny appellee’s motion for rehearing en banc and certification. We substitute the following opinion for our opinion issued on June 4, 2014.

The defendant appeals from the circuit court’s foreclosure judgment. The defendant argues that, after it did not comply with the court’s order to make payments during the pendency of the foreclosure proceedings, the court erred in entering the foreclosure judgment instead of ordering that the plaintiff be entitled to possession of the premises or some other method of enforcement of the court’s payment order pursuant to section 702.10(2)(f), Florida Statutes (2010). We disagree with the defendant’s argument and affirm.

The plaintiff filed a verified foreclosure complaint against the defendant. The plaintiff also filed an ex-parte motion for an order directing the defendant to show cause: (1) why a foreclosure judgment should not be entered pursuant to section 702.10(1), Florida Statutes (2010); or (2) why the defendant should not be required to make payments during the pendency of the foreclosure proceedings pursuant to section 702.10(2), Florida Statutes (2010). In 2010, sections 702.10(1) and (2) provided, in pertinent part:

(1) After a complaint in a foreclosure proceeding has been filed, the mortgagee may request an order to show cause for the entry of final judgment and the court shall immediately review the complaint. If, upon examination of the complaint, the court finds that the complaint is verified and alleges a cause of action to foreclose on real property, the court shall promptly issue an order directed to the defendant to show cause why a final judgment of foreclosure should not be entered..
(b) ... If a defendant files defenses by a motion or by a verified or sworn answer at or before the hearing, such action constitutes cause and precludes the entry of a final judgment at the hearing to show cause.
(d) ... If the court finds that the defendant has not shown cause, the court shall promptly enter a judgment of foreclosure.
(2) In an action for foreclosure, ... the -mortgagee may request that the court enter an order directing the mortgagor defendant to show cause why an order to make payments during the pendency of the foreclosure proceedings or an order to vacate the premises should not be entered.
(d) ... [T]he court shall, at the hearing on the order to show cause, consider the affidavits and other showings made by the parties appearing and make a determination of the probable validity of the underlying claim alleged against the mortgagor and the mortgagor’s defenses. If the’ court determines that the mortgagee is likely to prevail in the foreclosure action, the court shall enter an order requiring the mortgagor to make the payment described in paragraph (e) to the mortgagee and provide for a remedy as described in paragraph (0.
(f) In the event the court enters an order requiring payments the order shall also provide that the mortgagee shall be entitled to possession of the premises upon the failure of the mortgagor to make the payment required in the order unless at the hearing on the order to show cause the court finds good cause to order some other method of enforcement of its order.

§ 702.10, Fla. Stat. (2010).

The court entered the order to show cause as to both sections 702.10(1) and (2). In response, the defendant filed a motion to dismiss on various grounds. The defendant also filed two affidavits alleging why the court should not enter a final judgment of foreclosure and should not enter an order to make payments during the pen-dency of the foreclosure proceedings.

After a hearing, the court entered an order denying the defendant’s motion to dismiss. The defendant then filed its answer and affirmative defenses contesting the foreclosure on various grounds.

After the defendant filed its answer and affirmative defenses, the court entered an order directing the defendant to make payments during the pendency of the foreclosure proceedings pursuant to section 702.10(2). In the order, the court did not state any finding that the defendant had not shown cause why the court should not enter a foreclosure judgment pursuant to section 702.10(1). However, the order nevertheless provided that if the defendant failed to make the payments, then the plaintiff was “entitled to submit an ex parte affidavit ... and to take possession of the premises and to the entry of a Final Judgment of Foreclosure ... without further hearing.” (emphasis added).

The plaintiff later filed a verified motion for entry of a foreclosure judgment against the defendant. According to the motion, the defendant did not comply with the payment order. The court entered the foreclosure judgment against the defendant.

Shortly thereafter, the defendant filed a motion to vacate the foreclosure judgment. The defendant argued that the court’s order directing it to make payments during the pendency of the foreclosure proceedings was deficient because the court did not first determine that the plaintiff was likely to prevail in the foreclosure action pursuant to section 702.10(2)(d). The court denied the motion on the ground it was implicit within the order directing payments that the plaintiff was likely to prevail in the foreclosure action.

The defendant then filed a motion for rehearing. In that motion, the defendant argued that, after it did not comply with the payment order, the court erred in entering the foreclosure judgment instead of ordering that the plaintiff be entitled to possession of the premises pursuant to section 702.10(2)(f). According to the defendant, “Nothing within [section 702.10(2)(f) ] permits the entry of a Judgment of Foreclosure.... ” The court denied the motion for rehearing.

This appeal followed. The defendant raises several arguments, but we choose to address only its argument that, after it did not comply with the payment order, the court erred in entering the foreclosure judgment instead of ordering that the plaintiff be entitled to possession of the premises pursuant to section 702.10(2)(f). In response, the plaintiff argues that section 702.10(2)(f)’s reference to “some other method of enforcement” of the circuit court’s payment order includes the entry of a foreclosure judgment.

Because the parties’ arguments turn on an interpretation of section 702.10(2)(f), our standard of review is de novo. See State v. S.M., 131 So.3d 780, 785 (Fla.2013) (“Judicial interpretations of statutes are pure questions of law subject to de novo review.”) (citation and quotation marks omitted).

We conclude that section 702.10(2)(f) allows a plaintiff to obtain a foreclosure judgment upon a defendant’s failure to comply with a payment order entered pursuant to section 702.10(2)(d). We agree with the plaintiffs argument that section 702.10(2)(f)’s reference to “some other method of enforcement” of the circuit court’s payment order includes the entry of a foreclosure judgment. What better way to sanction a mortgagor for non-payment than to foreclose on the property?

Our conclusion is consistent with section 702.10(l)’s provision for an expedited method for handling foreclosure actions. Our conclusion also is consistent with the 2013 amendment to section 702.10. Subsection (2) now provides that the payment remedy provided therein is “in addition to any other relief that the court may award.” See Ch. 2013-137, § 6, Laws of Fla. This amendment indicates the original intent of section 702.10(2)(f) to allow a plaintiff to obtain a foreclosure judgment upon a defendant’s failure to comply with a payment order entered pursuant to section 702.10(2)(d). See D & T Props., Inc. v. Marina Grande Assocs., Ltd., 985 So.2d 43, 47 (Fla. 4th DCA 2008) (“Where the legislature expressly characterizes the intent of legislation, it is especially appropriate to consider the amended statute to determine the original legislative intent of the statute.”); see also Ch. 2013-137, § 8, Laws of Fla. (“[T]he amendments to s. 702.10, Florida Statutes, ... by this act, apply to causes of action pending on the effective date of this act.”).

We find nothing in subsection (2) to prevent the court from entering a final judgment of foreclosure. After all, before the court can enter an order requiring payments, the court must have determined the lienholder is likely to prevail on its foreclosure action. And allowing for immediate possession of the premises as a sanction for non-payment could be viewed as harsher than the final judgment of foreclosure. In the ordinary foreclosure, the lienholder more often than not has to obtain a foreclosure judgment and proceed to a judicial sale before getting possession of the premises. Having given the mortgagor an opportunity to pay the mortgage during the pendency of the foreclosure, all bets are off if the mortgagor fails to pay. It is also significant to note that these remedies do not apply to owner-occupied residential real estate.

Based on the foregoing, we affirm the court’s denial of the defendant’s motion to vacate the foreclosure judgment. We conclude without further discussion that the defendant’s other arguments on appeal lack merit.

Affirmed.

STEVENSON, MAY and GERBER, JJ., concur.

      . In 2013, the Legislature amended section 702.10. Subsection (2) now provides that the payment remedy provided therein is “in addition to any other relief that the court may award.” See Ch. 2013-137, § 6, Laws of Fla., effective June 7, 2013.


text:
    Charles FRANCIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2552.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Rehearing Denied Aug. 21, 2014.
    Charles Francis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for 'writ of prohibition is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Sandra BERGMANN, as Personal Representative of the Estate of Paul R. Bergmann, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, a governmental agency and Willie B. Wynn, individually, Appellees.
    No. 1D13-3160.
    District Court of Appeal of Florida, First District.
    July 30, 2014.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Cecilia Bradley, Senior Assistant Attorney General, and Rachel Nordby, Deputy Solicitor General, Tallahassee, for Appellee Florida Department of Transportation.
   PER CURIAM.

Appellant challenges a final order of dismissal in her negligence action for damages sustained in a collision on a roadway over which the Florida Department of Transportation (FDOT) has jurisdiction. The trial court ruled that the claim is precluded by FDOT’s sovereign immunity.

In reviewing the propriety of an order granting a motion to dismiss, we must take all the facts alleged in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Weaver v. Leon County Classroom Teachers Ass’n, 680 So.2d 478 (Fla. 1st DCA1996).

In this case, appellant sought recovery alleging that FDOT created a known hazardous condition which led to the collision. The allegations of the complaint indicate that the condition involved a hidden danger and that FDOT was aware of the hazard but failed to correct it or warn of the danger.

As explained in Department of Transportation v. Neilson, 419 So.2d 1071 (Fla. 1982), these assertions encompass an operational-level function to which sovereign immunity does not apply. See also, e.g., City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); Mann v. State Dep’t of Transp., 946 So.2d 1246 (Fla. 1st DCA 2007); Polk County v. Sofka, 803 So.2d 751 (Fla. 2d DCA 2001), review denied 821 So.2d 300 (Fla.2002).

Therefore, we reverse the order dismissing appellant’s complaint with prejudice and remand for further proceedings.

WOLF, VAN NORTWICK and RAY, JJ., concur.


text:
    IBERIABANK, a Louisiana State Bank, Petitioner, v. RHN INVESTMENTS, LTD., a Florida limited partnership, RHN Investments, Inc., a Florida corporation, Raymond H. Nordine, an individual, Respondents.
    No. 4D14-1330.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2014.

      Cristine M. Russell, Adrian Rust, Scott J. Kennelly and Timothy D. Hedrick of Rogers Towers, P.A., Jacksonville, for petitioner.
    Eric A. Lanigan, Winter Park, for respondents.
   PER CURIAM.

Iberiabank, a Louisiana State Bank, petitions for a writ of prohibition to prevent the trial court from ruling on the borrowers’ motion to determine the reasonableness of the bank’s attorney’s fees. We agree with the bank that the trial court lost jurisdiction when the bank voluntarily dismissed its foreclosure action.

The bank sued the borrowers, RHN Investments, Ltd., RHN Investments, Inc., and Raymond H. Nordine, to foreclose on real property following a breach of three commercial loans. Two short sales of the property occurred while the foreclosure action was pending. After the first sale, in accordance with the loan agreements, the bank applied the proceeds to costs and expenses first, accrued interest, and then to payment of the principal owed on the loans. Prior to the final sale, the borrowers requested and the bank provided detailed payoff figures, which included the amounts of attorney’s fees billed and fees incurred, but not billed yet. The borrowers objected to the amount of fees without a determination from the trial court but paid the full payoff amount so that the bank would release its liens on the property. The borrowers alleged that they paid the fees under duress because they were afraid of losing their buyer.

After receiving the full payoff amount, the bank voluntarily dismissed its action. Thirty days later, the borrowers filed a Motion to Determine Attorney Fees asking the court to determine the amount of attorney’s fees to which the bank was entitled. The borrowers complained the bank had unilaterally set its fees without a judicial determination and the fees were exorbitant and unreasonable.

The bank moved to strike the motion arguing that the court no longer had jurisdiction. At a hearing on the bank’s motion, the borrowers argued the court had authority to hear their motion pursuant to Florida Rule of Civil Procedure 1.525. The court subsequently denied the motion to strike, and the borrowers’ Motion to Determine Attorney Fees is deferred pending an evidentiary hearing.

The trial court lost jurisdiction when the bank filed its notice of voluntary dismissal. See Pino v. Bank of N.Y., 121 So.3d 23 (Fla.2013). The borrowers did not have an affirmative claim for relief pending when the notice was filed. Rule 1.525 does not apply because the borrowers’ motion was not seeking a judgment to tax fees or costs. The borrowers have not shown that there is any other exception to the trial court’s loss of jurisdiction.

Prohibition is an appropriate remedy. Serv. Experts, LEG v. Northside Air Conditioning & Elec. Serv., Inc., 56 So.3d 26 (Fla. 2d DCA 2010); Tobkin v., State, 777 So.2d 1160, 1163 (Fla. 4th DCA 2001).

As a result, we grant the petition for writ of prohibition.

DAMOORGIAN, C.J., WARNER and FORST, JJ., concur.


author: LEVINE, J.

text:
    Frank ROMEO and Connie Yang, s/h/a the unknown spouse of Frank Romeo, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, As Trustee For BNC Mortgage Loan Trust 2007-2, Mortgage Pass-Through Certificates, Series 2007-2, Sebastian Lakes Condominium Association, Inc., et al., Appellees.
    No. 4D14-185.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2014.
    D. John Rhodeback of Rooney & Rooney, P.A., Vero Beach, for appellants.

      K. Denise Haire of Blank Rome LLP, Boca Raton, for appellee U.S. Bank National Association.
   LEVINE, J.

Appellants appeal the trial court’s non-final order denying their motion to quash service of process. Because the affidavits of service are not regular on their face, the trial court erroneously presumed that the service of process was valid. Thus, we reverse and remand.

US Bank National Association (“US Bank”) filed a verified complaint for foreclosure of mortgage against Frank Romeo, his unknown spouse, and other defendants. The clerk of court issued alias summonses, dated September 12, 2013, for Frank Romeo and the unknown spouse of Frank Romeo. On September 23, 2013, U.S. Bank filed affidavits of service stating that the alias summonses were “[r]eceived ... on the 10th day of September, 2013,” and that they were served on September 16, 2013, upon Lena Romeo, listed as Frank’s “wife.”

Frank moved to quash service of process on him and his “unknown” spouse because the process server swore to receiving the summonses on September 10th even though they were not issued until September 12th; Lena Romeo is Frank’s mother, not his wife; Lena was not residing at Frank’s residence at the alleged time of service; and Connie Yang is his wife. Frank, Lena, and Yang all filed sworn affidavits supporting the allegations in the motion to quash.

The trial court held a hearing on Frank’s motion. Appellants, Frank and Yang, did not attend but were represented by counsel who argued that service was improper because the affidavits of service were irregular on their face. US Bank’s counsel did not present any additional evidence demonstrating that service was proper, but rather only argued that appellants failed to meet their burden because they were not at the hearing to testify. The trial court denied Frank’s motion. Appellants timely appealed.

“The denial of a motion to quash service of process is subject to de novo review. Statutes governing service of process should be strictly construed.” Sun-seeker Int’l Ltd. v. Devers, 50 So.3d 715, 717 (Fla. 4th DCA 2010) (citations omitted).

The party invoking the court’s jurisdiction has the burden of proving proper service of process. To meet that burden, a plaintiff may produce evidence of a valid return of service. “If the return is regular on its face, then the service of process is presumed to be valid _ However, if the return is defective on its face, it cannot be relied upon as evidence that the service of process was valid.”

Id. (citations omitted). “When a process server fails to strictly comply with these rules, service must be quashed.” Brown v. U.S. Bank Nat’l Ass’n, 117 So.3d 823, 824 (Fla. 4th DCA 2013).

Section 48.031, Florida Statutes (2013), governs service of process. For individual service, section 48.031(l)(a), provides:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

For substitute service, section 48.031(2)(a), provides:

Substitute service may be made on the spouse of the person to be served at any place in the county, if the cause of action is not an adversary proceeding between the spouse and the person to be served, if the spouse requests such service, and if the spouse and person to be served are residing together in the same dwelling.

Section 48.21, Florida Statutes (2013), governs returns of executions of process. Section 48.21(1) provides that the process server “shall note on a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served.” (emphasis added). Section 48.21(2) states that “[a] failure to state the facts ... required by subsection (1) invalidates the service.”

Florida courts have relied upon both the return of execution of process statute— section 48.21 — and the general service of process statutes — sections 48.081 and 48.081 — in determining whether a return is regular on its face. Compare Rosier v. Sullivan, 103 So.3d 882, 885 (Fla. 2d DCA 2012) (“[T]he determination that a return is regular on its face, no matter what type of service, is governed only by the language of section 48.21 and does not require express reference to section 48.031(l)(a) or any other statute that serves to define a specified manner of service.”), review granted, 130 So.3d 692 (Fla.2013), with Gonzalez v. Totalbank, 472 So.2d 861, 864 (Fla. 3d DCA 1985) (suggesting that in addition to deficiencies in a return under section 48.21, the lack of a requirement listed in section 48.031 could make a return of service defective on its face and invalidate service).

Here, the affidavits of service stated that the process server received the alias summonses on September 10th, but they were not issued until September 12th. Thus, the affidavits are defective on their face under section 48.21 because they actually state that they “came to hand before the summonses were even issued.” See Re-Employment Seros., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 472 (Fla. 5th DCA 2007) (holding that “the trial court was not permitted to presume that the service of process was valid” under section 48.21 where “the return of service was defective on its face because it actually stated that it came to hand before the summonses were even issued”).

Further, the process server attested that he effected substituted service upon Frank through his unknown spouse, “Lena Romeo,” and personally served her as well. However, Frank’s motion and the multiple affidavits filed in support thereof demonstrate that Lena is Frank’s mother, not his wife, and that she was not living at the residence when the service allegedly occurred. Frank’s “motion and affidavit are based on the fact that the service did not comply with section 48.031 and was therefore legally deficient,” making the affidavits of service defective on their face. See Thompson v. Dep’t of Revenue, 867 So.2d 603, 605 (Fla. 1st DCA 2004) (finding the return of service to be “legally deficient” for not complying with section 48.031 based on the respondent’s “prima facie showing that he was not served at his usual place of abode by valid substituted service” because his sworn affidavit asserted that he was separated from his wife, had not lived at the residence for over three years, and did not authorize anyone there to accept service on his behalf).

Here, because the affidavits of service are “defective on [their] face,” appellants were “not required to present clear and convincing evidence to overcome the presumption of validity.” Vives v. Wells Fargo Bank, N.A., 128 So.3d 9, 15 (Fla. 3d DCA 2012); see also Thompson, 867 So.2d at 605. Rather, “the burden shifted to [US Bank] to prove valid service.” Vives, 128 So.3d at 15; see also Thompson, 867 So.2d at 605. Appellants’ testimony would have been required only if the affidavits had been regular on their face. Vives, 128 So.3d at 15; Thompson, 867 So.2d at 605. Because the affidavits of service are not regular on their face, they “cannot be relied upon as evidence that the service of process was valid,” and “service must be quashed.” Brown, 117 So.3d at 824.

Reversed and remanded.

TAYLOR and KLINGENSMITH, JJ„ concur.


author: WALLACE, Judge.

text:
    George TUNISON III, Appellant, v. BANK OF AMERICA, N.A., successor by merger to BAC Home Loans Servicing LP, f/k/a Countrywide Home Loans Servicing, LP, Appellee.
    No. 2D13-3351.
    District Court of Appeal of Florida, Second District.
    July 30, 2014.

      P. Brandon Perkins, Brett C. Powell and Alexander Brockmeyer of The Powell Law Firm, Fort Myers; and Marcus W. Viles of Viles and Beckman, LLC, Fort Myers, for Appellant.
    Jason F. Joseph of Gladstone Law Group, P.A., Boca Raton; and Marc Douthit of Douthit Law, LLC, Miami, for Appellee.
   WALLACE, Judge.

George Tunison III, appeals the circuit court’s order denying his motion for attorney’s fees that he filed after Bank of America, N.A. (BOA), dismissed its foreclosure action against him. Because the circuit court erred in concluding that Mr. Tunison’s motion for attorney’s fees was untimely filed and legally insufficient, we reverse.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

In January 2012, BOA filed an action to foreclose a mortgage on real property owned by Mr. Tunison. The mortgage contains a provision allowing attorney’s fees to the mortgagee if it is required to take action to enforce its rights under the mortgage. Mr. Tunison responded to the mortgage foreclosure complaint with a motion to dismiss. On December 13, 2012, BOA filed a notice voluntarily dismissing the action without prejudice. When BOA filed its notice of voluntary dismissal, the circuit court had not ruled on Mr. Tuni-son’s motion to dismiss. Thus he never filed an answer or any other pleading directed to the complaint.

Within thirty days after the filing of BOA’s notice of voluntary dismissal, Mr. Tunison filed a motion for attorney’s fees. In support of his request for fees, Mr. Tunison asserted that by reason of BOA’s voluntary dismissal of the action, he was the prevailing party and was thus entitled to an award of his attorney’s fees to be paid by BOA. Notably, Mr. Tunison’s motion for attorney’s fees did not specifically reference the attorney’s fee provision in the mortgage. The motion also did not mention section 57.105(7), Florida Statutes (2011), which provides for reciprocity in the application of attorney’s fee provisions — such as the one in the mortgage— that favor only one party to a contract. After a hearing, the circuit court entered an order denying Mr. Tunison’s motion for attorney’s fees. This appeal followed.

II. FRAMING THE ISSUES In its order, the circuit court stated two grounds in support of its ruling denying Mr. Tunison’s motion for attorney’s fees. First, the circuit court noted that Mr. Tu-nison had failed to raise the issue of his entitlement to attorney’s fees in his motion to dismiss, the only paper that he had directed to the complaint before BOA filed its notice of voluntary dismissal. In support of this ruling, the circuit court cited Green v. Sun Harbor Homeowners’ Ass’n, 730 So.2d 1261 (Fla.1998), and BMR Funding, LLC v. DDR Corp., 67 So.3d 1137 (Fla. 2d DCA 2011). Second, the circuit court observed that Mr. Tunison had failed to plead a contractual or statutory basis for the requested fee award in his motion for attorney’s fees. In support of this second ruling, the circuit court cited Carman v. Gilbert, 615 So.2d 701 (Fla. 2d DCA 1992), quashed on other grounds, 641 So.2d 1323 (Fla.1994).

In addition to these two rulings, BOA raises a third basis for affirmance. The notice of voluntary dismissal filed by BOA contained the following language: “This dismissal is expressly made conditional upon Defendants agreeing to pay their own attorneys’ fees and costs.” BOA argues that Mr. Tunison is precluded from seeking an award of attorney’s fees because he “did not object to or move to strike [BOA’s] notice of voluntary dismissal.” The circuit court did not address this argument in its order. Nevertheless, under the “tipsy coachman” doctrine, we are bound to affirm the circuit court’s order if it reached the correct result, even if it reached that result for the wrong reason. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999); Johnson v. Allstate Ins. Co., 961 So.2d 1113,1115 (Fla. 2d DCA 2007).

The three issues presented for review raise questions of law arising from undisputed facts. Thus our standard of review is de novo. See Kirton v. Fields, 997 So.2d 349, 352 (Fla.2008) (citing D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla. 2003)). We will discuss these three issues separately below.

III. DISCUSSION

A. Failure to Plead Attorney’s Fees in the Motion to Dismiss.

The circuit court ruled that Mr. Tunison was not entitled to attorney’s fees because he had failed to request attorney’s fees in his motion to dismiss. Although the circuit court cited the Green case in support of its ruling, that decision actually supports Mr. Tunison’s position. Explaining the “must be pled” language in Stock-man v. Downs, 573 So.2d 835, 837 (Fla. 1991), the Florida Supreme Court said in Green:

This court’s use of the phrase “must be pled” is to be construed in accord with the Florida Rules of Civil Procedure. Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a). A motion to dismiss is not a pleading. Stockman is to be read to hold that the failure to set forth a claim for attorney fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver. Until a rule is approved for cases that are dismissed before the filing of an answer, we require that a defendant’s claim for attorney fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action. If the claim is not made within this time period, the claim is waived.

730 So.2d at 1263 (emphasis added) (footnote omitted). Here, as in Green, Mr. Tunison’s motion to dismiss was not a pleading. Because Mr. Tunison was never required to file an answer to the complaint, he did not waive his claim for attorney’s fees. His separate motion for attorney’s fees filed within thirty days of BOA’s dismissal of the action was timely filed. Id. at 1263; Nudel v. Flagstar Bank, FSB, 60 So.3d 1163, 1164 (Fla. 4th DCA 2011).

This court’s decision in BMR Funding is not to the contrary. In the BMR Funding case, the parties seeking fees had filed answers to an amended complaint but had failed to plead claims for attorney’s fees in their answers. 67 So.3d at 1139. By failing to raise the issue of their entitlement to attorney’s fees in a pleading, the moving parties waived their claim to attorney’s fees. Id. at 1141. Unlike the parties seeking attorney’s fees in BMR Funding, Mr. Tunison was never required to file an answer. It follows that this court’s holding in BMR Funding is inapplicable to the facts of this case.

B. Failure to Plead a Contractual or Statutory Basis for Attorney’s Fees.

The circuit court also denied Mr. Tunison’s' motion for attorney’s fees because he failed to allege a contractual or statutory basis for an award of attorney’s fees in his motion. In support of this ruling, the circuit court cited this court’s decision from 1992 in Carman v. Gilbert. In Carman, this court interpreted the supreme court’s decision in Stockman, to mean that a pleading seeking attorney’s fees “must demonstrate: (a) the contractual or statutory basis for an award, (b) why the opposing party should be obligated to pay the award, and (c) the obligation of the moving party to pay his or her attorney.” 615 So.2d at 704. However, the Carman court’s reading of Stockman was abrogated ten years later by the supreme court’s decision in Caufield v. Cántele, 837 So.2d 371 (Fla.2002). In Caufield, the supreme court clarified its earlier decision in Stockman concerning the necessity for specificity in pleading a claim for attorney’s fees as follows:

[TJhis court’s holding in Stockman does not expressly require a specific pleading of the statutory or contractual basis of a claim for attorney’s fees. See Stockman, 573 So.2d at 837. In Stock-man, we reasoned that merely pleading a claim for attorney’s fees is sufficient to notify the opposing party and allow it to consider the claim in a decision on whether to proceed. Therefore, we decline to extend our holding in Stockman to impose a stricter requirement for pleading a claim for attorney’s fees. We hold that the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.

Id. at 377-78. In accordance with Cau-field, a party is not required to plead a ground for attorney’s fees with specificity. See United Am. Lien & Recovery Corp. v. Primicerio, 924 So.2d 848, 853 (Fla. 4th DCA 2006); Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579, 584 (Fla. 5th DCA 2003). Thus the circuit court erred in relying on Carman to hold Mr. Tunison to a stricter standard for pleading entitlement to attorney’s fees than was required by the supreme court in Caufield.

C. The Conditional Language of the Voluntary Dismissal.

BOA argues that the conditional language in its notice of voluntary dismissal precluded Mr. Tunison from pursuing a claim for attorney’s fees. The difficulty with this argument is that the notice of voluntary dismissal was a unilateral document. Mr. Tunison was not a party to BOA’s notice of voluntary dismissal. Neither Mr. Tunison nor his attorney signed the notice or otherwise indicated an agreement to be bound by BOA’s self-serving declaration that the “Defendants” were to pay their own attorney’s fees and costs. Not surprisingly, BOA does not cite any authority in support of its argument on this point. The condition in the notice of voluntary dismissal purporting to preclude Mr. Tunison from recovering his attorney’s fees is not binding upon him. See Carey v. State Farm Fire & Cas. Co., 848 So.2d 1274, 1275-76 (Fla. 2d DCA 2003); Sec. Profls, Inc., ex rel. Paikin v. Segall, 685 So.2d 1381, 1383 (Fla. 4th DCA 1997) (“As a general rule, parties that are not included in a stipulation for settlement cannot be bound by its provisions.”); Video Super Stores of Am., Inc. v. Mastriana, 575 So.2d 326, 326 (Fla. 4th DCA 1991).

IV. CONCLUSION

For the foregoing reasons, we reverse the circuit court’s order to the extent that it denied Mr. Tunison’s request for attorney’s fees. We affirm the circuit court’s order to the extent that it denied Mr. Tunison’s request for costs. On remand, absent an agreement by the parties on the amount of a reasonable fee for Mr. Tuni-son’s attorneys, the circuit court shall conduct an evidentiary hearing to determine the amount of attorney’s fees to which Mr. Tunison is entitled.

Affirmed in part; reversed in part; and remanded.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . The circuit court denied Mr. Tunison’s request for costs as well as his request for attorney’s fees. On this appeal, the parties have not briefed the issue of costs, presumably because Mr. Tunison did not incur any taxable costs. In any event, we do not address the issue of Mr. Tunison’s entitlement, to an award of costs because the parties have not briefed the issue.


author: MORRIS, Judge.

text:
    Jeffrey R. FULLER, Appellant, v. Nancy Lorraine Elizabeth Dube FULLER n/k/a Nancy Lorraine Elizabeth Dubay, Appellee.
    No. 2D13-2962.
    District Court of Appeal of Florida, Second District.
    July 30, 2014.

      Jeffrey R. Fuller, pro se.
    Nancy Lorraine Elizebeth Dube Fuller, pro se.
   MORRIS, Judge.

Jeffrey Fuller, the former husband, appeals an amended order on Nancy Dubay, the former wife’s motion for civil contempt. We reverse that portion of the trial court’s order finding him in contempt, but we affirm the remainder of the order without comment.

The parties married in 1997 and have three adult children. In 2007 a final judgment was entered dissolving the marriage. In 2008 a supplemental final judgment was entered ordering the former husband to pay $4500 a month in permanent alimony to the former wife. In 2012 the trial court entered an order finding the former husband in contempt for failing to pay the court-ordered alimony to the former wife. This court “affirm[ed] without further comment the trial court’s finding that the [fjormer [hjusband had the present ability to pay the required sums and its holding him in contempt for failing to do so.” Fuller v. Fuller, 129 So.3d 394, 396 (Fla. 2d DCA 2013). But we reversed for the trial court to strike language finding that the former husband had hidden sources of income because that specific issue had not been argued below. Id.

In 2013, the former wife filed another motion for contempt. The trial court held a hearing on May 20, 2013, and orally pronounced that “the [mjotion for [cjon-tempt is denied for lack of proof of a purge.” On May 29, 2013, the trial court entered a written order on the former wife’s motion for contempt finding the former husband in contempt and entering a money judgment for the former wife. The trial court, however, denied the former wife’s request to incarcerate the former husband on the basis that “the [fjormer [wjife failed to establish a purge amount that the [fjormer [hjusband could pay.” The former husband filed a motion for rehearing and reconsideration, and on June 19, 2013, the trial court entered an amended order, reducing the amount of arrearages and the money judgment to $90,314.46.

On appeal, the former husband argues that the trial court erred in finding him in contempt in its written order because the former wife did not present evidence of the former husband’s present ability to pay the court-ordered alimony and because the trial court orally denied the former wife’s motion for contempt.

The amended written order finding the former husband in contempt is inconsistent with the trial court’s oral ruling denying the motion for contempt. It appears that the trial court may have merged the distinct issues to be addressed in a civil contempt proceeding in family support matters set forth in Bowen v. Bowen, 471 So.2d 1274,1278 (Fla.1985).

[Tjhe initial order or judgment directing a party to pay support or alimony is predicated on an affirmative finding that the party has the ability to pay. This initial judicial determination creates, in subsequent proceedings, a presumption that there is an ability to pay. In a civil contempt proceeding for failure to pay child support or alimony, the movant must show that a prior court order directed the party to pay the support or alimony, and that the party in default has failed to make the ordered payments. The burden of producing evidence then shifts to the defaulting party, who must dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations. The court must then evaluate the evidence to determine whether it is sufficient to justify a finding that the defaulting party has willfully violated the court order. Once the court finds that a civil contempt has occurred, it must determine what alternatives are appropriate to obtain compliance with the court order. If incarceration is deemed appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.

Id. (emphasis added).

We note that the record supports a finding of contempt because the former wife satisfied her burden and the former husband failed to dispel the presumption that he had the ability to pay. See Driggers v. Driggers, 127 So.3d 762, 764 (Fla. 2d DCA 2018) (“Unquestionably, the final judgment of dissolution created a presumption that [the former husband] has the ability to pay alimony. He bears the burden to show that he can no longer pay due to changed circumstances.”). Yet, the trial court specifically stated that “the [m]otion for Contempt is denied for lack of a proof of purge.” It appears that the parties and the trial court were concerned only with whether the former husband had the ability to pay the substantial purge amount and whether the trial court could order incarceration. It is not clear if the trial court found that a civil contempt had not occurred or if a finding of civil contempt is implicit in the trial court’s ruling on the purge/incarceration issue and the entry of a money judgment against the former husband; accordingly, we reverse the portion of the order finding the former husband in contempt and remand for the trial court to make findings in accordance with the procedure set forth in Bowen.

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., and CASANUEVA, J., Concur.

      . The former wife also filed a motion to disburse arrearages. The trial court denied the former wife’s motion to disburse arrearages but granted a money judgment against the former husband in the amount of $90,314.46.