author: MAKAR, J. MAKAR, J.

text:
    Russell C. POWELL, Appellant, v. STATE of Florida, Appellee. Benjamin P. Wilbourn, Appellant, v. State of Florida, Appellee.
    Nos. 1D12-244, 1D12-1036.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Opinion on Rehearing Aug. 1, 2013.

      Nancy A. Daniels, Public Defender, Glenna Joyce Reeves and Steven L. Seli-ger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee.
   MAKAR, J.

Our state and federal constitutions declare that homes — whether castles or cabins, mansions or mobile homes — are protected spaces that require a warrant or other lawful basis to justify a governmental intrusion. At issue in this case is whether police officers entering the property of Russell Powell and Benjamin Wilb-ourn and peering into a window of their mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment. Because the officers intruded into a constitutionally protected area without a warrant and peered into a window from a part of the property where they had no lawful right to be, an unconstitutional search occurred.

I.

Lafayette County is best described as sparsely inhabited with the second smallest population of Florida’s 67 counties. It is adjacent to the Big Bend coastal region of the state and comprises about 550 square miles of agrarian lands, primarily pastures and woodlands. Its entire eastern border is the celebrated Suwannee River and its western border originally was the Gulf of Mexico. The county was split in two in 1921, rendering it landlocked; Dixie County, created from its southern part, now claims the Gulf coast.

At approximately 8:57 p.m. on Wednesday, December 29, 2010, the Lafayette County Sheriffs Department, which has a total of about eight or nine officers, received an anonymous call, which it redirected to Deputy Phil Shea’s cell phone. The caller said he had been at a party and saw marijuana plants, describing their location as “directly to the right when you enter through the front door of the mobile home.” He recently left the home and said that its residents were still there.

Deputy Shea immediately called Deputy Jaqueline Tysall, a school resource officer working back-up during the Christmas break, who accompanied him to the residence, both arriving at the property at approximately 10:17 p.m., a little over an hour after receipt of the anonymous call. Neither officer had sought a warrant to conduct a search of the mobile home.

The fenced property was “out in the country” in a “wooded area with pastures,” reachable via a gated dirt driveway. It was “full dark” when the officers arrived. The gate was open, and “No Trespassing” signs were not posted, so they entered and approached the mobile home intending to “question” its occupants to “see what they had to say.” As they drew near the single-wide mobile home, the officers saw a “little bonfire or campfire” in the yard with “drinks and stuff out there.” Lights were on inside the home and a dog was running loose in the yard. At the front of the mobile home, the deputies saw a “kind of a path to the front door” roughly outlined by scattered “junk and things” in the yard. The deputies followed the path and approached the front door where a single step up was located. They knocked, identifying themselves as police officers, but no one answered. Deputy Tysall thought she heard something rustling, so she and Deputy Shea entered the back yard where some cows were in a pen at the far side of the property. The officers then approached the home from the rear and knocked on its back door, announced themselves, and again obtained no response.

Deputy Shea then went back to the front of the mobile home where he decided to look in a window that was about two feet to the left of the front door. He did so, telling Deputy Tysall that he saw marijuana plants inside. Deputy Tysall decided to the look in the window to verify what Deputy Shea saw. To see in the window, she had to stand to the left of the front door, at eye level with the window, off of the single door step. Deputy Tysall agreed she “could not observe anything through that window if [she was] actually on the step knocking on the door.” From the vantage point away from the front door, their faces no more than a hand’s length from the window pane, however, the deputies could see into the lighted living room area directly inside the window. By looking sharply to the right, they could see into the kitchen area back across the entryway — where the anonymous caller said the plants would be. There, under a table in the kitchen, the deputies saw a number of small marijuana plants under a grow light.

Next, Deputy Tysall called Deputy Geoffrey Condy, the county’s sole narcotics investigator, who soon arrived. Deputies Tysall and Shea explained the situation, telling Deputy Condy what window to look in. Following suit, Deputy Condy looked in the window — his face a “couple of inches” from the glass — and confirmed that the plants appeared to be marijuana. He then called an assistant state attorney who, upon being apprised of the situation, advised the officers to enter and secure the home.

At about 10:45 p.m., the three deputies — still without a warrant — entered the home through the unlocked back door (the front was locked). Powell was in the back bedroom, awake on his bed; Wilbourn was in the bathroom. Both were arrested, handcuffed, and seated on their living room couch. “Unhappy” with the situation, they said little except to call the officers “trespassers.”

At this point, Deputies Condy and Shea decided to leave to get a search warrant; Deputy Tysall remained to secure the scene. After obtaining a warrant, a search of the home was conducted and an inventory compiled: ten marijuana plants six to eight inches tall; a seedling; a few pipes; two lamps, and a digital kitchen scale. Other than the pipes, the search under the warrant produced nothing beyond what had already been observed by the deputies by looking in the window and via their warrantless entry of the home.

The officers involved testified that the only basis for entering the property was the anonymous phone call; no other alleged criminal activities had been reported; no emergency or exigent circumstances existed; officers were not in “hot pursuit” of anyone; and no probable cause existed to arrest anyone (until after they looked in the window and saw the plants). No threats were made by Powell or Wilb-ourn; no weapons were found.

Powell and Wilbourn were charged with possession and manufacture of cannabis and possession of a device, the scales, used in the manufacturing process. Both filed dispositive motions to dismiss the charges, claiming all the evidence against them (i.e., the inventory) was obtained via unconstitutional searches of their home. The trial court held a suppression hearing at which Deputies Tysall and Condy testified (Deputy Shea no longer worked with the sheriffs department); three exhibits were entered (the search warrant, its supporting affidavit, and the inventory of the search). Powell and Wilbourn pled to the charges after the trial court summarily denied their motions, reserving their rights to lodge appeals, which we now address in this consolidated opinion.

II.

Powell and Wilbourn say it was error to deny their suppression motions because the evidence against them was obtained pursuant to two illegal searches of their home: the officers’ incursion into their back yard and the officers’ viewing of the marijuana plants by standing at and looking through the front window of their home. We address only that latter contention because it disposes of this case.

A.

The Fourth Amendment, which establishes the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” is often said to protect “people, not places” within its ambit. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). But we know from its text that the Fourth Amendment grants explicit protection to a special place: one’s home.

With this focus in mind, Fourth Amendment analysis has evolved into two seemingly different, but somewhat interrelated, methods of identifying protectable interests. The more recently adopted formulation, also known at the Katz test, focuses on a person’s expectation of privacy. 389 U.S. at 361, 88 S.Ct. 507. Justice Harlan’s concurring opinion stated the test in its most familiar form: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Id. at 361, 88 S.Ct. 507 (Harlan, J., concurring). For the last forty years, Fourth Amendment jurisprudence has focused primarily on the Katz test and its subjective/objective privacy dichotomy.

A method of older lineage, known as the intrusion or trespassory test, focuses on whether government agents engaged in an “unauthorized physical penetration” into a constitutionally protected area. Silverman v. United States, 365 U.S. 505, 509, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); see also Olmstead v. United States, 277 U.S. 438, 466, 48 S.Ct. 564, 72 L.Ed. 944 (1928), overruled in part by Katz, 389 U.S. 347, 88 S.Ct. 507 (1967). In its 2011 Term, the United States Supreme Court reenergized the intrusion approach used in Silverman and earlier cases. In United States v. Jones, - U.S. -, -, 132 S.Ct. 945, 952, 181 L.Ed.2d 911 (2012), the Court held that placing an electronic tracking device on a suspect’s vehicle without consent was a trespass in violation of the Fourth Amendment. Id. at 949. In its holding, the Court explained that the “Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” Id. The Court further explained that the protections of the Fourth Amendment are implicated when the “Government physically occupie[s] private property for the purpose of obtaining information” without permission to do so. Id.

The privacy approach and the intrusion approach converge when the focus of a governmental search is the home. It is axiomatic that people have an expectation of privacy in their homes that society recognizes as reasonable; indeed, this expectation exists even for overnight guests in a home. Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (defendant’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable”). And by its text, the Fourth Amendment grants explicit protection to people to be secure in their houses so they may retreat therein and exclude others. See, e.g., Silverman, 365 U.S. at 511, 81 S.Ct. 679 (“At the very core” of the history of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”) (citing Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.); 19 How. St. Tr. 1029, 1066).

B.

Under the privacy and intrusion approaches, the home and its curtilage— the the area closely surrounding the home — are constitutionally protected. Because it is appurtenant to the home, the curtilage is entitled to the same Fourth Amendment protection as the area within the home. See California v. Ciraolo, 476 U.S. 207, 212, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); see also Pinyan v. State, 523 So.2d 718, 720 (Fla. 1st DCA 1988) (“It is well settled that the Fourth Amendment protection of the home extends to the cur-tilage of a residence.”). This is so because the curtilage is “an area intimately linked to the home, both physically and psychologically,” thereby entitling it to protection from unreasonable searches. Ciraolo, 476 U.S. at 212-13, 106 S.Ct. 1809. Under the privacy approach, the Supreme Court has noted that “society accepts as reasonable citizens’ expectations of privacy in the area immediately surrounding their homes.” Ciraolo, 476 U.S. 207 at 221, 106 S.Ct. 1809, 90 L.Ed.2d 210. Under the intrusion approach, the constitutional protection of the curtilage pre-dates Katz, as mentioned in Olmstead. 277 U.S. at 466, 48 S.Ct. 564 (“an actual physical invasion of his house ‘or curtilage’ for the purpose of making a seizure” violates Fourth Amendment).

Simply because an area is deemed within the curtilage does not mean it is shielded from public or governmental view from a publicly-aceessible area.

That the area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.

Ciraolo, 476 U.S. at 213, 106 S.Ct. 1809. Thus, police officers may use ordinary means from a public position outside the curtilage to view activities occurring within the curtilage, such as the viewing of marijuana plants with the naked eye in Ciraolo. Id. at 213-14, 106 S.Ct. 1809 (“Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.”); see also Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989) (police officers’ “naked eye” observation into partially-covered greenhouse in home’s back yard from helicopter at 400 feet not a search requiring a warrant). Cf. State v. Barnes, 390 So.2d 1243, 1244 (Fla. 1st DCA 1980) (officer’s use of high-powered telescope to view marijuana in back yard “is an intrusion into an area in which there is a reasonable expectation of privacy, accomplished by special equipment not in general use”).

Police “knock and talk” encounters at a home — where officers approach the front door — are permissible provided certain norms are met. Governmental actors, like private actors, have a limited license to approach a dwelling on a defined path, knock on the front door, briefly await an answer, and either engage in a consensual encounter with the resident or immediately depart. See, e.g., Nieminski v. State, 60 So.3d 521, 526 (Fla. 2d DCA 2011); Waldo v. State, 975 So.2d 542, 543 (Fla. 1st DCA 2008). A resident has the option to either open the door or refuse to do so. Kentucky v. King, - U.S. -, -, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011) (whether knock is by “police officer or a private citizen, the occupant has no obligation to open the door or to speak.”). “And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.” Id.; see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (“Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions.”).

The existence and extent of a license that would permit a “knock and talk” depends on the circumstances; homeowners who post “No Trespassing” or “No Soliciting” signs effectively negate a license to enter the posted property. See § 810.09, Fla. Stat. (Florida’s trespass statute). Where no signs forbid entry, and there is a recognizable pathway to a front door, a limited license to enter the property on the pathway and knock on the door exists. Nieminski, 60 So.3d at 526-27. Where such a license is established, the resident does not have a reasonable expectation of privacy in what is plainly viewed from the vantage point of a temporary visitor who walks along the pathway or stands at the doorway. See State v. Morsman, 394 So.2d 408, 408-09 (Fla.1981) (discussing legality of seizure of contraband within plain view of where an officer has a right to be, such as a “front porch where salesmen or visitors may appear at any time”); State v. Kennedy, 953 So.2d 655, 656-57 (Fla. 1st DCA 2007) (collecting cases).

It is a different matter when police officers choose to physically enter other portions of a home’s curtilage — areas where they have no right to be. See, e.g., Olivera v. State, 315 So.2d 487, 488 (Fla. 2d DCA 1975) (leaving walkway and crossing grass to stand next to a window to listen to conversation inside was unreasonable). Even when governmental agents are engaging in otherwise lawful “knock- and-talks,” they can exceed the scope of a reasonable visit to a front door or porch through physical actions that encroach into areas in which the resident has a reasonable expectation of privacy. State v. Adams, 378 So.2d 72, 74 (Fla. 3d DCA 1979) (standing on a chair on front porch to look down from a window into apartment was unreasonable). Cf. State v. Leonard, 764 So.2d 663, 664 (Fla. 1st DCA 2000) (stretching to full height and standing on tiptoes on doorsill was reasonable).

C.

Turning to the case at hand, we focus only on whether the officers peering into the window violated the Fourth Amendment. In doing so, we need not pass upon the constitutionality of the officers’ entry into the back yard, which bore no evidence used against Powell or Wilbourn.

We begin with the burden of proof. Because the officers lacked a warrant at the time they looked in the window, the burden rested with the State to justify an exception to the warrant requirement. Hilton v. State, 961 So.2d 284, 296 (Fla.2007) (“When a search or seizure is conducted without a warrant, the government bears the burden of demonstrating that the search or seizure was reasonable.”); Kilburn v. State, 54 So.3d 625, 627 (Fla. 1st DCA 2011) (“A warrantless search is per se unreasonable under the Fourth Amendment subject to a few well-defined exceptions.... The State has the burden to prove that an exception to the warrant requirement applies.”) (citation omitted).

To meet its burden, the State presented the testimony of two officers along with the search warrant. Because the trial court made no written findings of fact, “we view the evidence and all reasonable inferences from it in the light most favorable to sustaining the order.” State v. DeLuca, 40 So.3d 120, 123 (Fla. 1st DCA 2010). Of course, “a suppression order that turns on an issue of law is reviewed by the de novo standard of review.” Ikner v. State, 756 So.2d 1116, 1118 (Fla. 1st DCA 2000).

Here, our task is made easy because there are no disputed facts: the officers candidly explained what they did and why they did it. No dispute exists that the officers were within the curtilage of the home when they peered into the window; the officers conceded as much in their testimony. To our knowledge, no court has held that an area within arm’s length of a home’s window is anything other than within the curtilage.

The question then becomes whether the officers looking into the window violated either the privacy or intrusion tests. We apply the latter first, it being the more straightforward. Under the intrusion approach, we query whether the police officers physically “occupied private property for the purpose of obtaining information” without express or implied permission to do so, thereby intruding into an area protected by the Fourth Amendment. Jones, 132 S.Ct. at 949. Here, the deputies initially followed established norms: they approached the front door via the pathway, took one step up, and knocked. Receiving no response, a private citizen would have had no choice but to depart immediately via the pathway. Indeed, Deputy Tysall acknowledged that if someone inside the home had told the officers to go away, they would have done so after asking if the occupants were okay.

The deputies, however, deviated from established norms by entering upon that portion of the property directly in front of the window. Nothing in their testimony or the record establishes any license to do that. The officers had to step off the front door step, move two feet to the left, and position themselves directly in front of the window, their faces no more than a foot away. At that point they were virtually within the home without breaking its close. Because they physically entered a part of the curtilage where they had no right to be for the purpose of gaining information, the intrusion test is met.

Similarly, the State’s evidence lacked any indicia that the privacy of the mobile home’s kitchen area had been diminished by its occupants. No evidence exists that Powell or Wilbourn knowingly exposed the interior of their home where the plants were located to the public view or impliedly licensed the general public to peer in their front window from a foot away. No evidence was presented that the kitchen area (where the plants were located) could be seen from the public roadway, from the pathway leading to the front door, or from the front door itself. Instead, the plants could only be seen from outside the home by stepping away from the front door, placing officers within a hand’s width of the window pane, casting their view rightward at an acute angle. As in Olivera, Powell and Wilbourn “could reasonably expect that no one would observe or overhear [their] activities” from just outside their window. 315 So.2d at 491. We agree with the Second District that “the implications of sanctioning police surveillance by standing in a yard at one’s window in the middle of the night' are too obvious to require elaboration.” Id. (footnote omitted). Because nothing negates the subjectively and objectively reasonable expectation of privacy within the kitchen area of the mobile home (or at the front widow itself), the privacy test is met.

The State argues that no expectation of privacy exists on a “front porch” and that the officers “had to simply step off the porch a few feet from the front door where the window was at eye level” to be able to look into the home. We agree that no expectation of privacy exists on a front porch exposed to the public and impliedly open to view, including (as is the case here) the single step up to the front door (there being no “porch” in the common meaning of the word). We cannot agree, however, that stepping off a porch, even a few feet, onto portions of the curtilage where persons are uninvited and then looking into the home at a sharp angle from a hand’s length away from the window pane is anything other than an impermissible intrusion into constitutionally protected space. Whether two feet or twenty, the distance between the door and window matters little given that the officers said they could not see the plants without leaving the front door step and positioning themselves at a spot where they had no right to be. See also Morsman, 394 So.2d at 408 (plain view doctrine “applies only when the officer has a legal right to be at his viewpoint”).

At oral argument, the State urged that we consider the window to be “closely associated” with the front door of the mobile home and thereby hold that it is entitled to no more protection than a window in the door itself through which any visitor could see. This argument was not raised below, nor in the State’s appellate brief, so we need not consider it. Even so, no evidence was presented at the suppression hearing that the window was “closely associated” with the door. The State presented no pictures of the door, window, or the mobile home itself. In addition, the testimony established that it was necessary to get off the front door step and move over to the window to see inside; and that it was necessary to be within less than a foot of the window looking sharply to the right to see into the kitchen area where the plants were located. Under these circumstances, the window cannot be considered to be “closely associated” with the mobile home’s front door.

That said, we can envision front door configurations that have windows incorporated directly into their designs through which a visitor might be able to see the interior using no unusual means or devices. This case simply does not involve such a situation. Under certain circumstances, implicit permission may exist to look through an un-curtained window while standing on a front porch momentarily to see whether the resident is approaching the door, assuming no unreasonable means or devices are used. Cf. State v. Rose, 128 Wash.2d 388, 909 P.2d 280, 283 (1996) (while standing on front porch, officer looked through window with flashlight into home). No similar permission exists, however, to step away from a front door or deviate from a walkway or path to look into windows or enter other protected areas around the home simply because a knock on the front door goes unanswered. See Morsman, 394 So.2d at 408 (entering back yard after no answer at front door an unlawful search); Lollie, 14 So.3d at 1079 (constitutional protection of side and backyard areas of home “does not depend on whether someone might be home”); Waldo, 975 So.2d at 543 (entry into side and back yards unlawful after “nobody answered” knock on front door); Olivera, 315 So.2d at 488 (leaving sidewalk, walking across grass to window, and listening to conversations an unlawful search); see also U.S. v. Fuentes, 800 F.Supp.2d 1144 (D.Or.2011) (entering curtilage and standing “within inches of a window” to peer into home as way to contact occupant unlawful).

To the extent exigent circumstances might warrant a different conclusion, the State makes no argument that any existed. Moreover, that the “knock and talk” was prompted by a call from an anonymous tipster makes it all that more important that officers act with circumspection. For example, the tip in Morsman “was received from a neighbor who had heard it from another neighbor.” 394 So.2d at 409.

Dependability of such second-hand hearsay is dubious. When hearsay makes up the basis of a complaint, the warrant clause requires that the evidence be presented to a detached magistrate to decide if the hearsay information gives probable cause to conduct a search. If it does, the magistrate may then issue a search warrant.... Under this procedure, a person is protected from an unreasonable search in violation of his Fourth Amendment rights.

Id. Here, as in Morsman, it is “impossible to tell from the record before us whether the information conveyed to the police ... was in any way worthy of belief at the time it was conveyed. It is exactly this type of situation which mandates the protection of the Fourth Amendment.” Id. That the anonymous tip proved accurate, and that the officers acted with good intentions, does not alter the legal conclusion that the search was improper. See Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (“The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.”).

In concluding the search was unlawful, we do not suggest in any way that officers should ignore information or be less vigilant in pursuing the law enforcement priorities of their communities; prompt action by officers is highly commendable. But the end result must conform with constitutional principles. Based on the foregoing, we hold that under either the expectation of privacy approach or the intrusion approach, the officers’ intrusion into a constitutionally protected area without a warrant and peering into a window constituted an unconstitutional search.

III.

Since oral argument in this case, the United States Supreme Court issued its decision in Florida v. Jardines, - U.S. -, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), which bolsters our holding in this case. In Jardines, after receiving a tip that the defendant was growing marijuana in his home, an officer approached the defendant’s front porch accompanied by a drug-detection dog. Id. at 1413. The dog, after sniffing at the base of the front door, alerted for the presence of marijuana. Id. Officers used this information to obtain a search warrant, and upon execution of the warrant seized marijuana plants inside the home. Id.

Justice Scalia, writing for the Court, affirmed our supreme court’s conclusion that police officers intruded upon the curti-lage of the home by bringing a dog that could detect the smell of contraband emanating from within. Applying the intrusion analysis reenergized by Jones, the Court held that once it is established that officers are in a constitutionally protected area, “the only question is whether [the homeowner] had given his leave (even implicitly)” for them to be there. Id. at 1415. In concluding they had not, Justice Scalia pointed out that a knocker on the front door is an “implicit license” that “typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Id. A “police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.’ ” Id. (citing Kentucky v. King, - U.S. -, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011)). Jardines confirms that officers can do “knock-and-talks,” but it provides no support for the notion that they can step off the front steps and enter other portions of the curti-lage to engage in a search without demonstrating an exception to the constitution’s requirement of a warrant.

Moreover, going beyond the accepted social norm of approach/knoek/leave-if-no-answer exceeds the implied license that a door knocker or pathway to the front door may invite. One way the license can be exceeded is where officers enter the curti-lage, bringing along detection devices used to conduct a search. As the Court held, “[a]n invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker.” Id. at 1416. Pertinent to this case, the Court noted: “To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.” Id.

Another way the license can be exceeded is where the purpose for which the license exists is violated. For example, a license may allow entry to a designated physical area, such as the front door or porch, but for only specific purposes. As the Court noted, “[c]onsent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.” Id.

Jardines has two significant takeaways. First, it punctuates that “when it comes to the Fourth Amendment, the home is first among equals” and that the constitutional protection of the curtilage springs from “ancient and durable roots.” Id. at 1414. Thus, “an officer’s leave to gather information is sharply circumscribed when he steps off [public] thoroughfares and enters the Fourth Amendment’s protected areas.” Id. at 1415. Of importance here, Justice Scalia said the right to retreat into the home to be free from unreasonable governmental intrusion “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would he significantly diminished if the 'police could enter a man’s property to observe his repose from just outside the front window.” Id. at 1414 (emphasis added). Like our analysis here, Justice Scalia focused on the fact that police “gathered ... information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.” Id. at 1414.

Second, courts need not labor under the Katz privacy approach when the two-step intrusion approach establishes a violation. As Justice Scalia noted:

we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.

Id. at 1417. Cases involving warrantless searches of the home or curtilage may be somewhat easier to analyze under the intrusion approach because the property interests are generally better defined. The lack of a physical intrusion, of course, does not end the story in many Fourth Amendment cases, making the Katz privacy test the primary means of analysis. As the Supreme Court emphasized in Jones, and now in Jardines, the two tests complement one another; the courts of this state must consider both approaches in conformity with these precedents. See Art. I, § 12, Fla. Const, (state constitutional rights against unreasonable searches and seizures “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court”).

IV.

In summary, we conclude that the officers’ intrusion into the curtilage of the mobile home, on a part of the property on which they had no legal right to be, and peering through a window a hand’s length away at a sharp angle into an otherwise private part of the home, constituted a search in violation of the Fourth Amendment under both the expectation of privacy test and the intrusion test. Either'way, this entry into the protected private space of the home was an improper attempt to verify an anonymous tip. Morsman, 394 So.2d at 410 (“The shortcut taken by skipping the application for a warrant was unjustified and violated defendant’s Fourth Amendment right to be free from an unreasonable search and seizure.”). Under the exclusionary rule, we are compelled to reverse the convictions, which were based entirely on evidence obtained due to the unlawful search. Art. I, § 12, Fla. Const. (“Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”); see also Wong Sun v. United States, 371 U.S. 471, 484-85, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (evidence obtained by Fourth Amendment violation excluded as “fruit of the poisonous tree”). As the State has stipulated that the motions to suppress are disposi-tive, we REVERSE.

LEWIS, J., concurs.

THOMAS, J., concurs in result only.

OPINION ON MOTION FOR REHEARING

MAKAR, J.

The State’s motion for rehearing does not challenge our holding that reversal of the defendants’ convictions is required because of the unconstitutional search of their home. Instead the State raises two points of appellate practice, one requiring little discussion, the other more elaboration.

The State’s motion begins by saying our opinion should be clarified because it “implies that the Appellee has to preserve claims” in the trial court. (Triple emphasis in original). The State is correct as to this introductory point of law: State v. Hankerson, 65 So.3d 502, 505 (Fla.2011) (“[T]he reviewing court may not preclude an appellee from raising an alternative basis to support the trial court’s ruling solely because the argument was not preserved.”). To the extent our opinion can be read to the contrary, we clarify that it should not be.

But the State’s motion insists upon much more. The State claims we are required under the tipsy coachman doctrine to consider an issue, such as its “closely-associated” with the front door theory, raised for the first time at oral argument. The doctrine is a “longstanding principle of appellate law [that] allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ ” Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (citing Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-15 (Fla.1999)); see also Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979). We find no merit in the State’s claim for a number of reasons.

First, a foundational principle of appellate review is that “if a claim is not raised in the trial court, it will not be considered on appeal.” Robertson, 829 So.2d at 906 (citing Radio Station WQBA, 731 So.2d at 644). This bedrock principle is a general one that has limited exceptions. For example, “[notwithstanding this principle ‘[i]n some circumstances, even though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling.’ ” Robertson, 829 So.2d at 906 (quoting Radio Station WQBA, 731 So.2d at 644). The Florida Supreme Court in Robertson italicized the phrase “in the record” from Radio Station WQBA to emphasize that an appellee may invoke the tipsy coachman doctrine if its legal arguments are supported by the record. 731 So.2d at 645; see Robertson, 829 So.2d at 906-07 (“The key to the application of this doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court.”); see also Padova-no, Florida Appellate Practice 343 (2011 ed.) (the “record must support the alternative theory that would be used to justify the order.”). This principle can extend to situations where a record exists, but factual findings necessary for application of the doctrine were not made. See Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) (tipsy coachman rule inapplicable “where a lower court has not made factual findings on an issue”).

Here, not only was the “closely-associated” argument not made or developed below, nothing in the record supports it: no testimony on the topic was offered, no photos of the window or door were entered in evidence, no documents were presented that addressed the matter, and the trial court made no factual findings on the issue. Indeed, the State points us to no case that has ever addressed such an issue. As such, this case is a poor vehicle for the State’s argument that the tipsy coachman doctrine should apply to the new issue it raised at oral argument.

That said, although first principles dictate that we ought not consider arguments outside the scope of the briefing process, here we chose to very briefly discuss the issue the State first raised at oral argument, saying we could envision situations where a window configuration might be incorporated into a door’s design and become relevant under privacy analysis; but we were not required to do so. The State suggests we were, directing us to four cases in which it says panels of this Court over the past forty years have addressed issues raised for the first time at oral argument (typically dismissing them as meritless). That a panel chooses to discuss an issue raised for the first time at oral argument is a far cry from a duty that it must do so. Exceptions do not make the rule. The tipsy coachman doctrine allows appellate courts to consider grounds for affirmance if the record supports doing so; it does not compel them to overlook deficient records and blaze new trails that even the tipsiest of coachmen could not have traversed.

Basic principles of due process suggest that courts should not consider issues raised for the first time at oral argument. Doing so deprives appellants of the opportunity to have responded to the arguments in their reply briefs, and unfairly limits their ability to do so in the fleeting minutes of their reply arguments. As Judge Posner has noted, “it would not be quite cricket” for an appellate court to decide a case on a new issue raised for the first time at oral argument because, among other reasons, appellees might be “lulled into thinking” the appellants are “fighting the claim on other grounds.” Principal Mut. Life Ins. Co. v. Charter Barclay Hosp., Inc., 81 F.3d 53, 56 (7th Cir.1996). Allowing the practice of raising new issues at oral argument could create an incentive for litigants to do so. From a strategic standpoint, why would appellees not raise new issues during oral arguments if doing so forces appellants to use their scarce reply time (typically only a few minutes) to respond, dissipating or even eliminating the allocated time to discuss the actual issues raised in the briefing process? Professionalism dictates to the contrary, but it happens.

As an ancillary justification for its position, the State points out that appellate courts sometimes affirm decisions where the State has waived its right to file an answer brief. The inference to be drawn is that appellate courts must shoulder the work of appellees that fail to brief issues (or raise new issues at oral argument). In support of this claim, the State cites two cases, neither of which advances its cause. First, the criminal case it cites involves an instance of this Court criticizing the State for filing a waiver of its answer brief when the brief was required. Warren v. State, 95 So.3d 366 (Fla. 1st DCA 2012). The panel’s first sentence in Warren summarily affirmed the case, but the remainder of the opinion was devoted to reminding the State of its obligation to file such briefs. Id. at 367-68. Of importance here, the panel stated that if the State chose to waive its filing of an answer brief, it forfeited its opportunity to be heard in the class of post-conviction cases at issue. 95 So.3d at 368. Our reading of Warren, rather than supporting the State’s position, suggests the contrary: when the State waives its right to file an answer brief it loses its advocational advantage.

Second, the State cites Bank of Central Florida v. Department of Banking & Finance, 470 So.2d 742 (Fla. 1st DCA 1985), a civil case that is easily distinguishable and therefore unhelpful. Unlike this case, Bank of Central Florida involved multiple appellees, one of which — the Florida Department of Banking and Finance — chose not to file a brief of its own, which happens with some degree of regularity in state governmental practice. This Court affirmed without a brief from the Department, but it had the benefit of advocacy from the non-governmental appellees. Thus, Bank of Central Florida has no relevance to the State’s argument made here that courts must consider issues not raised, briefed or asserted on appeal.

On a broader point, that an appellate court may choose to issue an affirmance in a case where the State does not file a brief does not make the judicial practice of doing so compulsory; affirmance may be warranted for any number of reasons unrelated to a tipsy coachman analysis (failure to preserve an issue for review being the prime example). Courts issue per cu-riam affirmances with regularity without briefing from appellees; no one suggests that doing so supports a compulsory judicial duty to do the work of the absent appellees. Imposition of such a broad duty would come close to requiring the judiciary to act as an advocate for appel-lees who choose not to provide briefs, argument, or other advocacy. It would also tread closely to separation of powers concerns where executive branch actors (such as the State) are involved.

We think the better approach — and one that other jurisdictions embrace — is to look askance at the practice of presenting new grounds for affirmance for the first time at oral argument. For example, the Third District refused to allow the tipsy coachman doctrine to apply in such situations. E.K. v. Dep’t of Children & Family Servs., 948 So.2d 54, 57 (Fla. 3d DCA 2007) (“[the appellee’s] primary ground for affir-mance was not known either to us or opposing counsel until articulated during oral argument. We are unwilling to allow [the appellee] to invoke the [tipsy coachman] doctrine under these circumstances.”). As that court noted, the tipsy coachman doctrine “does not rescue parties from their own inattention to important legal detail.” Id.

In conclusion, we clarify our opinion in part, but reject the broader claim that an appellate court must consider issues the State as appellee raises for the first time at oral argument. We stop short of saying never. Rare or unusual instances may arise where an appellate court chooses to consider an argument made for the first time on appeal by an appellee, perhaps because the appellant conceded the issue, because the court allowed for post-argument briefing on the matter, and so on. But we find no basis for recognizing an inflexible principle that a court must do so. We fully recognize our obligation to ensure that justice is served by careful review of each case that comes before us; but this obligation does not relieve the State, or any other litigant, from the orderly administration of justice that disfavors raising new issues at oral argument. Based on the foregoing, the State’s motion for rehearing is granted in part and denied in part.

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

      . Its estimated 2010 population was 8,870. See U.S. Census Bureau, 2010 Census of the United States, State and County Quick Facts, http://quickfacts.census.gov/qfd/states/12000. html (visited April 1, 2013).

      . See Big Bend, Wikipedia ("Perhaps the most culturally relevant definition of the Big Bend region is the section of west peninsular Florida's coast without barrier islands — the section from Anclote Key (or the Anclote River), near Tarpon Springs to Ochlockonee Bay, near Alligator Point.”), http://en.wikipedia.org/wiki/ Big_Bend_(Florida) (last visited April 1, 2013).

      . Debate exists on whether the older Supreme Court decisions used a true “trespassory” approach versus an "intrusion” approach. See Orin Kerr, The Curious History of Fourth Amendment Searches, 2012 Sup.Ct. Rev. (forthcoming 2013). We use the phrase "intrusion” because it appears to more accurately describe the Supreme Court's analytical approach.

      . See State v. Hamilton, 660 So.2d 1038, 1042 (Fla.1995) (discussing common law and contemporary meanings of what constitutes the curtilage).

      . Had entry into the backyard yielded incriminating evidence, caselaw with nearly identical facts would require reversal. See State v. Morsman, 394 So.2d 408 (Fla.1981); Lollie v. State, 14 So.3d 1078 (Fla. 1st DCA 2009); Waldo v. State, 975 So.2d 542 (Fla. 1st DCA 2008).

      . Hankerson appears to have overruled past practices where appellate courts declined to review issues that appellees had not preserved. See, e.g., Martin v. Town of Palm Beach, 643 So.2d 112, 114 (Fla. 4th DCA 1994) (court declined to rule on issue because town "did not raise this matter in a cross-appeal or in its appellate brief" it "failed to properly preserve this issue for appellate review”).

      . Though not plentiful, others exist. See, e.g., Graney v. Caduceus Props., LLC, 91 So.3d 220, 224 (Fla. 1st DCA 2012) (dismissing as "refuted by the record” an issue first raised at oral argument but not addressed in answer brief).

      . In two of the cases, it is unclear whether the issue was raised for the first time at oral argument only. Glendale Fed. Sav. & Loan v. State Dep’t of Ins., 485 So.2d 1321 (Fla. 1st DCA 1986) (issue argued at oral argument, but no indication whether it was raised there for the first time); Williams v. Peninsular Life Ins. Co., 306 So.2d 144 (Fla. 1st DCA 1975) (unbriefed issue raised at oral argument and by notice of intention to rely on a cited case).

        . McCoy v. State, 639 So.2d 163, 167 (Fla. 1st DCA 1994) (rejecting State’s argument); Keyes v. Tallahassee Mem'l Reg'l Med. Ctr., 579 So.2d 201, 204 n. 5 (Fla. 1st DCA 1991) (argument deemed meritless).

      . In multiple-appellee cases, a governmental entity may decide that filing a brief is wasteful/duplicative if another appellee plans to file a brief that will adequately address the relevant issues on appeal; likewise, if a governmental entity decides to file a brief, other appellees may decide to forego briefing for similar reasons.

      . See generally 5 Am.Jur.2d Appellate Review § 542 (2013):
      On the theory that points which have not been briefed are waived, abandoned or forfeited, a party is not allowed to raise at oral argument a new issue for review on appeal, and an appellate court need not consider an issue that is raised in oral argument and has not been briefed. There is also the consideration of fairness, since raising a new issue at oral argument deprives the other party of the opportunity to respond in its brief. Counsel should therefore fully disclose their positions in their briefs before oral argument.
      (footnotes omitted). See also 5 C.J.S. Appeal & Error § 789 (2013):
      Generally, an appellate court will not consider issues raised for the first time at oral argument and not contained in the appellate brief. On the other hand, it has also been held that although an appellate court is not required to allow the parties an opportunity to address a point that was not originally raised by them, the appellate court may do so where it is satisfied that the only fair way to conduct judicial business is to either order a supplemental briefing or alert the parties to the issue prior to oral argument.
      (Footnotes omitted); 2A Fed. Proc., Laws. Ed. Appeal, Certiorari, and Review § 3.750 (2013) ("Moreover, a court of appeals need not consider an issue raised in oral argument which has not been briefed, on the theory that points which have not been briefed are waived.”) (footnotes omitted) (discussing how federal appeals courts approach the issue).


source: Caselaw Access Project

author: WOLF, J.

license: Public Domain

text:
    Kyle Alan TALLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5962.
    District Court of Appeal of Florida, First District.
    July 1, 2013.
    Rehearing Denied Sept. 10, 2013.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Wesley Paxson, III and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   WOLF, J.

Appellant, a juvenile, challenges his adult conviction for possession of ammunition by a juvenile delinquent. He asserts the trial court erred in denying his motion to suppress evidence discovered in his bedroom. Appellant lived in the home with his father and stepmother in their household. His stepmother gave consent for officers to search appellant’s bedroom; his father was not home at the time. Officers found ammunition in a box in appellant’s dresser drawer in his bedroom. Appellant moved to suppress the evidence, arguing his stepmother lacked the authority to consent to the search of the drawer and its contents, and the trial court denied the motion. We adopt the reasoning of State v. S.B., 758 So.2d 1253, 1254-55 (Fla. 4th DCA 2000), and hold that a parent may consent to a search of a juvenile’s bedroom.

This is not the first time we have had the opportunity to consider the authority of a third party to consent to a search on behalf of a co-occupant. In King v. State, 79 So.3d 236, 238-39 (Fla. 1st DCA 2012), we held, as between two cohabitating adults, a marital relationship alone does not give one spouse the authority to consent to a search of the other’s exclusively used, personal belongings. However, King considered the authority of third-party consent between two adults, not a juvenile. A juvenile does not have the right to exclude a parent from access or control over his or her personal belongings. See S.B., 758 So.2d at 1254-55. To hold as such would undermine the inherent authority of a parent. Id.

Here, we also extend that principle and find that under the circumstances of this case, the stepmother had the authority to consent to a search of appellant’s bedroom in her home and its contents. See United States v. Romero, 743 F.Supp.2d 1281, 1323-28 (D.N.M.2010).

The trial court’s order denying appellant’s motion to suppress evidence discovered in his bedroom dresser drawer is affirmed.

AFFIRMED.

OSTERHAUS, J., and SHEFFIELD, FRANK E., Associate Judge, concur.


author: DAVIS, Chief Judge.

text:
    Jeffrey H. ATWATER, as Chief Financial Officer; and Department of Financial Services, Petitioners, v. CITY OF CAPE CORAL; Armantina R. Pelaez; and National Equity Recovery Services, Inc., Respondents. Jeffrey H. Atwater, as Chief Financial Officer; and Department of Financial Services, Petitioners, v. Jasseth Blackwood; National Equity Recovery Services, Inc.; Pinewood Owners’ Association, Inc.; Ranger Insurance Company; and Fireservice, Inc., Respondents. Jeffrey H. Atwater, as Chief Financial Officer; and Department of Financial Services, Petitioners, v. Clara Costa; Caridad Romero, f/k/a Caridad Perez and Christino Romero; and National Equity Recovery Services, Inc., Respondents.
    Nos. 2D12-3260, 2D12-3285, 2D12-3536.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.

      Richard T. Donelan Jr., General Counsel, and Lori L. Jobe, Assistant General Counsel, Department of Financial Services, Tallahassee, for Petitioners.
    Stephen Russell, State Attorney, Fort Myers, and Dolores Menendez, Assistant City Attorney, Cape Coral, for Respondent City of Cape Coral.
    Donald A. Harrison, Riverview, for Respondent National Equity Recovery Services, Inc.
    No appearance for remaining Respondents.
   DAVIS, Chief Judge.

Jeffrey H. Atwater, Chief Financial Officer of the State of Florida (“the CFO”), and the Florida Department of Financial Services (“the Department”) petition this court for writs of prohibition to prevent the circuit court for the Twentieth Judicial Circuit and the circuit court for the Thirteenth Judicial Circuit from requiring the CFO to appear personally at show cause hearings in three separate cases. The show cause proceedings were instituted in Hillsborough and Lee Counties after the CFO failed to comply with the circuit courts’ orders requiring him to release funds held by the Department in the State School Fund to respondent National Equity Recovery Services, Inc. (“NERS”), and to the individual respondents with claim interests represented by NERS. After the circuit courts issued their orders, the CFO filed these petitions, claiming that the circuit courts exceeded their jurisdiction in requiring him to release funds and in attempting to hold him in contempt for the failure to do so. This court stayed the circuit court proceedings pending resolution of these petitions. Because the facts and legal issues are related, we consolidate these cases solely for the purpose of this opinion. We grant the petitions for the reasons that follow.

The instant proceedings arose from the entry of final summary judgments of foreclosure against the homeowners of three properties, pursuant to which the clerks of court sold the properties at foreclosure sales. Disbursements of the sale proceeds yielded surplus funds, which remained in the clerks’ registries for five years, after which they were remitted to the CFO as unclaimed property pursuant to section 43.19, Florida Statutes (2008).

Sometime after the funds were transferred to the CFO’s control, respondent NERS filed a postjudgment appearance in each of the original foreclosure proceedings and notified the courts that it had become the assignee of the former homeowners’ interests in the surplus funds. NERS requested that the courts direct the CFO to disburse the funds. The courts granted NERS’ motions and issued orders directing the CFO to release the funds in each case in two separate checks, a flat fee check to NERS and a check for the balance to the former homeowners. A few months later, on NERS’ motions, the courts issued orders to show cause why the CFO should not be held in contempt and possibly sanctioned by imposition of costs and attorney’s fees for his failure to comply with these orders and release the funds. The CFO did not file any pleadings or appear at any of the hearings on any of NERS’ motions. Instead, the CFO filed these petitions for writ of prohibition.

Statutory Construction

• Section 48.19

A review of the record shows that the surplus funds were transferred to the CFO pursuant to section 43.19. This statute provides for the disposition of funds that have been litigated or are uncontested but have remained unclaimed in the clerk of court registry for five years or longer. Section 43.19 also establishes the procedures for any person, firm, or corporation claiming a right to such funds, stating in pertinent part as follows:

(1) In every case in which the right to withdraw money deposited as hereinbe-fore provided has been adjudicated or is not in dispute and the money has remained so deposited for 5 years or more unclaimed by the person, firm, or corporation entitled thereto, on or before December 1 of each year the judge, or one of the judges, of the court shall direct that the money be deposited with the Chief Financial Officer to the credit of the State School Fund, to become a part of that fund, subject to the right of the person, firm, or corporation entitled thereto to receive the money as provided in subsection (3).
(3) Any person, firm or corporation entitled to any of the money may obtain an order directing the payment of the money to the claimant on written petition to the court from which the money was deposited or its successor, and written notice to the state attorney of the circuit wherein the court is situate, whether or not the court is a circuit court, and proof of right thereto, and the money deposited shall constitute and be a permanent appropriation for payments by the Chief Financial Officer of the state in obedience of such orders.

But transferring the funds pursuant to section 43.19 was in error. The surplus funds were the result of judicial foreclosure sales, and therefore section 45.032, Florida Statutes (2008), is the applicable statute.

• Section 45.032

In 2006, the legislature revised the provisions of chapter 45 and created section 45.032 to provide for disbursement of surplus funds after a judicial foreclosure sale. See ch. 2006-175 § 2, at 6-8, Laws of Fla.; see also § 45.031(7)(d) (“If there are funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements, the surplus shall be distributed as provided in this section and ss. 45.0315-45.035.”). See generally The Florida Bar, Creditors’ and Debtors’ Practice in Florida § 3.69 (2007). Section 45.032 became effective July 1, 2006. Establishing the proper procedures for the clerk, the court, and any person claiming a legal right to the surplus to follow, section 45.032 provides in pertinent part:

(3) During the 60 days after the clerk issues a certificate of disbursements, the clerk shall hold the surplus pending a court order.
(a) If the owner of record claims the surplus during the 60-day period and there is no subordinate lienholder, the court shall order the clerk to deduct any applicable service charges from the surplus and pay the remainder to the owner of record....
(c) If no claim is filed during the 60-day period, the clerk shall appoint a surplus trustee from a list of qualified surplus trustees as authorized in s. 45.034. Upon such appointment, the clerk shall prepare a notice of appointment of surplus trustee and shall furnish a copy to the surplus trustee....
(4) If the surplus trustee is unable to locate the owner of record entitled to the surplus within 1 year after appointment, the appointment shall terminate and the clerk shall notify the surplus trustee that his or her appointment was terminated. Thirty days after termination of the appointment of the surplus trustee, the clerk shall treat the remaining funds as unclaimed property to be deposited with the Chief Financial Officer pursuant to chapter 717.

Nothing in the record indicates that a surplus trustee was appointed or that the procedures set forth in section 45.032 were otherwise followed.

• Retrospective Application of Procedural Statutes

Because section 45.032 was enacted after the foreclosure sales resulting in the surplus proceeds but prior to the transfers, we must determine retroactivity. Compare Town of Lake Park v. Grimes, 963 So.2d 940 (Fla. 4th DCA 2007) (applying the preamendment procedures to the cases because all of the events took place prior to the amendment creating section 45.032), with Suarez v. Edgehill, 20 So.3d 410, 412 (Fla. 3d DCA 2009) (explaining that because the events took place after July 1, 2006, the case was controlled by section 45.032).

“A procedural statute is ‘to be applied retrospectively’ and is ‘to be applied to pending cases.’ ” Mortimer v. State, 100 So.3d 99, 103 (Fla. 4th DCA 2012) (quoting Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994)). Section 45.032 is procedural in nature. See Alamo Rent-A-Car, 632 So.2d at 1358 (“[S]ubstantive law prescribes duties and rights[,] and procedural law concerns the means and methods to apply and enforce those duties and rights.”); see also Fla. H.R. Just., HB65 (2006) Staff Analysis (Apr. 20, 2006) (explaining that the statute was created to provide a procedure for distribution of surplus funds to the former property owner after a judicial foreclosure sale). When the amendment took effect on July 1, 2006, the funds were in the court registry. After the amendment’s effective date, the funds were transferred to the CFO. Therefore, section 45.032 governed the disposition of the surplus funds even though the events that generated them occurred before the effective date of the statute. See, e.g., Mortimer, 100 So.3d at 103 (holding that the application of a procedural rule of evidence to events that occurred before the effective date of the statute did not violate the prohibition against applying laws ex post facto). Additionally, because the two statutes seemingly covered the same subject matter, the more specific provisions of section 45.032, rather than the more general provisions of section 43.19, applied to the pending surplus funds. See generally Parole Comm’n v. Smith, 896 So.2d 966, 970 (Fla. 2d DCA 2005) (“[I]n construing conflicting statutes, a specific statute covering a particular subject area controls over a statute covering the same and other subjects in more general terms.”).

• Surplus Funds Become Unclaimed Property

Had the circuit court and the clerk applied section 45.032 retrospectively after it took effect in 2006, a surplus trustee would have been appointed after no one claimed the funds. See § 45.032(3)(c). If the surplus trustee had been unable to locate the owner of the surplus within a year, “the clerk [would have] treat[ed] the remaining funds as unclaimed property to be deposited with the Chief Financial Officer pursuant to chapter 717.” See § 45.032(4). Therefore, the surplus funds ultimately would have been transferred to the CFO in 2007. Once the funds were remitted to the CFO, the claimant or his or her representative would then have been required to file an unclaimed property request for the surplus funds with the Department. See § 717.124(1), Fla. Stat. (2008) (“Any person, excluding another state, claiming an interest in any property paid or delivered to the department under this chapter may file with the department a claim on a form prescribed by the department and verified by the claimant or the claimant’s representative.”). Once the funds were in the CFO’s possession, the final determination as to the disposition would have been solely within the purview of the CFO and the Department.

Authority to Regulate Unclaimed Funds

Article 4, section 4(c) of the Florida Constitution vests the CFO with exclusive authority to examine and approve all claims for unclaimed funds under chapter 717. See also Atwater v. Citibank, F.S.B., 96 So.3d 1010, 1012 (Fla. 3d DCA 2012) (“The Department of Financial Services is vested with the sole authority to make financial determinations as to unclaimed funds.”). Additionally, “[i]t is and has been the intent of the [legislature that, pursuant to [section] 717.124, the department determines the merits of claims for property paid or delivered to the department under this chapter.” § 717.1242(1). Although this provision expressly relates to probate proceedings, the rationale and intent of the legislature are applicable to civil claims regarding unclaimed property. Under section 717.138, the legislature specifically provided the department with the authority to “administer and provide for the enforcement of [chapter 717].” The Department was granted the “authority to adopt rules pursuant to [sections] 120.536(1) and 120.54 to implement the provisions of this chapter.” § 717.138; see also § 717.124. Once entitlement to the surplus funds as unclaimed property has been determined, the funds are then payable to the beneficiary by state warrant drawn by the CFO. See § 215.965, Fla. Stat. (2008) (“Except as provided in ... s. 717.124(4)(b) ..., all moneys in the State Treasury shall be disbursed by state warrant, drawn by the Chief Financial Officer upon the State Treasury and payable to the ultimate beneficiary.”).

Circuit Court’s Jurisdiction

In these cases, the funds, after being held by the respective clerks of courts for five years or longer, were transferred to the CFO to become part of the State School Fund. The homeowners and NERS moved the courts for orders directing the CFO to release the unclaimed funds. The courts, acting under the authority of section 43.19(3), granted the motions and issued the orders. These acts were beyond the courts’ authority. Once the funds were transferred to the CFO, albeit under the wrong statute, the correct and applicable provisions of section 45.032 provided that the surplus funds became unclaimed property controlled by chapter 717, which vests the CFO and the Department alone with the authority to make the final determination as to the disposition of the unclaimed surplus funds. See § 717.1242. Because the CFO has the exclusive power to distribute the surplus funds, the courts acted in excess of their authority and jurisdiction when they directed the release of the funds, issued orders to show cause, and attempted to hold the CFO in contempt. Accordingly, we grant the petitions for writs of prohibition in these cases, vacate the stays of the circuit court proceedings that we previously imposed, and vacate the circuit courts’ orders to show cause.

However, we must observe that the extensive litigation of these extraordinary writ proceedings and countless hours of judicial review in this court could have been avoided had the parties acted appropriately in the circuit courts. The contempt proceedings arose from the CFO’s failure to respond to the circuit courts’ orders. The CFO, out of respect for the judiciary, should have filed a limited appearance in the circuit courts and advised the courts of the proper procedures. For example, in case 2D12-3285, the CFO issued a check to the former homeowner for the entire surplus amount on January 20, 2012, after the owner filed a pro se claim with the Department and after the court issued its first order directing payment. Also, NERS’ various motions to the courts to direct the release of the funds apparently were driven by the company’s attempt to sidestep the fee structure cap for claimant’s representatives like NERS. Based on prior court proceedings, NERS, at least in its corporate capacity, was aware of the procedures delineated in section 45.032 yet did not bring this to the courts’ attention. See, e.g., Nat’l Equity Recovery Servs., Inc. v. Williams, 962 So.2d 977 (Fla. 3d DCA 2007). Moreover, NERS failed to inform the courts that it filed claims with the Department and the CFO for the funds in dispute and was either waiting for a ruling or had withdrawn the claim.

Petitions for writs of prohibition granted; stays vacated; orders to show cause vacated.

KELLY and BLACK, JJ., Concur.

      . These former homeowners are the individual respondents Armantina Pelaez, Christino Romero, and Jasseth Blackwood. They transferred their rights to collect any surplus funds remaining after the foreclosure sale disbursements to NERS, a claimant’s representative registered with the Department.

      . The operative date for determining the relevant statute year is the date NERS initiated these proceedings and filed various motions requesting that the court release the surplus funds. Although NERS filed the initiating motions in different years (2008, 2010, and 2011), because there have been no material changes to the statutes, the 2008 versions, the year the first motion was filed, will be used.

      . The courts' orders to release are as follows: in 2D 12-3260, $2100 to NERS and $2504.73 to Armantina Pelaez; in 2D 12-3536, $1800 to NERS and $2694.30 to Christino Romero; in 2D 12-3285, $1500 to NERS and $1993.72 to Jasseth Blackwood.

      . In 2D12-3260 and 2D12-3285 the foreclosure sales took place in 2003. In 2D12-3536 the foreclosure sale took place in 2005.

      . The surpluses were not transferred to the CFO until 2008 (2D 12-3260), 2009 (2D12-3285), and 2011 (2D12-3536), with NERS filing a motion for release of the surplus funds months thereafter.

      . The House of Representatives Staff Analysis summary indicates that the bill was created to address the problems and abuses related to handling surpluses. The analysis specifically notes the following:
      It has been reported that, with the growing number of foreclosures that may result in a surplus, there is a growing number of entrepreneurs who are offering services to property owners subject to foreclosure. Some of these entrepreneurs are receiving significant profits while the property owners they contract with receive little of their equity in the property.
      Fla. H.R. Just., HB65 (2006) Staff Analysis 2 (Apr. 20, 2006).
      Section 45.033(3)(a) provides that if the surplus is transferred or assigned, the grantee/as-signee also must notify the owner that an attorney or other representative is not needed to recover surplus funds in a foreclosure. Once in the CFO’s possession as unclaimed property, section 717.135(2)(a) "[l]imit[s] the fees and costs for services [rendered by a claimant's representative] to 20 percent per unclaimed property account held by the department. ... Total fees and costs on any single account owned by a natural person residing in this country must not exceed $1,000.” To exceed the $1000 limit, the claimant’s representative must
      [ fjully disclose that the property is held by the Bureau of Unclaimed Property of the Department of Financial Services pursuant to this chapter, the mailing address of the bureau, the Internet address of the bureau, the person or name of the entity that held the property prior to the property becoming unclaimed, the date of the holder’s last contact with the owner, if known, and the approximate value of the property, and identify which of the following categories of unclaimed property the claimant’s representative is seeking to recover....
      § 717.135(2)(b).


author: PALMER, J.

text:
    Jeanette M. DINKINS, Appellant, v. Toni L. DINKINS, et al., Appellees.
    No. 5D12-1292.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.

      Lindsay Patrick Lopez, Karen E. Lewis, J. Eric Taylor, and Marie Tomassi, of Tre-nam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, for Appellant.
    Edward Downey and R. Lee McElroy IV, of Downey & Downey, P.A., Palm Beach Gardens, for Appellee.
   PALMER, J.

Jeanette M. Dinkins (widow) appeals the trial court’s order determining that a provision in her late husband’s trust is not an invalid penalty clause and that a separate trust created for her can be used to satisfy her elective share. We affirm.

The husband’s property at his death was estimated at $24-55 million, including certain assets held in trust. The widow sought a declaratory judgment, challenging the enforceability of the following provision of the husband’s living trust agreement:

Conditional Specific Bequest of Cash If my spouse, JEANETTE M. DIN-KINS, survives me, and if she or her legal representative makes a valid disclaimer of all of her interest in the QTIP Trust created under Article VII of this Trust Agreement, and also makes a valid waiver of her right ... to elect the elective share in my estate, then the Trustee shall distribute five million dollars ($5,000,000.00) to JEANETTE M. DINKINS, outright and free of trust.... My objective is to provide five million dollars ($5,000,000.00) of assets to JEANETTE M. DINKINS, in addition to ... any ... property to which JEANETTE M. DINKINS is entitled as a result of my death, except for the Elective Share.

The widow argued that this provision was an unlawful penalty clause because it would penalize her for taking her elective share by causing her to forfeit the $5 million cash bequest. The trial court rejected this argument, concluding that the provision does not penalize the widow for taking her elective share. We agree.

Florida law invalidates penalty clauses in trusts, declaring: “A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.” § 736.1108(1), Fla. Stat. (2010). The parties agree that a “no contest” clause, under which a beneficiary forfeits his or her devise for contesting a will or trust, is a penalty clause under the statute. The widow argues that the provision here is legally indistinguishable from a no contest clause, and thus invalid, because both threaten the beneficiary with forfeiture of a devise if the beneficiary takes some legal action. We reject this argument because the type of clause here, which provides an optional alternative to a statutory minimum benefit, is unlike a no contest clause due to the different purposes behind the legal right that the beneficiary must forfeit under each type of clause.

Under a no contest clause, in order to receive the devise, the beneficiary must forfeit the right to contest the instrument. But that right is essential to the integrity of the estate disposition process, because beneficiaries must be able to obtain, and courts must be able to provide, a determination of the instrument’s validity. Cf Restatement (Third) of Prop.: Wills & Don. Trans. § 8.5 cmt. b, para. 2 (2003). Thus, a beneficiary cannot be forced to choose between the right to contest an instrument and the right to take under it, and this public policy is codified in section 736.1108(1) and its probate analogue, section 732.517.

On the other hand, under a clause providing an alternative to a statutory minimum benefit, to receive the alternative devise, the beneficiary must forfeit the right to receive the statutory benefit. The purpose of statutory minimum benefits is generally to ensure that surviving family members are provided for and do not become dependent on the public treasury, regardless of the decedent’s intent. Cf. Via v. Putnam, 656 So.2d 460, 462 (Fla.1995); In re Estate of Reed, 354 So.2d 864, 865 (Fla.1978); In re Estate of Magee, 988 So.2d 1, 5-6 & n. 3 (Fla. 2d DCA 2007); 80 Am.Jur.2d Wills § 1396 (2013). This purpose is not thwarted by providing an optional alternative devise, because the beneficiary is free to reject it for any reason, including that it is less valuable than the statutory benefit. The purpose of the statutory benefit is satisfied, because the beneficiary has the ability to choose an option at least as valuable as the statutory minimum. Therefore, unlike a no contest clause, an alternative devise clause does not undermine the purpose of the legal right forfeited, and thus does not penalize the beneficiary for purposes of section 736.1108(1). Cf. Restatement (Second) of Prop.: Don. Trans. § 10.2 (1983).

We also affirm the trial court’s ruling that the separate trust created for the widow can be used to satisfy her elective share.

AFFIRMED.

SAWAYA, J., and APTE, A.S., Associate Judge, concur.

      . Statutory minimum benefits include such items as homestead, Art. X, § 4(c), Fla. Const.; elective share, §§ 732.201-.2155, Fla. Stat.; and family allowance, § 732.403.


author: LEVINE, J.

text:
    Beverly KENT, Appellant, v. Warren MARMORSTEIN, Appellee.
    No. 4D13-386.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Rehearing Denied Sept. 6, 2013.
    Richard A. Beauchamp and Elizabeth L. Pedersen of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for appellant.
    Gwendolyn S. Tuggle of Glantzlaw, Plantation, for appellee.
   LEVINE, J.

The issue presented for our review is whether the trial court erred by failing to dismiss this lawsuit for lack of personal jurisdiction. Appellee did not file an affidavit, or other sworn proof, to refute appellant’s affidavit, in which appellant denied having signed the contract which was the basis of this lawsuit. In the absence of any sworn response to appellant’s denial of having signed the contract which allegedly formed the basis for personal jurisdiction, appellee failed to meet his burden to establish personal jurisdiction. We, thus, find the trial court erred, and we reverse and remand.

Appellee Warren Marmorstein, a Florida resident, filed a complaint against appellant Beverly Kent, a resident of Michigan. Marmorstein alleged that he loaned Kent’s son $185,000, and that Kent personally guaranteed repayment. Marmorstein claimed that Kent signed a guarantee, which stated it would be “governed by the laws of the State of Florida” and that “[i]n the event of litigation, Broward County, Florida shall serve as venue.”

Kent filed a motion to dismiss for lack of jurisdiction, alleging that the complaint failed to satisfy Florida’s long-arm statute and failed to establish sufficient minimum contacts between Kent and Florida. Kent submitted an affidavit stating that she resides in Michigan, does not own property or conduct business in Florida, and, significantly, that she did not sign or review the personal guarantee. Kent stated in the affidavit that she did not have knowledge of the contents of the agreement and was not involved in the negotiations regarding that agreement. Marmorstein, in response, filed an unsworn response claiming that Kent, in fact, agreed to jurisdiction and venue in Broward County. After a non-evidentiary hearing, the trial court denied Kent’s motion to dismiss. This appeal ensues from the denial of Kent’s motion to dismiss.

The denial of a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002). According to the seminal case of Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989), in order to establish personal jurisdiction over a non-resident defendant, the plaintiff must satisfy a two-part test. First, the plaintiff must allege sufficient jurisdictional facts to satisfy section 48.193, Florida Statutes, the long-arm statute; and second, the plaintiff must demonstrate that the defendant had sufficient minimum contacts with Florida to satisfy due process requirements. Id. “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002).

Kent states that the trial court erred in denying the motion to dismiss, by finding that Marmorstein’s complaint met the requirement of the long-arm statute, and by finding sufficient minimum contacts to support jurisdiction over her. Kent also states that the trial court erred in failing to dismiss the complaint where Marmor-stein failed to respond to her sworn affidavit denying having signed or agreed to the personal guarantee.

“A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.” Venetian Salami, 554 So.2d at 502. Only where the relevant facts set forth in the defendant’s affidavit are in direct conflict with the facts in the plaintiffs affidavit, and the facts cannot be reconciled must the trial court “hold a limited evidentiary hearing in order to determine the jurisdiction issue.” Id. at 503.

In Balboa v. Assante, 958 So.2d 573 (Fla. 4th DCA 2007), the plaintiff filed suit alleging that the defendant breached an oral contract calling for payment of monies in Florida. The defendant moved to dismiss for lack of jurisdiction, contending that she did not enter into any oral contract and that the money was a gift. Both parties filed affidavits. The Balboa court found the facts of the case similar to Venetian Salami where the supreme court, noting that the affidavits were conflicting on the jurisdictional issue of the existence of a contract, ordered the trial court to conduct a limited evidentiary hearing on the issue. Following Venetian Salami, the Balboa court reversed and remanded for an evi-dentiary hearing. Balboa is instructive because like in the present case, a contract was in issue, but unlike the present case, both parties filed sworn affidavits concerning jurisdiction.

The facts of the instant case are also similar to Horowitz v. Rose Printing Co., 664 So.2d 325 (Fla. 1st DCA 1995). In Horowitz, the plaintiff filed an action for breach of contract against out-of-state defendants. The defendants moved to dismiss based on lack of minimum contacts and filed an affidavit stating that they did not operate a business in Florida, did not breach a contract in Florida, and had no requirement to perform any acts in Florida. The First District held the affidavit was legally sufficient to contest the jurisdictional allegations and that the plaintiffs failure to respond with a counter-affidavit or other sworn proof served to defeat the exercise of long-arm jurisdiction.

In the present case, Kent filed an affidavit which stated that she did not sign the guarantee and disputed agreeing to the guarantee and its conditions including venue in Broward County. Since Kent filed a legally sufficient affidavit disputing jurisdiction, based on Venetian Salami, Marmorstein failed to meet his burden “to contest the allegations of the complaint concerning jurisdiction” by filing “affidavits in support of his position.” 554 So.2d at 502. In the present case, Kent contested a key factual matter by denying that she signed the personal guarantee. Because there were “factual contentions refuting the basis for personal jurisdiction,” the burden shifted to Marmorstein to demonstrate jurisdiction. Acquadro v. Bergeron, 851 So.2d 665, 673 (Fla.2003). By filing only an unsworn response, Mar-morstein failed to meet his burden.

In summary, we reverse and remand for the trial court to dismiss the complaint because Marmorstein failed to refute Kent’s legally sufficient affidavit contesting jurisdiction.

Reversed and remanded with directions.

MAY and GERBER, JJ., concur.

      . The guarantee alleged to have been signed by Kent was not notarized.


author: MAY, J.

text:
    CITY OF BOYNTON BEACH, Appellant, v. Adam WEISS, Appellee.
    No. 4D12-1018.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.

      Lyman H. Reynolds, Jr., and George P. Roberts, Jr., of Roberts, Reynolds, Bedard & Tuzzio, PLLC, West Palm Beach, for appellant.
    Ryan J. Wynne of Slinkman & Slink-man, P.A., Jupiter, for appellee.
   MAY, J.

This case presents a complex legal knot of claims arising from injuries sustained by the plaintiff while in the custody of the City’s police department. The jury’s answers to special interrogatories tied the knot by providing consistent answers that were inconsistent with some of the plaintiffs claims for relief. The City appeals a final judgment on claims of negligent supervision and retention, failure to protect, battery, and negligent infliction of emotional distress. Having unraveled the legal knot, we affirm.

Late one evening, the plaintiffs neighbor asked for his assistance in locating his girlfriend. While the plaintiff drove around searching, he encountered law enforcement. After observing the plaintiff and conducting videotaped tests, Officer One arrested the plaintiff for driving under the influence.

The plaintiff was transported to the police station where Officer One placed him in a holding cell. Approximately forty-five minutes later, the same officer went to the cell because the plaintiff was screaming and banging on the door. Officer One provided the plaintiff with a blanket.

When the plaintiff began kicking at the cell door, Officer One returned to the plaintiffs cell. The plaintiff claimed he was doing exercises to reduce anxiety. Officer One allowed the plaintiff to call his parents to arrange for delivery of his medications. Without them, the plaintiff was edgy and “dope sick.”

The plaintiff continued his behavior. When Officer One went back to the cell a third time, the plaintiff testified that Officer One grabbed his neck, hit his head against the wall, and pushed him down on the metal seat. Officer One testified, however, that he perceived the plaintiff was about to strike him so he grabbed the plaintiff and pushed him backwards to the cell bench. The incident was recorded on surveillance video and shown to the jury. Officer One called two other officers to help calm the plaintiff. The plaintiff told the other officers that he wanted to bite Officer One to give him Hepatitis C.

Another officer arrived to transport the plaintiff and other prisoners to the jail. As the plaintiff was being escorted through the police station garage, he spotted Officer One. He began yelling and uttered a vulgarity. Officer One believed the plaintiff was pulling away from the other officer so he attempted to assist. An altercation ensued. The plaintiff began kicking Officer One so the other officer pulled him to the ground. Officer One grabbed the other officer’s taser, warned the plaintiff, and then deployed it multiple times in the drive-stun mode.

Once the plaintiff stopped resisting, the officers realized the handcuffs had fallen off. They rolled the plaintiff onto his stomach to secure them. Officer One tased the plaintiff again when he began kicking at them. Law enforcement transported the plaintiff to the hospital for a medical examination. Photos showed multiple bruises and burn marks.

At trial, the plaintiff testified that he is now afraid of law enforcement, sleeps less than before, and has neck problems. The plaintiff admitted to having received treatment for emotional, psychotic and physical conditions, and drug dependency both before and after this incident.

The City’s police chief testified that pri- or to this incident, he had not received any complaints against Officer One that would have suggested he should have been fired. In fact, Officer One had been named “Officer of the Month” on two occasions. One month prior to this incident, however, Officer One’s evaluation indicated that he needed improvement in controlling conflict.

The City moved for summary judgment on multiple grounds. Relevant to the issues on appeal, the City argued it was immune for officers’ actions that were outside the course and scope of employment, and the claim for negligent retention and supervision could not legally stand because the complaint alleged only that the officers’ actions were within the course and scope of their employment. The City also argued that it could not be liable for negligent infliction of emotional distress because the officers’ actions were outside the course and scope of their employment and were malicious in nature. The trial court granted the motion in part, but denied it as it relates to the issues on appeal.

Four claims remained at the time of trial, which involved the City’s liability for:

(1) the negligent retention and supervision of Officer One;
(2) negligently failing to protect the plaintiff;
(3) negligently inflicting emotional distress on the plaintiff; and,
(4) battery committed by Officer One.

At the close of the plaintiffs case, the City moved for directed verdict, and renewed its motion at the close of the defense case. The trial court denied both motions.

According to the submitted verdict form, the jury found that Officer One committed a battery, used excessive force in both the holding cell and taser incidents, the actions were within the course and scope of his employment, and Officer One did not act in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard.

The jury found the City negligent: (1) in retaining and supervising Officer One; (2) in negligently failing to protect the plaintiff; (3) for the battery of the plaintiff by Officer One; and (4) for inflicting emotional distress. The jury found no negligence on the part of the plaintiff. The jury awarded $29,152.97 in damages for the holding cell incident and $150,000 in damages for the transport-area incident. The damages, while apportioned for each incident, were not separated for each claim for relief.

The City moved for a new trial, a judgment notwithstanding the verdict, and a remittitur. The trial court denied the motions. From the denial of these motions and the underlying judgment, the City now appeals.

The City argues: (1) it was entitled to a directed verdict or a new trial on the negligent retention/supervision claim because the jury found that Officer One acted within the course and scope of his employment; (2) the City has sovereign immunity; (3) Florida does not recognize a negligent “failure to protect” claim unless it involves exposure of the plaintiff to risk of harm by a third person; and (4) the negligent infliction of emotional distress claim is barred by sovereign immunity because it resulted from a battery, which is an intentional tort, and therefore outside the course and scope of Officer One’s employment.

The plaintiff does not address the sovereign immunity issue, but responds there was sufficient evidence to support the negligence claims. The plaintiff also argues that a special relationship was created the moment the plaintiff was taken into custody thereby creating a duty of care. Lastly, the plaintiff argues the City’s negligence in retaining and supervising Officer One and in “failing to protect” the plaintiff was sufficient to support a claim for negligent infliction of emotional distress.

The standard of review on a motion for new trial is abuse of discretion. See Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959).

This appeal turns, in part, on the jury’s ultimate decision that Officer One’s actions occurred within the course and scope of his employment. With that factual issue decided, we now address each of the four claims.

First, the City is absolutely correct that because a negligent supervision and retention claim involves the direct negligence of the City, it requires that the actions of the employee be outside the course and scope of the employee’s employment. “By its very nature, an action for negligent retention involves acts which are not within the course and scope of employment....” Watson v. City of Hialeah, 552 So.2d 1146, 1148 (Fla. 3d DCA 1989) (emphasis in original). See also Belizaire v. City of Miami, 2013 WL 1651371 (S.D.Fla.2013) (discussing Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986)).

Starting with the plaintiffs allegations in the complaint, continuing to proof at trial, and ending with the jury’s finding of fact, Officer One acted within the course and scope of his employment at all times. Because of this, the negligent retention/supervision claim must fail by operation of law. See id. The trial court erred in denying the City’s motion for new trial on this claim. The City, however, cannot show it was prejudiced by this ruling in light of the “two-issue rule.”

“[W]here there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.” Zimmer, Inc. v. Birnbaum, 758 So.2d 714, 715 (Fla. 4th DCA 2000) (quoting Whitman v. Castlewood Int’l Corp., 383 So.2d 618, 619 (Fla.1980)). “The rule is based on the principle that reversal is improper where no error is found as to one of the issues that can independently support the jury’s verdict.” Barth v. Khubani, 748 So.2d 260, 261 (Fla.1999).

When a general verdict for the plaintiff is on review, the rule is applied by focusing on the causes of action, such that an appellate claim of error raised by the defendant as to one cause of action cannot be the basis for reversal where two or more theories of liability (or causes of action) were presented to the jury.

Id. Here, the jury was asked to determine liability on four separate negligence claims: one for direct negligence against the City for retaining and supervising Officer One, and three others for the City’s vicarious liability for Officer One’s actions. Yet, damages were determined only once and not apportioned to any particular claim. We cannot discern, therefore, whether the damages were for the negligent retention and supervision claim or one of the other alternative claims. Thus, the two-issue rule precludes a reversal.

An employer may be liable under the doctrine of respondeat superior for an employee’s acts that are committed within the course and scope of employment. Garcia, 492 So.2d at 438. This leaves for our consideration the plaintiffs claims for battery, negligent infliction of emotional distress, and failure to protect.

Our sovereign immunity statute provides:

The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed ... in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

§ 768.28(9)(a), Fla. Stat. (2007). While battery is an intentional tort, the City may be held liable for an employee’s intentional act(s) as long as the employee is acting within the course and scope of his employment and the act or omission is not committed in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of the plaintiffs rights. See City of Miami v. Simpson, 172 So.2d 435 (Fla.1965) (discussing city’s liability for intentional torts committed by police officers acting within the scope of their employment).

Here, the jury found that Officer One acted within the course and scope of his employment when he committed the battery, and the battery was not done in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of the plaintiffs rights. Section 768.28, therefore, does not provide immunity for the City in light of these findings.

This brings us to the negligent infliction of emotional distress claim.

In Florida, the prerequisites for recovery for negligent infliction of emotional distress differ depending on whether the plaintiff has or has not suffered a physical impact from an external force. If the plaintiff has suffered an impact, Florida courts permit recovery for emotional distress stemming from the incident during which the impact occurred, and not merely the impact itself.

Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 526 (Fla. 3d DCA 1985) (cited with approval in Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850 (Fla.2007)). Here, the jury found that the plaintiff had been battered, which by definition requires a touching or impact. Recovery for negligent infliction of emotional distress is therefore permitted.

For these reasons we affirm the judgment.

Affirmed.

TAYLOR and CONNER, JJ., concur.

      . The complaint contained allegations against three officers, but, at the time of trial, the City’s liability was based upon the actions of Officer One.

      . The defense proffered the police chief's testimony that Officer One's actions in the holding cell and transport area were not appropriate and violated policy, and he was fired as a result of this incident. However, the trial court did not allow this testimony to be admitted.

      . The verdict form was separated between the holding cell and taser incidents. In each instance, the jury was asked whether the action was within the course and scope of Officer One’s employment, and whether the officer’s actions were malicious or in bad faith. In each incident, the jury found Officer One’s actions were within the course and scope of his employment and not done with malicious purpose or in bad faith.

      . This rule also vitiates the City’s argument that a new trial was warranted because the verdict was inconsistent. See Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990 (Fla. 4th DCA 2004).

      . We find it unnecessary to address the failure to protect claim for the same reason the error on the negligent retention and supervision claim does not warrant a reversal — the two-issue rule.


author: PER CURIAM.

text:
    Keith KOPPELMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4123.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 2013.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

DAMOORGIAN, C.J., MAY and GERBER, JJ., concur.


author: KELLY, Judge.

text:
    Francisco VILLANUEVA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1224.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robert J. Krauss, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

We affirm the order revoking Francisco Villanueva, Jr.’s probation and his sentences for attempted burglary, burglary of an unoccupied dwelling, and grand theft from a dwelling, but we remand for the entry of a corrected written sentence re-fleeting Villanueva’s status as a youthful offender

Affirmed; remanded with instructions.

WALLACE and CRENSHAW, JJ., Concur.