author: LAGOA, J. ROTHENBERG, J.

text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, etc., Appellant, v. Evelyn LOPEZ-BRIGNONI, et al., Appellees.
    No. 3D10-2024.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.
    Rehearing Denied June 26, 2013.

      Clarke Silverglate and Wesley'R. Parsons, Miami, for appellant.
    Weiss Serota Helfman Pastoriza Cole & Boniske and Joseph Serota, Miami; Gross-man Roth and Robert C. Gilbert, Aventu-ra; Lytal, Reiter and William S. Williams, West Palm Beach; Berman DeValerio and Michael J. Pucillo, Palm Beach Gardens, for appellees.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

The Florida Department of Agriculture and Consumer Services (“Department”) appeals a non-final order granting an amended.motion for class certification filed by the representatives of a putative class of Miami-Dade County homeowners (“homeowners”) affected by the Department’s Citrus Canker Eradication Program (“CCEP”).

I. FACTUAL AND PROCEDURAL HISTORY

The proceedings below were initiated on behalf of the homeowners to recover compensation for the destruction of healthy residential citrus trees by the Department pursuant to its CCEP. After this Court remanded the matter for a hearing on class certification, Fla. Dep’t of Agric. v. In re Citrus Canker Litig., 941 So.2d 461 (Fla. 3d DCA 2006), the trial court conducted a three-day evidentiary hearing on the issue of certification. The homeowners sought to certify the following class under Florida Rule of Civil Procedure 1.220:

All owners of citrus trees situated within Miami-Dade County, incorporated or otherwise, not used for commercial purposes, which were not determined by the Department to be infected with citrus canker and were destroyed under the CCEP on or after January 1, 2000 (the “Class”).

Following the hearing, the trial court entered a detailed, twenty-six page order granting the homeowners’ amended motion for class certification and certified the class. This appeal followed. Because we find no abuse of discretion we affirm the certification.

II. ANALYSIS

On appeal, the Department raises four arguments. Specifically, the Department asserts that: (1) the loss of the trees is not compensable because the destroyed citrus trees constituted a public nuisance; (2) the homeowners have neither a private cause of action for additional compensation under section 581.1845, Florida Statutes, nor a claim for inverse condemnation under Patchen v. Florida Department of Agriculture & Consumer Services, 906 So.2d 1005 (Fla.2005); (3) the trial court applied an improper measure of damages for the destroyed trees; and, (4) the homeowners are not suitable class representatives because they are not committed or able to pay the costs of the litigation. We find no merit to any of the Department’s four arguments, and affirm the trial court’s order granting class certification. We do, however, address the Department’s second and third arguments.

A. Private Right of Action vs. Inverse Condemnation

With regard to its second argument, the Department asserts that section 581.1845, Florida Statutes (providing for “compensation to eligible homeowners whose citrus trees have been removed under a citrus canker eradication program”) does not create a private cause of action, and further, that the homeowners’ inverse condemnation claim is precluded by Patchen. The Department’s argument essentially challenges the homeowners’ standing to assert their statutory and inverse condemnation claims and is relevant to its argument in the certification context to the extent it implicates that threshold question of law. See Ferreiro v. Phila. Indem. Ins. Co., 928 So.2d 374, 376 (Fla. 3d DCA 2006).

The provision of the Florida Constitution providing that “[n]o private property shall be taken except for a public purpose and with full compensation,” Art. X, § 6(a), Fla. Const., is self-executing; therefore, “it is immaterial that there is no statute specifically authorizing recovery for loss.” Dep’t of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 521 So.2d 101, 103 n. 2 (Fla.1988). “[T]he point is that the common law and statutory provisions for inverse condemnation do not displace the constitutional requirement for just compensation....” Dep’t of Agric. & Consumer Servs. v. Bogorff, 35 So.3d 84, 90 (Fla. 4th DCA 2010), review denied, 48 So.3d 835 (Fla.2010), cert. denied, — U.S. -, 131 S.Ct. 2874, 179 L.Ed.2d 1188 (2011).

The relevant compensation portion of Florida’s Citrus Canker Law, § 581.1845(4), Fla. Stat. (2006), provides:

The specification of a per-tree amount paid for the residential citrus canker compensation program does not limit the amount of any other compensation that may be paid by another entity or pursuant to court order for the removal of citrus trees as part of a citrus canker eradication program.

As the Florida Supreme Court has stated:

[The] Citrus Canker Law sets a compensation floor that is consistent with the established principle that “the determination of what is just compensation ... is a judicial function that cannot be performed by the Legislature.”

Haire v. Fla. Dep’t of Agric. & Consumer Servs., 870 So.2d 774, 785 (Fla.2004) (quoting State Plant Bd. v. Smith, 110 So.2d 401, 407 (Fla.1959)); see also Patchen, 906 So.2d at 1008 (“[W]e conclude that the schedule established by the Legislature sets a floor but does not determine the amount of compensation. When the State destroys private property, the State is obligated to pay just and fair compensation as determined in a court of law.” (quoting Haire, 870 So.2d at 785)).

In sum, it is not only beyond legislative purview to displace the constitutional requirement of just compensation upon a taking, but section 581.1845 expressly contemplates the entry of a court order obligating the State to compensate a homeowner for the destruction of his or her residential citrus trees under the CCEP in excess of the statutory per-tree amount. The Florida Supreme Court, finding the statute remedial, gave section 581.1845 its plain meaning, “which is to provide compensation to homeowners who had trees destroyed on or after January 1, 1995.” Patchen, 906 So.2d at 1008. Although the concurring and dissenting opinions in Patchen suggest concern over whether the majority opinion impliedly eliminated the right to pursue an inverse condemnation claim for the destruction of residential citrus trees, the majority opinion limits the scope of its opinion to the certified question posed. See Patchen, 906 So.2d at 1005-09. Accordingly, “[i]f the compensation required by the Constitution exceeds a statutory amount, the State will have to pay that amount.” Bogorff, 35 So.3d at 91.

B. Measure of Damages

With regard to the proper measure of damages, the Department argued below that the exclusive lawful measure of damages for the destroyed trees was the diminution in value of the homeowners’ real property. The homeowners, instead, sought only the “replacement cost” of their lost trees as full compensation. The trial court adopted the replacement cost of the destroyed citrus trees as the measure of damages. On appeal, the Department argues that the trial court abused its discretion when it failed to adopt the diminution in value of the homeowners’ real property as the proper measure of damages. For the following reasons, we cannot find that the trial court abused its discretion by using replacement cost as the measure of damages in determining whether to certify the class.

First, although the Department would limit damages to the diminution in value of the homeowners’ real property, it is widely accepted that an award measured by the cost of replacing the destroyed property is a proper measurement of damages. See, e.g., Atl. Coast Line R.R. Co. v. Saffold, 130 Fla. 598, 178 So. 288, 290 (1938) (“If property on the land is injured or destroyed, the measure of damages is the value of the property injured or destroyed.”); Fiske v. Moczik, 329 So.2d 35 (Fla. 2d DCA 1976) (proper measure of plaintiffs damages was the replacement cost of the trees removed from the plaintiffs property).

Indeed, this measure of damages has been approved by the Fourth District in a pair of decisions arising out of the same case. In Florida Department of Agriculture & Consumer Services, v. City of Pompano Beach, 829 So.2d 928, 931 (Fla. 4th DCA 2002), the Fourth District affirmed an order certifying a class of Broward County homeowners challenging the destruction of citrus trees under the CCEP, and held that the trial court did not abuse its discretion in adopting the replacement cost of the destroyed trees as the correct measure of damages. After that case proceeded to final judgment, in Bogorff, 35 So.3d at 91, the Fourth District again affirmed as to the measure of damages and found that replacement cost was proper.

Likewise, the nature of the damages awarded in an inverse condemnation case is “dictated by the particular facts of the case.” Pompano Beach, 829 So.2d at 931; see, e.g., Dep’t of Agric. & Consumer Servs. v. Polk, 568 So.2d 35, 43 (Fla.1990) (affirming an award of damages for the “prospective net revenue” the immature citrus trees would have produced if allowed to reach maturity); Dade Cnty. v. Gen. Waterworks Corp., 267 So.2d 633 (Fla.1972). Thus, the trial court did not abuse its discretion when it adopted the replacement cost as the measure of damages in determining whether to certify the class.

The Department next argues that even if the appropriate measure of damages is replacement cost, this methodology for compensating the homeowners lacks the commonality required for class treatment because the homeowners are seeking damages that are entirely subjective. We find the Department’s argument without merit as the homeowners have specifically limited their claim for damages in the amended motion for class certification to the replacement cost of the destroyed trees, and the homeowners are not seeking subjective damages such as loss of shade, ornamentation, fruit, or privacy. As the trial court found in its order granting the amended motion for class certification, although the amount of compensation for the replacement cost of the destroyed trees may differ among homeowners, “the methodology for establishing compensation will result in a uniform result, thus avoiding the necessity of holding individual damage hearings.” Therefore, the replacement cost measure of damages serves as an adequate methodology for determining any possible compensation to the homeowners. See Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 113 (Fla.2011) (stating that predominance requirement was met where any variance in damage recovery between the class members was calculable by using a systematic formula); Morgan v. Coats, 33 So.3d 59, 65 (Fla. 2d DCA 2010) (“[I]n-dividualized damages inquiries do not preclude class certification.”); Ouellette v. Wal-Mart Stores, Inc., 888 So.2d 90, 91 (Fla. 1st DCA 2004) (“[T]he individualized nature of their damages claims should not bar certification of the class.”); see also Broin v. Philip Morris Cos., 641 So.2d 888, 891 (Fla. 3d DCA 1994) (“Entitlement to different amounts of damages is not fatal to a class action.”). Compare Castin v. Fla. Dep’t of Agric. & Consumer Servs., 901 So.2d 1020, 1021 (Fla. 4th DCA 2005) (affirming denial of certification where damages sought included severance damages to real estate, the fruit provided by the trees, as well as the shade, aroma, blossoms, and “other values for which people treasure citrus in Florida” because it would require individual trials for each homeowner); Kia Motors Am. Corp. v. Butler, 985 So.2d 1133 (Fla. 3d DCA 2008) (reversing class certification where individual inquiry would be necessary to determine liability and damages in the case of each class member); Execu-Tech Bus. Sys., Inc. v. Appleton Papers, Inc., 743 So.2d 19, 22 (Fla. 4th DCA 1999) (affirming denial of class certification where record supported trial court’s determination that there was “no reasonable methodology for generalized proof of class-wide impact and damages”).

Because the trial court did not abuse its discretion, we affirm the order certifying the class.

Affirmed.

SUAREZ, J., concurs.

ROTHENBERG, J.

(dissenting).

INTRODUCTION

While I agree with the bulk of the majority’s opinion, I respectfully disagree with its analysis in section II.B approving the damages methodology advanced by the homeowners. The majority correctly notes that the determination regarding the proper measure of damages is dictated by the facts and circumstances of each case, Dep’t of Agric. & Consumer Servs. v. Bogorff, 35 So.3d 84, 91 (Fla. 4th DCA 2010); the “replacement cost” methodology has been approved as a measure of damages in cases where trees are removed from real property, id.; Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928, 931 (Fla. 4th DCA 2002); Fiske v. Moczik, 329 So.2d 35, 37 (Fla. 2d DCA 1976); and these principles apply in inverse condemnation cases, Bogorff, 35 So.3d at 91; City of Pompano Beach, 829 So.2d at 931.

I do not take issue with these well supported propositions. I take issue with the damages formula crafted by the homeowners, which they contend can accurately and uniformly calculate the replacement cost of each of them 247,927 trees. As I will demonstrate below, this is simply not true. The formula is deficient as a matter of law. Accordingly, I would reverse class certification on the basis that the homeowners have failed to satisfy their burden of proffering an accurate and uniform methodology to calculate damages on a class-wide basis. See Castin v. Fla. Dep’t of Agric. & Consumer Servs., 901 So.2d 1020, 1021 (Fla. 4th DCA 2005); Execu-Tech Bus. Sys., Inc. v. Appleton Papers Inc., 743 So.2d 19, 21-22 (Fla. 4th DCA 1999); see also Klay v. Humana, Inc., 382 F.3d 1241, 1259-60 (11th Cir.2004), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008).

THE CITRUS CANKER ERADICATION PROGRAM

In November 1995, citrus canker was discovered on residential properties in Broward, Dade, and Manatee counties. Patchen v. Fla. Dep’t of Agric. & Consumer Servs., 906 So.2d 1005, 1006 (Fla.2005). “Citrus canker is a disease that is caused by citrus canker bacteria, which attack the fruits, leaves and stem of citrus plants.” Haire v. Fla. Dep’t of Agric. & Consumer Servs., 870 So.2d 774, 778 (Fla.2004). “Although the fruit of an infected tree remains edible, the disease causes defoliation, fruit drop and loss of yield, as well as blemishes on the fruit and a loss of quality.” Id.

The Florida Department of Agriculture and Consumer Services (the “Department”) was assigned the task of eradicating the citrus canker strain. Ultimately, the task would be challenging because citrus canker is “difficult to control,” as it is “spread from tree to tree primarily by wind-driven rain or the contamination of equipment or plant material.” Id. To remedy the problem, the Department established the Citrus Canker Eradication Program, pursuant to which the Department removed all citrus trees infected with or exposed to citrus canker. Initially, a tree was determined to be “exposed” to citrus canker if it was located within a 125-foot radius of an infected tree. However, the 125-foot radius proved to be “inadequate,” as “it only captured about thirty to forty-one percent of infection that spread from a diseased tree.” Id.

In March 1999, the Citrus Canker Technical Advisory Task Force, a body of regulatory individuals, scientists, and citrus industry representatives, unanimously recommended that the Department adopt a policy to destroy trees within a 1900-foot radius of a diseased tree. Id. at 779. On January 1, 2000, the Commissioner of Agriculture adopted the recommendation, and the 1900-foot buffer zone policy went into effect. Patchen, 906 So.2d at 1006; see also § 581.184(2)(a), Fla. Stat. (2002) (“The department shall remove and destroy all infected citrus trees and all citrus trees exposed to infection.”); § 581.184(l)(b), Fla. Stat. (2002) (‘“Exposed to infection’ means citrus trees located within 1,900 feet of an infected tree.”). Pursuant to this policy, the Department destroyed hundreds of thousands of citrus trees across the state.

THE CLASS ACTION

In late 2000, Miami-Dade County homeowners filed the instant lawsuit, alleging that the Department’s destruction of their healthy, uninfected residential citrus trees constituted a taking, requiring full compensation under Article X, section 6(a) of the Florida Constitution. In June 2010, the trial court granted the homeowners’ motion for class certification, defining the class as:

All owners of citrus trees situated within Miami-Dade County, incorporated or otherwise, not used for commercial purposes, which were not determined by the Department to be infected with citrus canker and were destroyed under the CCEP on or after January 1, 2000....

The class is comprised of 88,630 homeowners, whose 247,927 healthy citrus trees were destroyed pursuant to the Citrus Canker Eradication Program.

THE TRIAL COURT’S CONCLUSION THAT PREDOMINANCE WAS SATISFIED

The trial court premised its determination that the homeowners satisfied the “predominance” requirement set forth in Florida Rule of Civil Procedure 1.220(b)(3) on its conclusion that “the damage methodology proposed by Plaintiffs represents a simple, straightforward and effective method for calculating the replacement cost of the destroyed trees on a classwide basis.” The trial court explained its reasoning as follows:

Mr. Hoyer explained that he will determine the replacement cost of the homeowners’ trees on the date they were destroyed by using records created by the Department which memorialize the variety, height, condition and location [] of the Class members’ trees shortly before their destruction, and various sources of pricing information commonly utilized by professional tree appraisers. Mr. Hoyer testified that these are the same factors he uses in appraising other residential trees: tree size, species, condition and location.
Contrary to the Department’s arguments, this Court finds that the determination of compensation will not involve individualized determinations, requiring thousands of mini-trials. In any event, difference in damages will not ordinarily preclude class certification. While the amount of compensation applicable to each Class member — the replacement cost for each uninfected citrus tree destroyed — is unknown at this stage of the proceedings, the Court concludes, based on the testimony of Mr. Hoyer, that the amount of compensation will be easily calculable through the use of a simple, straightforward methodology making use of the Department’s own records as well as readily available information concerning the replacement cost of citrus trees.

(citation omitted). These findings are belied by the record. In reality, the testimony of Eric Hoyer plainly demonstrates that there is no practicable, uniform way of accurately calculating the replacement value of each of the 247,972 trees in this case.

MR. HOYER’S PROPOSED FORMULA

In devising his proposed formula, Mr. Hoyer relied on the Guide for Plant Appraisal (“the Guide”), which he admitted is the only authoritative text concerning the appraisal of trees. Mr. Hoyer acknowledged that, under the Guide, the “ideal” method for calculating the replacement cost of citrus trees is “the trunk formula method,” which prices the replacement value of a “tree based on its cross sectional area, which is related to the trunk diameter.” Mr. Hoyer, however, could not proceed under the “trunk formula method” because the Department did not collect information regarding the trunk diameters in this case.

Mr. Hoyer was thus forced to settle on one of the alternative replacement cost formulas set forth in the Guide, which requires an individualized analysis of four factors: height, species, condition, and location. According to Mr. Hoyer, however, the “species” factor is not relevant in this case, since his review of the citrus market apparently revealed that all citrus trees of comparable heights share an equal value, regardless of species.

Thus, the starting point in Mr. Hoyer’s proposed formula is height. After studying the market for citrus trees, Mr. Hoyer proposed to establish an initial value for each tree based on height, on a foot-by-foot basis. The Guide would then require that the initial value be depreciated by each tree’s condition and location attributes, purportedly yielding its replacement value. As Mr. Hoyer stated:

[The height] would establish a base, what we call a basic value or replacement value for those plants, for those citrus trees. And then the value would be depreciated by the condition and the location factors. That is a subjective value determined by the appraiser.

The validity of this formula as a measure of replacement cost is of no moment because Mr. Hoyer admittedly deviated from it. While the plaintiffs have data reflecting the height and general condition of each tree, they do not possess, and cannot practicably obtain, sufficient information to accurately apply a location discount to each tree in this case.

To correctly apply a location discount, the Guide requires individualized consideration of three location attributes: site; contribution; and placement. On direct examination, Mr. Hoyer explained:

Well, there are three sub-parameters under location. There’s' what’s called the site, and there’s the contribution and the placement. The site is the site itself of the home, you know, the type of neighborhood that it’s in, how expensive is the home, this type of thing.
The contribution is what are individual trees, what is that tree contributing to the, to that property. Is it providing shade. Is it a buffer; that type of thing. Is it under a power line, and so on and so forth.
And the placement of the tree. Is the tree placed in such a manner that it is contributing to the property. And you take in a number of factors, there’s a lot of factors that play into that.

Unfortunately, the plaintiffs do not possess any information regarding the site, contribution, or placement of any of the trees. More importantly, Mr. Hoyer admitted that obtaining such particularized information and accurately applying the location discount to each tree would not be “practical” in a case featuring 247,972 trees spread across Miami-Dade County.

A. I didn’t have the advantage of looking at each and every property and because of the number of properties involved, it wouldn’t be practical to go through that exercise.... [W]e didn’t have much information on location. And it wouldn’t be practical to do that for a quarter of a million trees.
Q. Instead of using a 75 percent code across the board for every single tree in Dade County, instead of doing that, if you were to really make an actual assessment of the percentage location discount for a specific particular tree, but do that for every tree, that would not be a practical thing you could do?
A. Not very practical. That’s correct. Which is one of the reasons we came up with a, I came up with a generic location factor in dealing with the class here.

Mr. Hoyer’s proposed solution was to alter the formula by crafting an “across-the-board” location discount and applying it to all of the 247,972 trees, without regard to their actual location attributes. Specifically, Mr. Hoyer “came up with” a location discount multiple of .75 to be applied uniformly to each tree — in other words, a diminishment of twenty-five percent of each tree’s value after it is discounted for its condition.

So I came up with a range of location percentages; again, it’s from zero to a hundred percent, I came up with a range of location percentages that I thought would be reasonable in a class situation.
Generally speaking, there’s one to three trees on a property. In general, they’re in the side yard or back yard, you know. In general, the trees are 10 to 20 feet tall and so forth. So with that information, taking an average situation for the class, I came up with a range of about 67 to 85 percent for location value and settled on a median of 75 percent.

When asked to elaborate how he “came up with” the multiple of .75, Mr. Hoyer explained:

I just — again, an appraisal is a subjective art, and I felt that was a reasonable discount.... And because most of these trees were in the side yard or in the backyard, they weren’t necessarily a focal point of someone’s landscaping, but the trees did have value to the homeowners, as we heard earlier, I felt that was a reasonable discount.

On cross examination, counsel for the Department emphasized the obvious problems with applying a location discount in an across-the-board fashion, rather than on an individual basis.

Q. So for location ... we would be looking at the particular location on someone’s property and coding that from zero to 100 percent, right?
A. No. I used 75 percent location for all of the trees. There was no variation like there was for condition.
Q. So even though some trees may have been in a great location and some trees may have been in a terrible location, everybody gets the same?
A. Well, A, we didn’t have a location, we didn’t have much information on location. And it wouldn’t be practical to do that for a quarter of a million trees.
Q. Now the first thing the guide tells us about the location factor is that you have to rate the overall quality of the general area, and of the buildings, landscape structures and plantings of the site. Right?
A. Yes, I said that before.
Q. That’s going to vary from neighborhood to neighborhood in Dade County, isn’t it?
A. Oh, yes. Absolutely.
Q. Number two, rate the contribution of the plant in providing each of the functional and aesthetic benefits identified.
A. Yes, I said that.
Q. So that is very specific to an individual property, isn’t it?
A. Yes.
Q. Number three, rate how effectively the placement of the plant provides its functional and aesthetic benefits. Again, it’s very specific to the property, isn’t it?
A. Yes, I mentioned site contribution and placement earlier.
Q. So of the three factors here, number one is specific to the neighborhood, and number two and three are specific to the particular lot?
A. Yes.
Q. And you’re just going to use one location factor exactly the same for every single lot in Miami-Dade County we’re dealing with?
A. Well, I had to make modifications, based on a quarter million trees. There has to be some practical way to do this on a class basis.

Mr. Hoyer also admitted that applying an across-the-board location discount would under-compensate some class members and over-compensate others. Nevertheless, Mr. Hoyer found solace in the fact that “it would probably not have an impact in the total amount of compensation” the class, as a whole, would receive, or the Department would have to pay, “because it would average out.”

LEGAL ANALYSIS

A trial court’s order certifying a class is reviewed for an abuse of discretion. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 102-03 (Fla.2011). However, in this case, the trial court premised its certification of the class on its acceptance of the plaintiffs’ damages methodology, the validity of which we review de novo. R & B Holding Co. v. Christopher Adver. Grp., Inc., 994 So.2d 329, 331 (Fla. 3d DCA 2008) (“Determining whether a particular methodology is a proper method for computing damages is a question of law.... The appropriate measure of damages, as compared with the amount of damages awarded, involves a legal question reviewable on appeal.”).

The takings provision of the Florida Constitution dictates that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.” Art. X, § 6(a), Fla. Const. “The constitutional requirement of full compensation means that the landowner must be completely paid for that which is taken, and compensated for the whole loss occasioned by the taking.” Polk, 568 So.2d at 41 (quoting Dep’t of Transp. v. Nalven, 455 So.2d 301, 307 (Fla.1984)). Accordingly, the damages methodology employed in any inverse condemnation suit should be consistent with the doctrine of compensatory damages, the purpose of which is “to restore the injured party to the position it would have been [in] had the wrong not been committed.” Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1279-80 (Fla.2006) (quoting Laney v. Am. Equity Inv. Life Ins. Co., 243 F.Supp.2d 1347, 1354 (M.D.Fla.2003)); see also R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 310 (Fla. 1st DCA 2012) (quoting Mercury Motors Exp., Inc. v. Smith, 393 So.2d 545, 547 (Fla.1981) (“The purpose of compensatory damages is ‘to make the injured party whole to the extent that it is possible to measure his injury in terms of money.’”)).

As the law has long recognized, “all land is considered unique,” both in terms of its physical characteristics and intended uses. Bermont Lakes, LLC v. Rooney, 980 So.2d 580, 586 (Fla. 2d DCA 2008). Thus, “[i]n takings cases, ‘the proper valuation method or methods for any given case are inextricably bound up with the particular circumstances of the case.’” Bogorff, 35 So.3d at 91 (quoting Department of Agriculture and Consumer Services v. Mid-Fla. Growers, Inc., 570 So.2d 892, 895 (Fla.1990)); City of Pompano Beach, 829 So.2d at 931; see also Dade Cnty. v. Gen. Waterworks Corp., 267 So.2d 633, 639 (Fla.1972). Florida appellate courts have approved of a variety of damages methodologies in cases where trees are removed from real property, including those quantifying compensatory damages based on: the diminution in the value of the real estate, Nat’l Rating Bureau, Inc. v. Fla. Power Corp., 94 So.2d 809, 811 (Fla.1956) (en banc); Watson v. Jones, 160 Fla. 819, 36 So.2d 788, 788-89 (1948); Elowsky v. Gulf Power Co., 172 So.2d 643 (Fla. 1st DCA 1965); Clark v. J.W. Conner & Sons, Inc., 441 So.2d 674, 676 (Fla. 2d DCA 1983); the cost of replacing the trees, Bogorff, 35 So.3d at 91; City of Pompano Beach, 829 So.2d at 931; the loss of “creature comforts” provided by the trees, including shade and fruit, Watson, 36 So.2d at 788-89, Elowsky, 172 So.2d at 645; Clark, 441 So.2d at 676-77; and even the loss of “prospective net revenues” the citrus trees would have produced if allowed to reach maturity, Polk, 568 So.2d at 43.

In rule 1.220(b)(3) class actions, the damages methodology advanced by the plaintiffs is relevant to a court’s analysis of “predominance.” Among other requirements, plaintiffs seeking certification under rule 1.220(b)(3) must demonstrate that “the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class.” Fla. R. Civ. P. 1.220(b)(3). “The predominance requirement is similar to commonality because ‘both require that common questions exist,’ but the ‘predominance requirement is more stringent since common questions must pervade,’ rather than merely exist.” Miami Auto. Retail, Inc. v. Baldwin, 97 So.3d 846, 855 (Fla. 3d DCA 2012) (quoting Wyeth, Inc. v. Gottlieb, 930 So.2d 635, 639 (Fla. 3d DCA 2006)). The law is clear that in cases where common issues “break down into individual factual and legal issues,” common issues do not predominate. Morgan v. Coats, 33 So.3d 59, 66 (Fla. 2d DCA 2010).

As the majority notes, individualized questions relating to damages, as opposed to liability, generally do not preclude a finding that common issues predominate. Ouellette v. Wal-Mart Stores, Inc., 888 So.2d 90, 91 (Fla. 1st DCA 2004). However, Florida courts have recognized two limiting principles in this context. First, plaintiffs bear the burden of proffering an accurate damages methodology that can be applied uniformly to each member of the class. See Castin, 901 So.2d at 1021 (holding that “the trial court did not abuse its discretion in denying class certification, because the evidence showed no reasonable methodology for generalized proof suitable for a class action”); Appleton Papers, 743 So.2d at 21-22 (affirming the trial court’s determination that the appellants failed to show predominance because “the issue of damages and impact in the case simply ‘does not lend itself to [a mechanical calculation] but requires separate mini-trials, of an overwhelming large number of individual claims’ and that ‘the staggering problems of logistics thus created make the damage aspect of the case thus predominate .... ’ ”); see also Klay, 382 F.3d at 1259 (quoting In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 698 (S.D.Fla.2004) (noting that plaintiffs must “come forward with plausible statistical or economic methodologies to demonstrate impact on a class-wide basis,” and that “[i]n assessing whether to certify a class,” the court must consider “whether or not the proposed methods [for computing damages] are so insubstantial as to amount to no method at all”)); see also Sosa, 73 So.3d at 113 (determining that predominance was strengthened because “any variance in damage recovery between the class members is calculable by using a systematic formula”). Second, Florida Courts have held that “[c]lass certification becomes inappropriate ... when the need to prove damages on an individualized basis will play such a predominant role in the litigation as to significantly outweigh any benefits to be gained by a class action lawsuit.” Equity Residential Props. Trust v. Yates, 910 So.2d 401, 403 (Fla. 4th DCA 2005) (emphasis added); see also Klay, 382 F.3d at 1260 (noting that there are “extreme cases in which computation of each individual’s damages will be so complex, fact-specific, and difficult that the burden on the court system would be simply intolerable”).

In this case, the trial court determined that predominance was satisfied based on its conclusion that the plaintiffs’ proposed damages methodology “represents a simple, straightforward and effective method” for calculating the replacement cost of “each” tree on a classwide basis. While the methodology may represent a simple and straightforward method, it certainly does not represent an “effective” method. The methodology’s across-the-board application of a location discount, by definition, ignores crucial individual characteristics— the site, contribution, and placement— bearing on the value of each tree, and thus does not provide an accurate assessment of the replacement value of each tree. Consequently, the plaintiffs have failed to proffer an accurate damages methodology that can be applied uniformly to each member of the class.

Without a methodology capable of accurately and uniformly calculating the replacement cost of each tree, the “need to prove damages on an individualized basis will play such a predominant role in the litigation as to significantly outweigh any benefits to be gained by a class action lawsuit.” Yates, 910 So.2d at 403. As Mr. Hoyer stated, obtaining information regarding the site, contribution, and placement of each tree, and correctly factoring these characteristics into each replacement cost assessment, would not be practical in this case.

I didn’t have the advantage of looking at each and every property and because of the number of properties involved, it wouldn’t be practical to go through that exercise.... [W]e didn’t have much information on location. And it wouldn’t be practical to do that for a quarter of a million trees.

Doing so would require a tree appraiser or appraisers to travel to at least 83,630 homes, which are spread across Miami-Dade County, and make individualized assessments regarding the location attributes of 247,927 trees that are no longer there, all while ensuring uniformity in such evaluations. The plaintiffs would then bear the burden of proving the accuracy of each of these assessments.

As Mr. Hoyer candidly admitted, the very reason he “came up with” the methodology was to manufacture predominance so as to avoid the burdensome, individualized assessments necessary to accurately calculate and prove the replacement cost of each tree.

Q. Instead of using a 75 percent code across the board for every single tree in Dade County, instead of doing that, if you were to really make an actual assessment of the percentage location discount for a specific particular tree, but do that for every tree, that would not be a practical thing you could do?
A. Not very practical. That’s correct. Which is one of the reasons we came up with a, I came up with a generic location factor in dealing with the class here.
Q. And you’re just going to use one location factor exactly the same for every single lot in Miami-Dade County we’re dealing with?
A. Well, I had to make modifications, based on a quarter million trees. There has to be some practical way to do this on a class basis.

Accuracy, however, cannot be so blatantly sacrificed in the name of judicial economy. The litigation process demands more precision than that offered by the plaintiffs in this case.

Finally, Mr. Hoyer acknowledged that his across-the-board treatment of trees in this case would under-compensate many of the class members. Nevertheless, he attempted to justify the methodology by opining that the overall compensation provided to the class as a whole would likely average out, and that, consequently, the Department would not be overcharged in damages. Mr. Hoyer’s justification is legally without merit. As stated by the Florida Supreme Court, in an action seeking damages for the wrongful cutting of trees, “the rule of damages adopted should be such as to more carefully guard against failure of compensation to the injured party than against possible overcharge upon the wrongdoer.” Watson, 36 So.2d at 789 (citing Gilman v. Brown, 115 Wis. 1, 91 N.W. 227, 229 (1902)).

In sum, the plaintiffs have failed to proffer a damages methodology capable of accurately and uniformly calculating the replacement cost of each of the 247,927 trees in this case. A careful review of the record demonstrates that “the proposed methods [for computing damages] are so insubstantial as to amount to no method at all.” Klay, 382 F.3d at 1259. Without a proper methodology, class treatment in this case is improper because the “need to prove damages on an individualized basis will play such a predominant role in the litigation as to significantly outweigh any benefits to be gained by a class action lawsuit.” Yates, 910 So.2d at 403.

Accordingly, I would reverse the trial court’s order certifying the class.

      . A trial court’s order certifying a class and determining the adequacy of the putative class representatives is reviewed for abuse of discretion. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 98 (Fla.2011); United Auto. Ins. Co. v. Diagnostics of S. Fla., Inc., 921 So.2d 23, 25 (Fla. 3d DCA 2006); Neighborhood Health P'ship, Inc. v. Fischer, 913 So.2d 703, 706 (Fla. 3d DCA 2005). Absent an abuse of that discretion, the trial court's order must be affirmed.

      . Section 581.1845, Florida Statutes (2006), was repealed in 2010. See Ch. 10-35, § 1, at 316, Laws of Fla.

      . The certified question that the Supreme Court in Patchen answered in the negative was the following:
      Does the Florida Supreme Court’s decision in Department of Agriculture & Consumer Services v. Polk, 568 So.2d 35 (Fla.1990), which held that the Department’s destruction of healthy commercial citrus nursery stock within 125 feet of trees infected with citrus canker did not compel state reimbursement, also apply to the Department’s destruction of uninfected, healthy noncommercial, residential citrus trees within 1900 feet of trees infected with citrus canker?

      . The ten year delay was the result of procedural issues that are not relevant to my analysis.

      . Contrary to the trial court's finding, the Department’s records do not contain information regarding the location of the trees.

      . Mr. Hoyer testified that he was forced to “extrapolate” an initial value for trees over eight feet tall because there were no citrus trees over eight feet tall available in the citrus market. In my view, this calls into question whether replacement value is the correct measure of compensatory damages for citrus trees above eight feet tall.
      In Polk, the Florida Supreme Court determined that "when there is no market [for a growing crop] at the time of the taking due to the crops’ partial state of development, it is necessary to consider other evidence bearing on value.” Dep’t of Agric. & Consumer Servs. v. Polk, 568 So.2d 35, 42 (Fla.1990). In that case, for instance, the Court concluded that because there was no market for immature citrus trees, it was proper for the jury to consider "the prospective net revenue which could have been derived from the crop at maturity [a]s a proper measure of valuation.” Id.

      The principles set forth in Polk are applicable here. Because there is no market for citrus trees over eight feet tall, such trees cannot be replaced. It follows that the damages incurred by homeowners who lost trees over eight feet tall should not be measured by replacement cost. As in Polk, "it is necessary to consider other evidence bearing on value.” Id.

      . I have serious reservations about factoring a tree’s location into a replacement cost analysis. The goal of the replacement cost methodology is to provide the landowners sufficient compensation to replace their trees with similar ones. It follows that the focus should be on each tree’s physical characteristics, which can be compared to those of trees available in the marketplace and priced accordingly. There is no association between a tree's location and the amount of money it would cost to replace it. The record reflects that the trial court initially shared my reservations, as evidenced by the following exchange:
      THE COURT: But replacing a ten-foot average tree is going to cost you X whether it’s in the side yard, front yard or backyard. If it’s the replacement cost, it doesn’t appear to me that location would be an appropriate consideration.
      THE WITNESS: I understand. And again, I debated that question going through this process, and because the Guide for Plant Appraisal considers ... the size, the species, the condition and location of the tree, I wanted to use a defensible methodology and follow the appraisal methodology through as outlined in the Guide, so I went ahead and used the location value.

      THE COURT: Before we go there, if we’re talking about diminution to the real estate, I can understand location being a significant factor. If we’re talking about replacement cost, you explain to me why I would consider that at all.... It just doesn't appear to the Court that it’s an appropriate consideration.... It seems to me, replacement value is X. It’s going to cost me X to replace this 10-foot tree.... How can you replace it for less ... ?

      . Mr. Hoyer illustrated the importance of a tree’s individual location attributes with the following example:
      [Ljet’s say you have this beautiful large Poinciana tree in the front of your house and it’s the focal point of your house, it blooms every summer, and everybody oohs and aahs as they drive by, it's the central point of your landscaping. If I were to appraise that tree, I would give it a much higher location value than if that tree were stuck in the corner of your yard and didn't ... have the aesthetic ... [or] visual appeal, and didn't contribute as much to the overall landscaping of your property.
      So if that tree were stuck in the side yard, ... [or] if you had a hundred trees in your yard and you lost that one tree, I wouldn't give it the location value that I would give it if that was the only tree in your yard, it was the focal point of your landscaping and you lost it. It would have ... more of a significant impact.

      . In reality, every class member would be undercompensated by the application of the location discount because, as I explained above, a tree’s location has no bearing on the amount of money it would cost to replace it.

      . As I explained above, the methodology would actually under-compensate every class member.


source: Caselaw Access Project

license: Public Domain

text:
    In re Charles G. BLAIZE.
    No. 2013-OB-0745.
    Supreme Court of Louisiana.
    April 17, 2013.
   ORDER

11 Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Charles G. Blaize, Louisiana Bar Roll number 3140, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Greg G. Guidry

Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Christopher D. MATCHETT.
    No. 2013-OB-0638.
    Supreme Court of Louisiana.
    April 19, 2013.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

| ]This proceeding arises out of an application for reinstatement filed by petitioner, Christopher D. Matchett, an attorney currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Matchett, 09-0274 (La.3/13/09), 4 So.3d 798, we accepted a joint petitioner for consent discipline filed by petitioner and the Office of Disciplinary Counsel (“ODC”) and imposed a two-year suspension upon petitioner, retroactive to the date of his interim suspension in In re: Matchett, 07-2115 (La.10/31/07), 967 So.2d 487, for operating a vehicle while under the influence of alcohol and possessing and using illegal drugs. Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended that petitioner be reinstated to the practice of law, subject to conditions. Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

After considering the record in its entirety, we will adopt the committee’s recommendation and reinstate petitioner to the practice of law. As found by the | ^committee, the record provides clear and convincing evidence of petitioner’s compli-anee with the reinstatement criteria. In particular, the record supports the finding that petitioner has pursued appropriate treatment, he has abstained from the use of alcohol and drugs for at least one year, and he is likely to continue to abstain from the use of alcohol and drugs. Under these circumstances, petitioner has shown that he possesses the requisite competence, honesty, and integrity to be reinstated to the practice of law. Nevertheless, we find further precautions are warranted to insure that the public will be protected upon petitioner’s return to practice. See Supreme Court Rule XIX, § 24(J).

Accordingly, we will grant the petition for reinstatement and reinstate petitioner to the practice of law, subject to the following conditions:

1. Petitioner shall be associated with an experienced supervising lawyer as opposed to practicing as a solo practitioner;
2. Petitioner shall extend his current contract with the Lawyers Assistance Program (“LAP”) for a period of five years and fully comply with the terms and conditions thereof;
3. Petitioner shall be responsible for ensuring that monthly reports of his progress and participation in LAP are forwarded to the ODC;
4. Upon the expiration of the term of petitioner’s LAP agreement, the Executive Director of LAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP; and
5.Petitioner shall cooperate with LAP and the ODC, and shall comply with any and all requirements imposed upon him by LAP and the ODC.

| sAny failure of petitioner to comply with these conditions, or any violation of the terms and conditions of petitioner’s recovery agreement, may be grounds for immediately transferring him to disability inactive status, or placing him on interim suspension, as appropriate.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Christopher D. Matchett, Louisiana Bar Roll number 8444, be immediately reinstated to the practice of law in Louisiana, subject to the conditions set forth herein. All costs of these proceedings are assessed against petitioner.

      . Petitioner’s current LAP contract expires on January 20, 2015. The five-year extension that is a condition of petitioner’s reinstatement will subject him to monitoring by LAP until at least 2018.

      . The hearing committee recommended that we waive or defer costs for one year in light of petitioner’s financial status. While we decline to adopt this recommendation, we note petitioner has the option of negotiating a periodic payment plan with the disciplinary board pursuant to Supreme Court Rule XIX, § 10.1(D). The ODC has indicated it is amenable to execution of a payment plan "setting forth a schedule of payments to commence one year from the date [petitioner] is reinstated to the practice of law if approved by the Louisiana Supreme Court.”


author: HUGHES, J.,

text:
    STATE ex rel. Troy BATISTE v. STATE of Louisiana.
    No. 2012-KH-2525.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Batiste, Troy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 2nd Judicial District Court Div. H, No. 338584; to the Court of Appeal, First Circuit, Nos. 2012 KW 0906, 2012 KW 1512.

h Denied.

HUGHES, J., dissents and assigns reasons.

HUGHES, J.,

dissenting.

hi respectfully dissent and would grant the writ. The trial court incorrectly determined that relator’s habitual offender claims were fully litigated on appeal and that the district court was without authority to issue a subpoena for an out of state resident or a federal inmate. I would grant the writ in order to remand for an evidentiary hearing.


author: STEPHEN J. WINDHORST, Judge.

text:
    Michael G. LEWIS v. Jerald L. ALBUM and CNA Insurance.
    No. 12-CA-854.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Michael G. Lewis, New Orleans, LA, for Plaintiff/Appellant, In Proper Person.
    Gus A. Fritchie, III, McDonald G. Pro-vosty, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

12This is a legal malpractice action instituted by plaintiff, Michael G. Lewis, against attorney Jerald L. Album and his liability insurer CNA Insurance (“Album”). In response, Album filed a motion for summary judgment and alternative exception of prescription, which was granted by the trial court. After the denial of his motion for new trial, Mr. Lewis appealed. We affirm the decision of the trial court.

In December of 2006, Album was retained by Lewis to assume prosecution of his pending claim against the Commissioner of Insurance. According to Album, Lewis terminated the attorney-client relationship on July 18, 2007, at which time Album requested and received his entire file.

On May 17, 2010, Album was served with an Ex Parte Motion to Dismiss on Grounds of Abandonment in Lewis’ case, including an order dismissing the matter signed by the trial court on May 3, 2010. At that time, Album filed his Motion to Withdraw as Counsel of Record. Album also forwarded a copy of the Motion to Dismiss to Lewis.

_JjOn June 1, 2010, Lewis filed a Motion to Set Aside the Order of Abandonment. A second judgment dismissing Lewis’ case was rendered after a hearing on July 30, 2010. The judgment is silent on the issue of the motion; however it is apparent that the trial court denied the motion since the matter had been dismissed as abandoned on May 3, 2010.

Lewis filed this malpractice claim on August 1, 2011. After filing an answer on October 11, 2011, Album filed a Motion for Summary Judgment/Alternative Exception of Prescription. The trial court granted judgment in favor of Album on December 13, 2011 and again (pursuant to a motion for new trial) on June 4, 2012.

In this appeal, Lewis alleges that the trial court erred in granting Album’s motion and in dismissing his suit for malpractice. Lewis argues that he did not terminate his attorney-client relationship with Album, and that Album was his attorney of record, and therefore his attorney-in-fact, until the filing of the motion to withdraw in 2010. Thus, Album committed malpractice by allowing his suit to be dismissed on the grounds of abandonment. Lewis further contends that this malpractice suit is not prescribed, as it was filed within the one-year period following the second “dismissal” of his suit on July 30, 2010. Finally, Lewis argues in brief that Album committed legal malpractice by his failure to follow the Rules of Professional Conduct.

Pursuant to the provisions of La. R.S. 9:5605, an action for legal malpractice must be brought “within one year from the date that the alleged act, |4omission, or neglect is discovered or should have been discovered” and “at the latest within three years from the date of the alleged act, omission, or neglect.”

The prescriptive periods set forth in La. R.S. 9:5605 are peremptory. Thus, both the underlying cause of action and the legal right to bring that cause of action dissolve at the end of the specified periods of limitation. Schonekas, Winsberg, Evans & McGoey, L.L.C. v. Cashman, 11-449 (La.App. 5 Cir. 12/28/11), 83 So.3d 154, 158. The peremption period for a legal malpractice action begins to run when a client knew or should have known that a lawyer’s actions or inaction may cause the client to incur damages, thereby creating a cause of action for legal malpractice. Id.; Teague v. St. Paul Fire and Marine Insurance Co., et al., 07-1384, p. 13 (La.2/1/08), 974 So.2d 1266, 1275.

The peremption period for Lewis’ cause of action began to run in May of 2010, when he was informed by Album that his cause of action had been dismissed as abandoned, and certainly no later than June 1, 2010 when Lewis filed his Motion to Set Aside the Judgment of Abandonment. This suit was filed on August 1, 2011, which was more than one year after Lewis knew or should have known that there had been no further action by Album, or anyone else, in his suit, and that his suit had been dismissed as a result. Therefore this action is perempted. We Isfind no error in the ruling of the trial court granting Album’s Motion for Summary Judgmenl/Exception of Prescription.

Because we find that plaintiffs cause of action is perempted, we need not address the remaining issues raised in plaintiffs appeal.

For the above discussed reasons, the decision of the trial court dismissing plaintiffs suit is affirmed. All costs are assessed against plaintiff/appellant.

AFFIRMED

      . La. R.S. 9:5605 provides that:
      A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
      B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
      C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and peremptive period shall be governed exclusively by this Section.
      D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
      E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.


text:
    Randy ST. BLANC and Amy Harrison St. Blanc v. Sidney A. STABILE, John H. Burelle, and BBI, L.L.C.
    No. 12-CA-677.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2013.

      John C. Henry, Attorney at Law, Cov-ington, LA, for Plaintiffs/Appellants.
    Thomas J. Cortazzo, Brodie G. Glenn, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

12Plaintiffs, Randy St. Blanc and Amy Harrison St. Blanc (“St. Blanc”) appeal from the trial court’s judgment awarding $10,525.96 in attorneys’ fees and costs. For the reasons that follow, we affirm the decision of the trial court.

This proceeding was instituted when St. Blanc filed a petition alleging that the defendants, Sidney A. Stabile, John N. Bu-relle and BBI, L.L.C. (“BBI”), had defaulted on a promissory note. St. Blanc sought the balance due on the note, plus interest and attorney fees. The petition alleged that Stabile and Burelle were also liable individually as a result of having executed a guaranty on the promissory note. BBI filed a reconventional demand alleging that the promissory note and guaranty were given in connection with a credit sale of certain assets and that St. Blanc breached their warranties and committed fraud in the confection of the sale; therefore, their consent to the sale, the promissory note and guaranty was vitiated by error and fraud. BBI sought nullification and/or rescission of the sale, as well as damages, return of the purchase price and attorneys’ fees. In the reconventional demand, BBI also asserted a third-party demand against St. Blanc Enterprises, Inc., |sa corporation which had been dissolved and then reinstated during the course of these proceedings. Thereafter, BBI filed a supplemental and amending petition asserting claims of unjust enrichment and or detrimental reliance.

Both St. Blanc and BBI filed several motions for summary judgment and all but one was denied. On June 10, 2011, the trial court granted St. Blancs’ motion for partial summary judgment, and dismissed BBI’s claim of breach of warranty of trade name.

Trial was held on February 6 and 7, 2012. On March 8, 2012, the trial court rendered judgment in favor of St. Blanc for $42,103.84. The trial court further dismissed BBI’s reconventional demand, finding them to be without merit.

On May 3, 2012, the trial court heard St. Blanc’s Motion to Fix Attorney’s Fees and Costs. The trial court rendered judgment on May 25, 2012, awarding attorneys’ fees and costs of $10,525.96.

St. Blanc now appeals, alleging that the trial court abused its discretion in setting attorneys’ fees.

In Louisiana, the prevailing party may not recover attorneys’ fees except where authorized by contract or statute. Brandner v. Staf-Rath, L.L.C., 12-62 (La.App. 5 Cir. 5/31/12), 102 So.3d 186, 189 writ denied, 12-2196, 12-2210 (La.11/21/12), 102 So.3d 62. In this case, the promissory note between the parties provided that in the event that the note should be placed in the hands of an attorney for collection, “the makers bind themselves to pay the reasonable fees of the attorney who may be employed for that purpose.” In addition, the personal guaranty of the individual plaintiffs also provided a guaranty for the payment of attorneys’ fees.

|4A reasonable attorneys’ fee is determined by the facts of an individual case. Gottsegen v. Diagnostic Imaging Services, 95-977 (La.App. 5 Cir. 3/13/96), 672 So.2d 940, 943 writ denied, 96-6707 (La.4/26/96), 672 So.2d 909. Factors to be taken into consideration in determining the reasonableness of attorneys’ fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. Rivet v. State, Dept. of Transp. & Dev., 96-0145 (La.9/5/96), 680 So.2d 1154, 1161.

Courts consider the above factors in all cases to determine reasonable attorneys’ fees to be awarded regardless of whether the right to attorneys’ fees arises by statute or contractual provision. Brandner, supra at 189. The court is not bound by a contingency fee contract or the amount actually charged by the attorney. Jackson Square Towne House Home Ass’n, Inc. v. Hannigan, 38,239 (La.App. 2 Cir. 3/3/04), 867 So.2d 960, 965-66. The trial court has much discretion in fixing the award of attorneys’ fees and this award will not be modified on appeal absent an abuse of discretion. Doucet v. First Fed. Guar., 11-9 (La.App. 5 Cir. 8/30/11), 72 So.3d 478, 485, writ denied, 11-2384 (La.12/16/11), 76 So.3d 1207.

In this case, St. Blanc seeks $120,198.57 in attorneys’ fees and costs, broken down as follows: attorneys’ fees of $7,398.48 for attorney Timothy Marcel who represented St. Blanc from the institution of suit in July of 2008 until September of 2009; attorneys’ fees of $98,652.00 for the firm of Blue, Williams, L.L.P., who | ^currently represents St. Blanc; court costs of $2,711.60; and other costs of $11,436.49.

The lawsuit was for collection on a promissory note, resulting in a judgment in favor of St. Blanc of $42,103.84. Defendants filed affirmative defenses and reeon-ventional demands asserting claims of fraud, unjust enrichment, and detrimental reliance, which were unsuccessful. Defendants also filed a third party demand which resulted in plaintiffs’ motion to reinstate corporation. St. Blanc filed five motions for summary judgment (with partial success), one exception of no cause of action and one exception of prescription (which was granted). St. Blanc filed for discovery, and also defended against BBI’s discovery pleadings. Trial was held on February 6 and 7, 2012, after which both parties filed post-trial memorandum. In addition, attorneys for St. Blanc filed the motion to set attorneys’ fees and appeared at the hearing on the motion.

Attorneys for St. Blanc also filed statements in which they asserted that they spent 559.1 attorney hours and 41.8 paralegal hours on this matter.

After the hearing on the motion to set attorney fees, the trial court awarded attorneys’ fees and costs of $10,525.96 significantly less than the $120,000 that St. Blanc alleged they were owed. In ruling, the court said, “The court further finds that an attorney has a duty to mitigate client damages. If the total amount of relief sought is one-third of the total attorneys’ fees and costs, the attorneys have done a disservice to their clients.” (Emphasis in original). The court also noted that in cases such as this, the standard terms in contracts set attorneys’ fees at 25% or a sum not less than a specific amount, subject to a determination of reasonableness by the courts.

In this appeal, St. Blanc alleges that it was error for the court to grant a standard 25% recovery, rather than consider the factors as set forth in Rivet, supra. Blanc further contends that courts have, in the past, affirmed awards of attorneys’ fees in excess of the amount recovered, (citing Brandner, supra) and that this case warrants such a result.

A review of the record shows that both parties presented evidence and argued the Rivet factors in the hearing before the court, and therefore the court was well aware of those factors in rendering its decision. The trial court is not required to give reasons for judgment unless requested to do so by a party, provided the request is made not later than ten days after the mailing of the notice of the signing of the judgment. La.C.C.P. art. 1917; In re Succession of Minor, 07-913 (La.App. 5 Cir. 3/11/08), 982 So.2d 134, 135-36; City of Eunice v. Carrier, 01-1184 (La.App. 3 Cir. 2/20/02), 821 So.2d 3, 6.

As we have stated previously, a trial court’s determination of attorneys’ fees will not be disturbed unless it is manifestly erroneous. Taking into consideration the Rivet factors including but not limited to the nature of the litigation involved, the result achieved, and the performance of counsel, we cannot say that the trial court erred in its award of attorneys’ fees.

For the above discussed reasons, the decision of the trial court awarding attorney fees and costs of $10,525.96 is affirmed. Costs of this appeal are assessed against appellants. ■

AFFIRMED

      . St. Blanc’s Motion to Reinstate Corporation was granted by the trial court on January 3, 2011.

      . St. Blanc’s exception of prescription to the claims raised in the amended petition was granted on May 13, 2010. This court denied writs on July 27, 2010. St. Blanc v. Stabile, 10-542 (La.App. 5 Cir. 7/26/10)(unpublished).


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES in the Interest of P.B.
    No. 12-CA-838.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2013.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Amanda L. Calogero, John D. Fitzmorris, Jr., Assistant District Attorneys, Harvey, LA, for Appellee, the State of Louisiana.
    Lila M. Samuel, George Read Coleman, Attorneys at Law, Gretna, LA, for Appellant, M.R.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

|2In this case, the State of Louisiana, Department of Social Services, through the Jefferson Parish District Attorney appeals a child support award. For the following reasons, we amend and affirm, as amended.

Facts and Procedural History

This is the third time these parties have sought review in this Court. The facts are not in dispute. A boy, P.B., was born on January 22, 2001. When he was conceived in May of 2000, his mother, B.B., was involved in an extramarital relationship with her husband’s brother-in-law, M.R. Because B.B.’s husband had undergone a vasectomy, B.B. accurately believed that M.R. was the child’s biological father. Shortly thereafter, B.B. and M.R.’s relationship ended.

On September 10, 2007, the State of Louisiana, Department of Social Services, through the Jefferson Parish District Attorney’s Office (hereinafter “the |sState”) filed a Petition to Prove Paternity and Obtain Child Support in the Juvenile Court for Jefferson Parish, pursuant to La. R.S. 46:236.1.2. In this action, the State asserted that genetic test results, which were attached, reflected that M.R. was P.B.’s biological father. Further, the petitioners alleged that the child’s mother was entitled to child support based upon La. R.S. 46:236.1.1 et seq. and La. C.C. art. 241.

On November 10, 2008, the juvenile court judge heard testimony from the child’s mother, legal father, biological father, and aunt on whether establishing the child’s paternity was in the best interest of the child. At the conclusion of the hearing, the judge determined that it was in the child’s best interest for M.R. to be established as P.B.’s biological father.

M.R. appealed that judgment. The State moved to dismiss that appeal on the grounds that the judgment at issue was a partial, non-appealable judgment, citing La. C.C.P. art. 1915(B)(2) and La. C.C.P. art.2083. We agreed and dismissed the appeal. State, D.S.S. ex rel. P.B. v. Reed, 08-1309 (La.App. 5 Cir. 5/12/09), 15 So.3d 205, 207.

On February 19, 2009, the hearing officer set a temporary order of support. Thereafter, on January 11, 2010, the trial court held a hearing to review the temporary support order and set child support. After hearing argument, the judge ordered M.R. to pay B.B. $365.00 per month for P.B.’s support.

The State appealed that award and challenged the trial court’s methodology in calculating the child support obligation of a biological father in a “dual paternity” situation. Rather than address the calculation, we found that the juvenile court judge abused her limited discretion in calculating an award in this case because the record was devoid of support for the calculation. Ultimately, we vacated that award, reinstated the temporary support award, and remanded to the | Juvenile court for a hearing to set child support in compliance with the guidelines, including, but not limited to, La. R.S. 9:315.2(A). State, D.S.S. ex rel. P.B. v. Reed, 10-410 (La.App. 5 Cir. 10/26/10), 52 So.3d 145, 147-49, writ denied, 10-2611 (La.2/18/11), 57 So.3d 333.

In response, the juvenile court judge, on February 23, 2011, ordered the parties to provide proper documentation of their income to support the previous calculation. On June 25, 2012, the trial court ruled, however, that the parties had stipulated to their incomes at the January 2010 hearing, which was sufficient to bind each party and support the calculation. The trial court, upon noting that our prior decision was “silent as to the stipulation,” found that this Court “inadvertently overlooked” the stipulation and instructed the State to calculate the obligation based on the stipulation entered in January 2010.

At the June 2012 hearing, the State then introduced an obligation worksheet, which was based on methodology discussed in State ex rel. C.W. v. Wilson, 37,674 (La.App. 2 Cir. 9/24/03), 855 So.2d 913, writ denied, 03-2970 (La.1/16/04), 864 So.2d 633, that calculated the non-custodial parent’s child support obligation as $991.00. The judge did not, however, enter an Order awarding that amount to the custodial parent. Instead, the judge ordered the parties to appear for further proceedings to proffer evidence to verify the income used to calculate the award and address the retroactivity of the award.

On July 19, 2012, the trial court, after receiving proffers from the State and M.R., relied upon the prior stipulation and set the permanent monthly support | r,award owed by M.R. at $991.00, retroactive to the date that the temporary order of support was set, which was February 19, 2009. The State objected to the calculation on the basis that this Court rejected the stipulation in its previous opinion and objected to the trial court’s failure to order the award retroactive to the date of judicial demand.

In its Reasons for Judgment, the juvenile court judge acknowledged that the documentation required by La. R.S. 9:315.2 was not submitted to the court nor considered in calculating the support obligation because the parties had stipulated to the income amounts at the January 2010 hearing. Further, the judge stated that, although La. R.S. 9:315.21 generally requires that a support award be made retroactive to the date of judicial demand, in her opinion, the complexity and tortured history of this case was good cause to deviate and allow retroactivity only to February 19, 2009.

On appeal, the State challenges the calculation of the support award because the award is based on a stipulation that was rejected by this Court and is unsupported by the record. The State also challenges the ruling that the award was not retroactive to the date of judicial demand. M.R. argues that the juvenile court judge did not err in relying on the stipulation under La. R.S. 9:315.1(D) or in awarding the final child support retroactive to the date of the temporary child support order, pursuant to La. R.S. 9:315.21.

Law and Argument

An award of child support is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Duffel v. Duffel, 10-274 (La.App. 5 Cir. 11/9/10), 54 So.3d 675, 676, citing Lambert v. Lambert, 06-2399 (La.App. 1 Cir. 3/23/07), 960 So.2d 921, 924. The overriding factor in determining the amount of support is the best interest of the children. Id., citing Sampognaro v. Sampognaro, 41,664 (La.App. 2 Cir. 2/14/07), 952 So.2d 775, 778. Whenever financially possible, the children who reside with their mother are entitled to the same standard of living as if they reside with their father. Langley v. Langley, 07-754 (La.App. 4 Cir. 3/26/08), 982 So.2d 881, 885, writ denied, 08-873 (La.6/20/08), 983 So.2d 1274; Duffel, 54 So.3d at 677. The trial court is required to consider the “totality of the circumstances” when determining the amount of child support. Duffel, 54 So.3d at 678 (citations omitted).

With respect to stipulations in child support calculations, La. R.S. 9:315.1(D) provides:

The court may review and approve a stipulation between the parties entered into after the effective date of this Part as to the amount of child support to be paid. If the court does review the stipulation, the court shall consider the guidelines set forth in this Part to review the adequacy of the stipulated amount and may require the parties to provide the court -with the income statements and documentation required by R.S. 9:315.2.

In Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762, the Louisiana Supreme Court examined the trial court’s role in reviewing consent judgments and the effect of such judgments thereafter. In Stogner, the trial judge approved a prior consent judgment and child support award without referring to the child support guidelines. After reviewing the language of La. R.S. 9:315.1 et seq., the supreme court found that the trial court must review the agreement proposed by the parents and “shall consider the guidelines to review the adequacy of the stipulated [child support] amount.” Id. at 768.

|7The Stogner court found the lower court’s flawed reading of La. R.S. 9:315.1(D) “in isolation” defeated “the purpose of the legislature’s intent to ensure adequate and consistent child support awards.” The Stogner court held:

In this context, we find that the opening phrase of the second sentence of Paragraph (D), ‘If the court does review the stipulation,’ simply means that if the trial court does not categorically reject the proposed stipulation, i.e., it chooses to entertain the stipulation, the trial court ‘shall consider the guidelines ... to review the adequacy of the stipulated amount.’ To assume, as the lower courts did herein, that the reviewing role of the trial court was discretionary creates an anomaly that cannot be reconciled with the mandated application of the guidelines to the establishment or modification of child support provided in Paragraph (A) of La. R.S. 9:315.1.

Id. at 767. (Emphasis added).

In essence, the guidelines established in La. R.S. 9:315.1(A) must be used “in any proceeding to establish or modify child support.” Id. (Emphasis in original, citations omitted). The supreme court also held that “the language of [La. R.S. 9:315.1](D) must yield to the mandated review requirements established in [La. R.S. 9:315.1](A).” Id.

The Stogner court further noted that, “the trial court, after reviewing the proposed stipulation in light of the considerations enunciated in La. R.S. 9:315.1(C), may nevertheless approve a deviation from the guidelines provided it specifies for the record, either orally or in writing, the reasons for the deviation.” Id. When the trial court reviews the parties’ stipulation in accordance with the guidelines, it assures “the adequacy and consistency of child support awards, foster[s] evenhanded settlements, and preserved] a record for the evaluation of later proceedings to modify initially stipulated child support awards.” Id. The Stogner court further noted that, while parties are still free to stipulate, they “must remember that their agreements may not ‘derogate from laws enacted for the protection of the public interest.’ La. C.C. art. 7.” Id.

| ¡¿Likewise, our brethren on the First, Second, and Third Circuits have applied the supreme court’s reasoning on child support consent judgments to income stipulations in child support calculations. See, Richardson v. Richardson, 02-2415 (La.App. 1 Cir. 7/9/03), 859 So.2d 81, 859 (if the trial court does not reject the stipulation in favor of the child support guidelines, the trial court must “ ‘consider the guidelines ... to review the adequacy of the stipulated amount.’”); Sharp v. Moore, 47,888, p. 6 (La.App. 2 Cir. 2/27/13), 110 So.3d 1232 (when the trial court reviews the agreement proposed by the parents, it shall consider the guidelines to review the adequacy of the stipulated amount); Thevenot v. Thevenot, 03-684 (La.App. 3 Cir. 12/23/03), 864 So.2d 229, 233 (when parties stipulate in open court regarding their child support obligation, the adequacy of the amount of child support established by the stipulation must be reviewed and approved by the trial court in light of the child support guidelines).

In the present case, the record reflects that the trial court did not review the adequacy of the amount established in the stipulation in light of the child support guidelines, as required by Stogner, supra. Because the trial judge failed to assure that the child support award followed the guidelines set forth in La. R.S. 9:315.1 and also failed to follow the mandatory procedure for deviation set forth in La. R.S. 9:315.1(B), the judgment at issue is legally erroneous.

In the interest of justice, while we could remand this matter for a second time, we find that the record contains adequate information for this Court to apply the child support guidelines to the facts of the case. State v. Flintroy, 599 So.2d 331 (La.App. 2d Cir.1992). Even if some of the required documentation is lacking, remand is unnecessary if there is sufficient evidence in the record to render a decision. Aydelott v. Aydelott, 42,161 (La.App. 2 Cir. 5/09/07), 957 So.2d 350; State, D.S.S. ex rel. Clark v. Ruiz, 04-1064 (La.App. 5 Cir. 2/15/05), 898 So.2d 514.

To calculate the non-custodial parent’s child support obligation, we will use the worksheet presented in La. R.S. 9:315.20. Here, the legal father’s W2 for 2009 revealed wages of $24,858.00, which is a monthly income of $2,072.00. The mother’s W2 for 2009 revealed wages of $36,680.00, which is a monthly income of $3,057.00. The biological father, M.R., did not submit income documentation, i.e., W2, 1099, etc. for 2009. His joint income tax return, however, revealed an adjusted gross income for 2009 of $149,761, which amounts to a monthly income of $12,480.00. Accordingly, the parties’ combined monthly adjusted gross income is $17,609.00.

Based on the child support schedule listed in La. R.S. 9:315.19, the child support obligation for one child is $1,708.00. The record did not include documentation of net child care costs, health insurance premiums for the child, or other extraordinary expenses; those expenses, therefore, are not considered in our calculation.

Next, applying the methodology set forth in State ex rel. C.W. v. Wilson, 37,674 (La.App. 2 Cir. 9/24/03), 855 So.2d 913, writ denied, 03-2970 (La.1/16/04), 864 So.2d 633, we create a “fictional father,” who is responsible for 82.63% of the child’s support or $1,411.00. Here, the biological father, M.R., is responsible for 86% of that amount, which is $1,213.00. Therefore, based upon the record before us, we amend the trial court judgment and render judgment 110granting the custodial parent, B.B., child support in the amount of $1,213.00 with 5% court costs per month.

Next, we address the date that this award is effective. An award of child support shall be retroactive to the date of judicial demand, except for good cause shown. La. R.S. 9:315.21. “[RJetroactivity is intrinsic to the concept of child support under Louisiana’s civilian tradition[.] Louisiana law ‘abhors a gap in the support of one in need.’” Fink v. Bryant, 01-0987 (La.11/28/01), 801 So.2d 346, 350. Retro-activity in this context “is not in the nature of a penalty, but merely a judicial recognition of a pre-existing entitlement. Only practicality postpones the effective date of the obligation to pay child support to the date a court orders that payment.” Vaccari v. Vaccari, 10-2016 (La.12/10/10), 50 So.3d 139, 142, quoting Fink, supra, at 350.

Furthermore, upon a showing of good cause, the court may order a final child support award retroactive to the date of judicial demand, even though there has been an interim award in effect. Vaccari, supra. The burden is on the obligor parent to prove that good cause exists for not making the award retroactive to the date of judicial demand. Rutledge v. Rutledge, 41,792 (La.App. 2 Cir. 12/13/06), 945 So.2d 307; Welborne v. Welborne, 29,479 (La.App. 2 Cir. 5/7/97), 694 So.2d 578, writs denied, 97-1800 (La.10/13/97), 703 So.2d 621 and 97-1850 (La.10/13/97), 703 So.2d 623.

Here, the State filed a petition to establish paternity and child support on behalf of the minor child on September 10, 2007. We find that the trial judge erred in finding that good cause exists for not making the award retroactive to September 10, 2007, which is the date of judicial demand. Accordingly, the permanent award |nof $1,213.00 with 5% court costs per month is retroactive to September 10, 2007. Finally, all costs of this appeal are assessed against M.R.

AMENDED AND AFFIRMED AS AMENDED

      . On January 4, 2013, M.R. filed a motion to supplement the appellate record with the exhibits that he proffered in the district court. Our review of the record filed with this Court reveals that the exhibits proffered by both parties were, in fact, included as exhibits in the appellate record. By this opinion, defendant’s motion to supplement is denied as moot.

      . To protect the minor child’s privacy, we will use initials to refer to the minor child as well as the related adults. See, U.R.C.A. 5-2.

      . This number was derived by considering the biological mother's monthly income of $3,049.00 and the monthly income of a "fictional father,” i.e., a combination of the presumptive and biological fathers’ incomes. Here, the "fictional father's” monthly income was stated to be $11,576.00. Using the combined monthly adjusted gross income of all of the parents, which was $14,625.00, and considering the guidelines, the State determined that the basic monthly child support obligation for P.B. was $1,594.00. After adding in child care costs and health insurance premiums, the combined child support obligation came to $1,815.00, of which the "fictional father” was responsible for 79.15% or $1,436.57. The State then determined that the biological father, M.R., was responsible for 69% of that amount, which is $991.00.

      . Of course, reasons for judgment by a trial judge are not controlling and do not constitute the judgment of the court. A judgment and reasons for judgment are two separate and distinct documents. La. C.C.P. art.1918. Appeals are taken from the judgment, not the written reasons for judgment. See: La. C.C.P. arts.2082, 2083; G.N.O.E.C. v. Olivier, 02-2795 (La.11/18/03), 860 So.2d 22, 24. Reasons for judgment set forth the basis for the court’s holding and are not binding. Smith v. Smith, 08-575 (La.App. 5 Cir. 1/12/10), 31 So.3d 453, 462.

      . Their joint income tax return revealed an adjusted gross income for 2009 of $62,637.00.

      . We note that M.R. included an unverified, self-serving document that states his income was $89,400 for 2009. Further, the State submitted documents obtained under subpoena from Entergy Louisiana that are invoices to Entergy from a closely-held company controlled by the Reed family for consulting work by M.R. billed by contract at $l,200.00/day. In 2009, Entergy was billed $289,200 for M.R.'s “consulting.”

      . The State presented documentation that reflects that M.R. has sporadically fulfilled his obligation to support his child. According to an audit of the child support and enforcement records, M.R. did not pay any support in 2007, 2008, or 2010. Further, although M.R. made substantial payments in 2009 and 2011, he maintained an arrearage of $27,585.86 on July 19, 2012, which was the date of the audit.