text:
    Lynne GARCELL, Appellant, v. Elias GARCELL, Appellee.
    No. 4D12-3528.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.
    Jessica VanValkenburgh and Ejola Cook of The Ticktin Law Group, P.A., Deerfield Beach, for appellant.
    Hale Schantz of Schantz and Schantz, P.A., Weston, for appellee.
   PER CURIAM.

Lynne Garcell (“appellant”) appeals the trial court’s final order on dissolution of marriage and the denials of her subsequent motions to vacate the final judgment. At the conclusion of the hearing, before the entry of the final order and judgment, the trial judge granted appellant an additional forty-five days to conduct additional discovery, and instructed the parties to contact him when this discovery was completed so he could schedule another hearing and decide the pending issues relating to alimony and child support. However, twenty-seven days after this hearing and before appellant had completed her discovery, the trial court issued its Final Order on Dissolution of Marriage and Other Relief (“final order”) without an explanation as to why it was being issued before the expiration of the forty-five day extension. Appellant contends the court improperly entered the final order while discovery was still pending. For the reasons stated below, we agree with appellant and reverse.

Here, appellant was never given a full opportunity to present her case to the court prior to the entry of the final order. Appellant brought this issue to the court’s attention, and was assured that she would be given a chance to present her case. As such, by entering the final order before appellant had an opportunity to be heard, the trial court deprived her of the due process guaranteed by the Florida Constitution. See Art. I, § 9, Fla. Const. This court has held in the past that “‘[t]he denial of due process rights, including the opportunity to be heard, to testify, and to present evidence, is fundamental error.’” Kilnapp v. Kilnapp, 140 So.3d 1051, 1053 (Fla. 4th DCA 2014) (quoting Weiser v. Weiser, 132 So.3d 309, 311 (Fla. 4th DCA 2014)); see also Julia v. Julia, 146 So.3d 516, 520 (Fla. 4th DCA 2014) (stating that “‘[d]ue process requires that a party be given the opportunity to be heard and to testify and call witnesses on the party’s behalf ... and the denial of this right is fundamental error’ ” (quoting Minakan v. Husted, 27 So.3d 695, 698 (Fla. 4th DCA 2010)).

Rendering the final judgment in this case while court-authorized discovery was still pending was an abuse of discretion. With the trial court’s express permission, appellant was in the process of obtaining additional discovery pertaining to appel-lee’s income and ability to pay when the final order was handed down. Therefore, the trial court reached its final decision and made its findings of fact without allowing appellant to utilize the time it previously granted to assemble and present the applicable facts for its consideration. See Payne v. Cudjoe Gardens Prop. Owners Ass’n, 837 So.2d 458, 461 (Fla. 3d DCA 2002) (stating in regards to summary judgment that “[wjhere discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist”).

Since appellant was unable to complete the discovery process and was not permitted to present her case to the trial court, it can hardly be said that the trial court’s award of alimony and child support was based upon a meaningful review of all of the competent, substantial evidence. Steele v. Love, 143 So.3d 1020, 1022 (Fla. 4th DCA 2014) (stating that a “court’s determination [of child support] must be supported by competent, substantial evidence”); see also Vitro v. Vitro, 122 So.3d 382, 387 (Fla. 4th DCA 2012) (stating that “ ‘where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded, the appellate court will reverse the award’ ” (quoting Wabeke v. Wabeke, 31 So.3d 793, 795 (Fla. 2d DCA 2009)). As a result, we reverse the trial court’s final order and remand this case for rehearing on both of these issues.

Reversed and Remanded.

GERBER, LEVINE and KLINGENSMITH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Renee HILL, as Personal Representative of the Estate of Sharon Bronowicz, Deceased, Appellant/Cross-Appellee, v. NEW HORIZONS OF THE TREASURE COAST, INC., Appellee/Cross-Appellant.
    No. 4D12-4309.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.

      Guy Bennett Rubin and Gladys C. La-forge of Rubin & Rubin, Stuart, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for appellant/cross appellee.
    Addison J. Meyers of Mintzer, Sarowitz, Zeris, Ledva & Meyers, Miami, and Kimberly L. Boldt of Boldt Law Firm, Boca Raton, for appellee/cross appellant.
   PER CURIAM.

On the plaintiffs appeal, we affirm the trial court’s order granting the defendant’s motion for new trial. See, e.g., Intramed, Inc. v. Guider, 93 So.3d 503, 507 (Fla. 4th DCA 2012) (“The closing argument shifted the focus of the case from compensating the plaintiff to punishing the defendant.... The purpose of damages here was to compensate, not to make the defendant care, ‘take responsibility,’ or say it was sorry. Counsel’s arguments improperly suggested that the defendant should be punished for contesting damages at trial and that its defense of the claim in court was improper. The closing argument was designed to inflame the emotions of the jury rather than prompt a logical analysis of the evidence in light of the applicable law.”) (internal citations and quotation marks omitted).

On the defendant’s cross-appeal, we affirm without discussion the trial court’s order denying the defendant’s motion for directed verdict. We also affirm without discussion the trial court’s orders admitting the evidence which became the subject of the defendant’s motion for directed verdict.

Because we affirm the trial court’s order granting the defendant’s motion for new trial, we do not review in this appeal the trial court’s orders granting the defendant’s motion for partial summary judgment, denying the plaintiffs motion for partial summary judgment, and granting the defendant’s motion for remittitur. All of those orders reflect the trial court’s determination that the non-economic damages cap contained in section 394.9085(1)(b), Florida Statutes (2010), applied to all three counts which the plaintiff pled in this case. As the parties properly conceded at oral argument, our review of that determination will not become ripe unless the plaintiff, at the new trial, obtains a jury verdict which exceeds the non-economic damages cap contained in section 394.9085(1)(b).

Affirmed in part and remanded for new trial.

GERBER, LEVINE and' KLINGENSMITH, JJ., concur.


author: DAMOORGIAN, C.J.

text:
    A.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-637.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

A.H., a minor, appeals a juvenile disposition order adjudicating him delinquent for trespass of a conveyance and sentencing him to community service. A.H. argues that the trial court erroneously denied his motion for judgment of dismissal because the state failed to introduce sufficient evidence establishing a prima facie case of trespass of a conveyance. We agree and reverse.

By way of background, A.H. was charged with grand theft auto and resisting arrest without violence after A.H., who was riding as a passenger in a stolen vehicle, allegedly fled when police pulled over the vehicle. The matter proceeded to a bench trial where the state announced that it would proceed on the lesser included count of trespass of a conveyance rather than grand theft. The state presented the following evidence at trial.

A.H.’s co-defendant, also a passenger in the vehicle, testified that the driver of the vehicle told him that the vehicle was a rental. He also testified that he did not notice any signs of theft-type damage to the vehicle (e.g., damage to the vehicle’s ignition column or locks/windows), which was corroborated by photos of the vehicle at the time it was recovered.

The officer who arrested A.H.’s co-defendant testified that on the date of the incident, he encountered the vehicle, ran its tag, and confirmed that it was reported stolen. As he and his partner approached the vehicle, its occupants jumped out and began to run. He observed A.H. fleeing after his partner commanded A.H. to stop.

After the state rested, A.H. moved for a judgment of dismissal, arguing that the state failed to submit any evidence that A.H. knew or should have known the vehicle was stolen. The court denied A.H.’s motion.

A.H. testified in his own defense. He maintained that he did not flee and complied with the officer’s commands. A.H. also maintained that he did not know the car was stolen as the driver told him it was his girlfriend’s car.

Following his testimony, A.H. renewed his motion for judgment of dismissal, which the trial court again denied. A.H. was adjudicated delinquent on the trespass of a conveyance charge, but acquitted of the resisting charge. In rendering its decision, the trial court reasoned that “the facts of the case were as such that ... he should have known the car was stolen.” This appeal now follows.

“Our review of the trial court’s denial of the motion for judgment of dismissal is de novo.” E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003). “The evidence must be viewed in the light most favorable to the State, and if a rational trier of fact could find that the elements of the crime have been established beyond a reasonable doubt, sufficient evidence exists to sustain the conviction.” Id. “If the State did not present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper.” Id.

To support A.H.’s conviction for trespass of a conveyance, the state had to prove that A.H. “willfully entered or remained in a conveyance without being authorized, licensed or invited by the owner or a person authorized to give permission.” R.M. v. State, 763 So.2d 1060, 1061 (Fla. 4th DCA 1999); see also § 810.08, Fla. Stat. (2012). In the context of an alleged trespasser riding as a passenger in a stolen vehicle, the “willful” element requires the state to establish that the passenger knew or should have known that the vehicle was stolen. R.M., 763 So.2d at 1062; E.A.B., 851 So.2d at 310. Evidence that a passenger in a stolen vehicle fled upon interaction with law enforcement, standing alone, is not enough to meet this burden. R.M., 763 So.2d at 1062; E.A.B., 851 So.2d at 310.

The Second District’s decision in E.A.B. is instructive. There, the court reversed a minor’s adjudication for trespass of a conveyance for riding as a passenger in a stolen vehicle. 851 So.2d at 310. Although the minor fled from law enforcement when it attempted to stop the vehicle, the minor testified that he did not know the vehicle was stolen as the person driving the car told the minor it was his car. Id. Absent any other evidence regarding the minor’s knowledge that the vehicle was stolen, the court reversed. Id.

Here, there simply was no evidence tending to establish that A.H. knew or should have known the subject vehicle was stolen other than the fact that he fled when approached by law enforcement. There was no physical damage to the car indicating that it was stolen. See P.W. v. State, 730 So.2d 422, 423 (Fla. 5th DCA 1999) (evidence not sufficient to establish minor who was passenger in stolen car had knowledge car was stolen where minor claimed he did not know and there was no damage to the car’s ignition, stereo, or windows). Additionally, A.H. testified that he did not know the car was stolen, and so did his co-defendant. In sum, the only evidence tending to establish that A.H. knew the car was stolen was the officer’s testimony that A.H. fled after being commanded to stop. While evidence of A.H.’s flight was admissible and relevant to establish guilt, this evidence alone was insufficient to establish the required element of the charge — that A.H. knew the vehicle was stolen. E.A.B., 851 So.2d at 310.

Reversed.

CIKLIN and FORST, JJ., concur.


text:
    Troy G. CAPARRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2431.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.
    Troy G. Caparro, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Singletary v. Dunlap, 701 So.2d 589 (Fla. 2d DCA 1997); Fla. Admin. Code R. 33-601.101(5)-(6).


author: ROTHENBERG, J.

text:
    Weder VILSAINT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-583.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.
    Weder Vilsaint, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The defendant, Weder Vilsaint, appeals the trial court’s order summarily denying his rule 3.850 motion for postconviction relief. We affirm and commend the trial court for its thorough, articulate, and well-reasoned order.

Affirmed.


text:
    Mark PENNINGTON, Appellant, v. OCWEN LOAN SERVICING, LLC, Appellees.
    No. 1D13-3072.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2014.
    George Gingo and James E. Orth, Jr. of Gingo & Orth, P.A., Titusville, for Appellant.
    Curtis A. Wilson of McCalla Raymer, LLC, Tampa for Ocwen Loan Servicing, LLC, David D. Rottmann, Jacksonville, for Windsor Falls Condominium Association, Inc., Colleen Colton of Shapiro & Fishman, Boca Raton, Colin Paul-Anthony Black-wood of McGlinchey St, for Appellees.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We grant Appellant’s Motion for Clarification, withdraw our previous opinion filed on September 16, 2014, and substitute the following opinion in its place.

Appellant, Mark Pennington (“Pennington”), appeals the final judgment of foreclosure against him and in favor of Appel-lee, Ocwen Loan Servicing, LLP (“Ocwen”). Because Ocwen failed to establish its standing to foreclose, or to refute Pennington’s affirmative defense contesting standing, we reverse and remand for the trial court to enter judgment in favor of Pennington.

In April 2007, Pennington executed a promissory note and mortgage on his condominium. The note was “payable to order” under section 673.1091, Florida Statutes, because it specifically named E.Q. Financial, Inc., the lender, as payee. § 673.1091, Fla. Stat. (“A promise or order that is payable to order is payable to the identified person”). Mortgage Electronic Registrations Systems, Inc. (MERS) acted as nominee on behalf of E.Q. Financial. The note did not have any indorsements, but attached to the note was an allonge, which made the note payable to Countrywide Home Loans, Inc. The allonge was a special indorsement because it named a specific payee: Countrywide. See § 673.2051(1), Fla. Stat. As such, negotiation of the note required both possession and an indorsement by Countrywide. Id. (A specially indorsed negotiable instrument “becomes payable to the identical person and may be negotiated only by the indorsement of that person.”).

In January 2009, MERS purported to transfer the mortgage and note to Ocwen. Countywide was not involved. When Pennington failed to make payments, Ocwen filed a May 4, 2009 complaint, initiating foreclosure proceedings against him. After the filing of the complaint, Ocwen assigned the note and mortgage to Federal Home Loan Mortgage Corporation (Freddie Mac), who eventually assigned it back to Ocwen. This final re-assignment back to Ocwen failed to transfer the note.

Throughout his pleadings, as well as at trial, Pennington asserted the affirmative defense of lack of standing, arguing that Ocwen was not entitled to enforce the note. Ultimately, however, the trial court entered the instant order in favor of Ocwen.

We review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo. Lacombe v. Deutsche Bank Nat’l Trust Co., 149 So.3d 152, (Fla. 1st DCA Oct. 14, 2014). A plaintiff who is not the original lender may establish standing to foreclose by submitting a note with a blank or special indorsement, an assignment of the note, or an affidavit otherwise proving his status as holder of the note. Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013); see also Mazine v. M & I Bank, 67 So.3d 1129, 1132 (Fla. 1st DCA 2011) (“To establish standing to foreclose, it must be demonstrated that the plaintiff holds the note and mortgage in question.”). Standing must be established at the time of the filing of the foreclosure action. Focht, 124 So.3d at 310. Additionally, a bank must also have standing at the time final judgment is entered. See Boumarate v. HSBC Bank USA, N.A., 109 So.3d 1239, 1239 (Fla. 5th DCA 2013); Beaumont v. Bank of New York Mellon, 81 So.3d 553, 555 (Fla. 5th DCA 2012).

In this case, Ocwen failed to demonstrate it had standing to enforce the note. Its exhibits did not qualify as an indorsement from Countrywide to Ocwen or as an assignment from Countrywide to Ocwen (while Ocwen submitted a copy of a letter it had written to Pennington informing him of an assignment from Countrywide to Ocwen, the actual assignment itself was never produced). And while Ocwen filed an affidavit of lost note alleging it was the lawful owner of the note so as to establish standing at the time the lawsuit was filed, see McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 174 (Fla. 4th DCA 2012) (“[I[f the affidavit itself is executed before the lawsuit is filed, the allegation that the plaintiff is the ‘owner and holder of the note’ is sufficient to establish the plaintiffs standing at the inception of the lawsuit[]”), that affidavit was a nullity since negotiation of the note required not only possession, but an in-dorsement from Countywide to Ocwen. See § 678.2051(1), Fla. Stat. But such was lacking here. Likewise, the record contains no proof by Ocwen that it had standing under any of the means established by section 673.3011, Florida Statutes. See Mazine, 67 So.3d at 1130. Because Ocwen 'failed to establish standing either at the time of filing the suit or at the time of judgment, the trial court should have granted Pennington’s motion for involuntary dismissal for lack of standing.

While this issue is dispositive, we also note that Ocwen’s problems were further compounded when the final assignment from Freddie Mac to Ocwen was only for the mortgage; Ocwen’s own records custodian admitted this below. Notwithstanding the lack of evidence to prove the Countrywide assignment, even if Ocwen had standing at the commencement of the suit, it would have lost such standing when it was no longer legally entitled to own or enforce the note. See Lindsey v. Wells Fargo Bank, N.A., 139 So.3d 903 (Fla. 1st DCA 2013).

Accordingly, we REVERSE the judgment below, and direct the trial court to enter final judgment for Pennington.

REVERSED.

THOMAS, ROWE, and MAKAR, JJ., concur.


author: WOLF, J.

text:
    Latoyia S. Bailey GIDDINS, Wife, Appellant, v. Jabriel K. GIDDINS, Husband, Appellee.
    No. 1D14-0653.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2014.

      Gena D. Wagner and Patricia B. Fournier of Fournier, Norris & Wagner, PL, Tallahassee, for Appellant.
    Carolyn D. Cummings of Carolyn Cummings, P.A., Tallahassee, for Appellee.
   WOLF, J.

Appellant, the former wife, challenges the trial court’s final order of dissolution of marriage in which the court adopted and incorporated the parties’ marital settlement agreement. Appellant argues the court erred in entering the final order over her objection and pending motion to set aside the marital settlement agreement, without first giving her the opportunity to be heard and present evidence. We agree. The trial court should have either permitted appellant to present argument and evidence contesting the adoption of the marital settlement agreement during the hearing on the former husband’s petition for dissolution of marriage, or alternatively, the court should have deferred entering a final judgment until a hearing on appellant’s motion to set aside the marital settlement agreement had been held. ‘“Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf, ... and the denial of this right is fundamental error.’ ” Slotnick v. Slotnick, 891 So.2d 1086, 1088 (Fla. 4th DCA 2004) (quoting Pettry v. Pettry, 706 So.2d 107, 108 (Fla. 5th DCA 1998)). Thus, we reverse the final order of dissolution of marriage and remand for further proceedings. Because we reverse, we find it unnecessary to address the second issue raised by appellant.

REVERSED and REMANDED.

ROWE and OSTERHAUS, JJ„ concur.


author: WALLIS, J. ORFINGER, J.,

text:
    WILSHIRE INSURANCE COMPANY, Appellant, v. POINCIANA GROCER, INC., et al., Appellees.
    No. 5D13-3317.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.

      Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, Ft. Lauderdale, for Appellant.
    George E. Carr of The Law Offices of George E. Carr, P.A., Orlando; A. Clifton Black, Kissimmee, for Appellee, Poinciana Grocer, Inc.
   WALLIS, J.

Wilshire Insurance Company (“Appellant”) appeals the trial court’s order, which denied Appellant’s motion for summary judgment and held Appellant had a duty to defend Poinciana Grocer, Inc. (“Poinciana”) in an underlying negligence action. Charles Martin (“Martin”) brought the underlying action, alleging he was stabbed on Poinciana’s premises by a patron, John F. Henderson (“Henderson”). On appeal, Appellant argues the insurance policy contains a clear exclusion from coverage for claims arising from assault and battery. We agree.

In his complaint, Martin alleged he was legally on Poinciana’s property collecting trash through his employment with Florida Commercial Care when he was “attacked and ’ brutally stabbed” by Henderson as he left a convenience store after purchasing a large amount of alcoholic beverages. Martin sought relief from Poinciana, alleging it negligently failed to maintain the premises in a safe condition, failed to warn, and failed to prevent an attack with adequate security or safety.

Poinciana’s insurance policy excludes claims arising from an underlying battery claim, as follows:

This insurance does not apply to:

A. Any claims arising out of Assault and/or Battery or;'
B. Any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of you, your employees or volunteers, patrons or any other persons, or
C. Claims, accusations or charges of negligent hiring, placement, training or supervision arising from any of the foregoing are not covered.
We shall have no obligation to defend you, or any other insured, for any such loss, claim or suit.

“[T]he standard of review on summary judgment orders is de novo.” Fla. Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003) (citing Fla. Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla.2001)). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Campbell v. Household Life Ins. Co., 77 So.3d 772, 775 (Fla. 5th DCA 2011) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)).

“Insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties, and ambiguities are interpreted liberally in favor of the insured and strictly against the insurer who prepared the policy.” McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 694-95 (Fla. 4th DCA 1999) (quoting Westmoreland v. Lumbermens Mut. Cas. Co., 704 So.2d 176, 179 (Fla. 4th DCA 1997)). “The general rule is that an insurance company’s duty to defend an insured is determined solely from the allegations of the complaint against the insured.” W. Orange Lumber Co. v. Ind. Lumbermens Mut. Ins. Co., 898 So.2d 1147, 1148 (Fla. 5th DCA 2005) (citing Nat’l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977); Ins. Co. of N. Am. v. Whatley, 558 So.2d 120 (Fla. 5th DCA 1990)). “[I]f the pleadings show the applicability of a policy exclusion, the insurer has no duty to defend.” Keen v. Florida Sheriffs’ Self-Ins., 962 So.2d 1021, 1024 (Fla. 4th DCA 2007) (citing Reliance Ins. Co. v. Royal Motorcar Corp., 534 So.2d 922, 923 (Fla. 4th DCA 1988)).

Here, the policy expressly .provides that Appellant does not have a duty to defend when the underlying claim is for assault and battery by a patron. See Britamco Underwriter’s, Inc. v. Zuma Corp., 576 So.2d 965, 965 (Fla. 5th DCA 1991) (holding an exclusion for assault, battery, and negligent hiring precluded coverage for a bar under its insurance policy). Accordingly, because the contract expressly provides claims arising out of battery, including negligence, are not covered, we reverse the order finding a duty to defend and remand for the trial court to énter summary judgment for Appellant.

REVERSED and REMANDED.

LAMBERT, J., concurs.

ORFINGER, J., concurs and concurs • specially with opinion.

ORFINGER, J.,

concurring specially.

I concur. The assault or battery exclusion provides:

This insurance does not apply to:

A. Any claims arising out of Assault and/or Battery or;
B. Any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of you, your employees or volunteers, patrons or any other persons, or
C. Claims, accusations or charges of negligent hiring, placement, training or supervision arising from any of the foregoing are not covered.
We shall have no obligation to defend you, or any other insured, for any such loss, claim or suit.

Under Florida law⅝ an insured bears the burden of proving that a claim is covered within an insurance policy. LaFarge Corp. v. Travelers Indem. Co., 118 F.3d 1511, 1516 (11th Cir.1997). The burden of proving an'exclusion to coverage is, however, on the insurer. Id.

As the duty to defend is broader than the duty to indemnify, if a court determines that there is no duty to defend, as a matter of law, there cannot be a duty to indemnify. WellCare of Fla., Inc. v. Am. Int’l Specialty Lines Ins. Co., 16 So.3d 904, 906 (Fla. 2d DCA 2009) (“[T]he duty to indemnify is narrower than the duty to defend and thus cannot exist if there is no duty to defend.” (citing Fun Spree Vacations, Inc. v. Orion Ins. Co., 659 So.2d 419, 421 (Fla. 3d DCA 1995); Aetna Ins. Co. v. Borrell-Bigby Elec. Co., 541 So.2d 189, 141 (Fla. 2d DCA 1989))). “An insurer has no duty to defend a lawsuit where the underlying complaint does not allege facts that would bring the complaint within the coverage of the policy.” Auto-Owners Ins. Co. v. Marvin Dev. Corp., 805 So.2d 888, 891 (Fla. 2d DCA 2001).

While Martin maintains that it was the negligence of Poinciana, and not the intentional acts of Henderson that brought about the resultant harm, that argument is unconvincing. A duty to defend cannot be triggered merely by labeling an intentional act “negligent.” When the facts alleged establish intentional conduct, but the claim asserts negligence, the negligence label should be disregarded. See, e.g., Cabezas v. Fla. Farra Bureau Cas. Ins. Co., 830 So.2d 156 (Fla. 3d DCA 2002); Aetna Cas. & Sur. Co. v. Miller, 550 So.2d 29 (Fla. 3d DCA 1989).

The phrase “arising out of,” found in the exclusion, is broader in meaning than the term “caused by” and means “ ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to,’ or ‘having a connection with.’ ” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532-33 (Fla.2005). Florida courts have long construed assault and battery exclusions to preclude acts of negligence arising from an assault or battery. See, e.g., Century Sur. Co. v. Seductions, LLC, 609 F.Supp.2d 1273, 1277 (S.D.Fla.2009) (citing Taurus Holdings, 913 So.2d at 539-40); Perrine Food Retailers, Inc. v. Odyssey Re (London) Ltd., 721 So.2d 402, 404 (Fla. 3d DCA 1998) (holding that negligence claims against store owner for failing to maintain premises or provide adequate security arose out of assault and battery where patron was robbed at knifepoint and stabbed, ultimately triggering policy’s assault and battery exclusion); Miami Beach Entm’t, Inc. v. First Oak Brook Corp. Syndicate, 682 So.2d 161, 162 (Fla. 3d DCA 1996) (holding summary judgment based upon policy exclusion proper where claim based on negligence arose out of assault and battery). Martin’s injuries arose from a battery by a patron of Poinciana, despite the pleading of negligence in the complaint in the underlying action. As a consequence, the exclusion controls.

      . We decline to address Poinciana's argument that other provisions of the insurance contract create an ambiguity because it is without merit.


author: KELLY, Judge.

text:
    Matthew Lane PHILLIPS, Appellant, v. Nofar PHILLIPS, Appellee.
    No. 2D13-1233.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2014.

      Annette Marie Lang and Robert E. Bia-sotti of Biasotti and Associates, St. Peters-burg, for Appellant.
    No appearance for Appellee.
   KELLY, Judge.

Matthew Lane Phillips appeals an injunction for protection against domestic violence entered in favor of his estranged wife, Nofar Phillips. He argues that the trial court abused its discretion by entering the injunction because Mrs. Phillips failed to establish that she had reasonable cause to believe she was in imminent danger of becoming the victim of domestic violence. We agree and reverse.

In order for the trial court to issue an injunction for protection against domestic violence, the party seeking the injunction must establish that he or she has an objectively reasonable fear that he or she is in “imminent danger of becoming the victim of any act of domestic violence.” § 741.30(1)(a), Fla. Stat. (2012); see Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007); Moore v. Hall, 786 So.2d 1264, 1266 (Fla. 2d DCA 2001). In determining whether the victim’s fear is reasonable, “the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (citing Gustafson v. Mauek, 743 So.2d 614, 616 (Fla. 1st DCA 1999)).

Here, the evidence was legally insufficient to meet the statutory requirements for issuance of a domestic violence injunction. Despite the allegations in her petition, Mrs. Phillips acknowledged in her testimony at the injunction hearing that there had been no violence or threats of violence from Mr. Phillips since the parties’ separation four months before she filed the domestic violence petition' Because Mrs. Phillips failed to establish that she was the victim of domestic violence or that she had a reasonable fear of becoming the victim of domestic violence, we reverse. See Oettmeier, 960 So.2d at 905; Moore, 786 So.2d at 1267.

Although the injunction has expired, we reverse and remand with instructions to vacate the injunction because of the unintended collateral consequences that may result from such a judgment. See Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005); Stone v. Stone, 128 So.3d 239, 242 (Fla. 4th DCA 2013).

Reversed and remanded.

VILLANTI and LaROSE, JJ., concur.


text:
    Matthew Lane PHILLIPS, Appellant, v. Rosalea Dawn HUGHES, Appellee.
    No. 2D13-1238.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2014.
    Annette Marie Lang and Robert E. Bia-sotti of Biasotti and Associates, St. Peters-burg, for Appellant.
    Rosalea Dawn Hughes, pro se.
   KELLY, Judge.

Matthew Lane Phillips appeals an injunction for protection against domestic violence entered against him based upon the petition of Rosalea Dawn Hughes, the mother of his child. Because the trial court’s finding that Ms. Hughes had reasonable cause to believe she was in imminent danger of becoming the victim of domestic violence was not supported by competent, substantial evidence, we reverse.

In order for the trial court to issue an injunction for protection against domestic violence, the party seeking the injunction must establish that he or she has an objectively reasonable fear that he or she is in “imminent danger of becoming the victim of any act of domestic violence.” § 741.30(1)(a), Fla. Stat. (2012); see Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007); Moore v. Hall, 786 So.2d 1264, 1266 (Fla. 2d DCA 2001). In determining whether the victim’s fear is reasonable,, “the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (citing Gustafson v. Mauck, 748 So.2d 614, 616 (Fla. 1st DCA 1999)).

Here, the parties have a contentious past relationship with a history of litigation over custody and visitation issues. There has been no actual violence between the parties and nothing in the record to show that domestic violence was imminent. Because we conclude Ms. Hughes failed to present sufficient evidence to establish the objective reasonableness of her fear that the danger of violence at the hands of Mr. Phillips was “imminent,” we reverse and remand with directions that the trial court vacate the injunction. See Oettmeier, 960 So.2d at 905; Moore, 786 So.2d at 1267.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.


author: MORRIS, Judge.

text:
    Darriohn Myvar PRYOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3753.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2014.
    Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   MORRIS, Judge.

Darriohn Pryor appeals the revocation of his probation for possession of cocaine and his resulting prison sentence. We remand for the trial court to strike the violation of condition 43 from the order of revocation because the State offered only hearsay evidence, through the testimony of the probation officer, to support that violation. See Beecham v. State, 652 So.2d 1275, 1275 (Fla. 3d DCA 1995). However, we affirm the revocation of Pryor’s probation because it is clear that the trial court would have revoked his probation based on the other two violations. See Bernier v. State, 951 So.2d 21, 22 (Fla. 2d DCA 2007).

Affirmed; remanded.

KHOUZAM and CRENSHAW, JJ., concur.


author: MAY, J.

text:
    Leaustin BARNETT, Appellant, v. STATE Of Florida, Appellee.
    No. 4D12-2533.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for first degree murder with a firearm and robbery with a firearm. He argues the trial court committed fundamental error in allowing Williams rule evidence to become a feature of the trial, particularly in the State’s closing argument. We disagree and affirm.

The information charged the defendant with first degree murder with a firearm while wearing a mask and robbery with a firearm. The State filed a notice of intent to introduce Williams rule evidence. The notice advised that the State intended to introduce evidence of a subsequent shooting in which the defendant used the same firearm. Shell casings found at the subsequent shooting matched shell casings found at the homicide location, and also matched live ammunition for the murder weapon found near the defendant’s home.

The State argued the Williams rule evidence was being offered to prove that the defendant possessed the murder weapon at the homicide and at the subsequent shooting, the weapon had been in the defendant’s backpack, and it was found near his home. The weapon also matched live ammunition found in the defendant’s yard.

The defendant argued that the evidence was not substantially similar and opposed its use at trial. He also argued the evidence would deprive him of a fair trial because it would improperly shift the focus of the trial to the Williams rule evidence.

The trial court found the evidence relevant to prove motive, intent, preparation, plan, knowledge, identity, absence of mistake or accident, and prior possession of the murder weapon. The court found the collateral crimes shared unique features to the homicide and went directly to the issue of lack of mistake or lack of intent on the defendant’s part. The court admitted the proffered evidence.

On appeal, the defendant argues that too many witnesses testified about the Williams rule evidence, and it became a feature of the trial. Because the State’s case was wholly circumstantial, he argues the jury would not have returned a guilty verdict without the Williams rule evidence.

The State responds that the Williams rule evidence was not a feature of the trial and its admission was not fundamental error. Only two out of thirty-six witnesses testified to the Williams rule evidence in a significant way. And, only nine out of thirty-six pages of the State’s closing argument referenced the Williams rule evidence. The trial court also gave three cautionary instructions to the jury about the limited scope and purpose of the Williams rule evidence, twice during testimony and once at the time of closing.

We review a court’s ruling on Williams rule evidence for an abuse of discretion. Johnson v. State, 112 So.3d 564, 565 (Fla. 4th DCA 2013). However, a timely and specific objection must be made for a party to properly preserve an issue for appeal. State v. Calvert, 15 So.3d 946, 948 (Fla. 4th DCA 2009).

The defendant admits that no timely and specific objection was made. He must therefore establish fundamental error in the trial court’s ruling. Conahan v. State, 118 So.3d 718, 733 (Fla.2013).

Pursuant to section 90.404(2)(a), Florida Statutes:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2012). “Collateral crime evidence becomes an impermissible ‘feature’ where collateral act evidence ‘overwhelms’ evidence of the charged crime and becomes ‘an impermissible attack on the defendant’s character or propensity to commit crimes.’ ” Grier v. State, 27 So.3d 97, 101 (Fla. 4th DCA 2009) (citations omitted).

We agree with the trial court that the Williams rule evidence was relevant to the homicide. The evidence consisted of testimony that a witness saw the defendant in possession of two firearms — a silver semi-automatic firearm and a black firearm — in a backpack prior to the homicide. Shell casings matching those firearms were not only found at the homicide location but also at the location of a shooting that occurred subsequent to the homicide. The victim of the subsequent shooting testified that the defendant and another individual were involved in his shooting and used a silver semi-automatic firearm and a black firearm. There was also testimony that the shell casings from the homicide and the subsequent shooting matched the live ammunition found at the defendant’s home.

This evidence demonstrated the defendant’s possession of the murder weapon both before and after the homicide. It linked the defendant to the commission of the homicide and established his motive. It did not become a feature of the trial. The trial court carefully instructed the jury on the proper consideration of the evidence. We find no error, much less fundamental error. The defendant’s conviction and sentence are affirmed.

Affirmed.

STEVENSON and KLINGENSMITH, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . The defendant did object once to Williams rule evidence of the gun holster; the court sustained that objection.


author: KLINGENSMITH, J.

text:
    DFC TAMARAC, INC., d/b/a Tamarac Preschool Academy, and Joge Investments, Inc., Appellants, v. Fatou N. JACKSON, a minor, by and through her mother and guardian, Coumba Jackson, individually, Appellees.
    No. 4D12-3065.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.

      Pamela A. Chamberlin of Mitrani, Ry-nor, Adamsky & Toland, P.A., Miami Beach, and Elana B. Goodman of Mitrani, Rynor, Adamsky & Toland, P.A., Weston, for appellants.
    Samuel Yeboah of Yeboah Law Offices P.A., Fort Lauderdale, for appellees.
   KLINGENSMITH, J.

DFC Tamarac, Inc., d/b/a Tamarac Preschool Academy (“appellant”) appeals the final order of the trial court denying its motion for attorney’s fees and costs pursuant to section 57.041, Florida Statutes (2012), and section 768.79, Florida Statutes (2012). In the trial court’s view, appellant’s proposal for settlement was ambiguous as to the identity of the offeree because it did not apportion amounts offered to be paid for the child’s claim as opposed to the mother’s separate claim. We find no ambiguity in the identification of the offeree, and reverse.

This case arose after Fatou N. Jackson (“appellee”) was injured while playing on the playground at Tamarac Preschool Academy. Appellee, a minor at the time of the injury, filed a claim with her mother, Coumba Jackson (“the mother”), acting as guardian. The complaint described a single plaintiff, as follows. “Plaintiff, FATOU N. JACKSON, a minor, by and through her mother and guardian, COUMBA JACKSON, individually.” Each count in the initial complaint listed appellee as the one who suffered the consequences of appellant’s alleged negligence, and for each count it was appellee that requested relief. The mother did not make any separate requests for relief, and the complaint confirms she merely appeared as guardian for appellee, not as a separate plaintiff.

While the case was pending, appellant served a proposal for settlement on appel-lee pursuant to section 768.79, Florida Statutes (2012), and Florida Rule of Civil Procedure 1.442 (“rule 1.442”). The proposal tracked the same language used by appellee in the complaint and stated that the offer was being made to “Plaintiff, FATOU N. JACKSON, a minor, by and through her mother and guardian, COUM-BA JACKSON, individually.” Appellee did not accept appellant’s offer of settlement, and after the trial, the jury returned a verdict in favor of appellant. When appellant requested its fees pursuant to the proposal for settlement, the court found the proposal'to be ambiguous and denied the motion. This appeal followed.

Appellant asserts that the trial court erred by holding that the identity of the offeree of its settlement proposal was ambiguous because according to the complaint, the causes of action set forth, and the request for damages solely on behalf of the minor, there was for all practical purposes only one plaintiff; namely, appellee. Since appellee was the sole plaintiff in this case, with the mother acting only as her guardian, appellant argues that there was no ambiguity as to the offeree, and therefore it was not required to apportion its settlement offer between appellee and the mother. We agree.

Where a defendant’s settlement offer is rejected and the judgment obtained by the plaintiff is “at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including ... attorney’s fees ... incurred from the date the offer was served.” § 768.79(6)(a), Fla. Stat. (2012) (emphasis added). Thus, in such situations, a trial court does not have the discretion to refuse to award attorney’s fees under section 768.79. See id.

In order for the offer to be valid, it must: “(a) Be in writing and state that it is being made pursuant to [section 768.79].(b) Name the party making it and the party to whom it is being made, (c) State with particularity the amount offered to settle a claim for punitive damages, if any. [And] (d) [s]tate its total amount.” § 768.79(2)(a)-(d), Fla. Stat. (2012). Additionally, rule 1.442 states that:

(1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.
(2) A proposal shall:
(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F);
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule 1.080.

Fla. R. Civ. P. 1.442(c)(1)-(2).

This court has held that, “pursuant to [section 768.79], once an offer of judgment has been made and rejected .and a judgment of no liability has been entered, the defendant has a right to an award of attorney’s fees unless the offer was found to have been made in bad faith.” Fla. Gas Transmission Co. v. Lauderdale Sand & Fill, Inc., 813 So.2d 1013, 1014 (Fla. 4th DCA 2002). Further, “a no liability judgment activates the offer of judgment statute because ‘a verdict awarding ... nothing is certainly 25 percent less than the offer.’ ” Id. (quoting Winn Dixie Stores, Inc. v. Elbert, 590 So.2d 15, 16 (Fla. 4th DCA 1991)).

It is clear from the record that appellant satisfied the requirements for offering a settlement proposal set forth in section 768.79 and rule 1.442, and that appellee rejected the proposal. It is also clear that that the jury found no liability on appellant’s part, and that such verdicts trigger section 768.79. See id. at 1014.

The record further reflects that the trial court denied appellant’s request for attorney’s fees pursuant to section 768.79 because of ambiguity as to whether appellee or the mother was the offeree, and for failure to apportion the amount of the settlement between them. The trial court based this alleged ambiguity upon its belief that there were two plaintiffs in the underlying action. It is true that there was some confusion throughout the case as to whether or not appellee was the sole plaintiff with the mother as guardian, or whether appellee and the mother were both plaintiffs. However, it is clear from the complaint that it was the former.

Appellant used the exact same language from the complaint in the proposal for settlement. As such, the proposal of settlement was not ambiguous in its offer of settlement to appellee, and appellant was not required to apportion the settlement offer between appellee and the mother. The trial court erred in denying appellant’s motion for attorney’s fees, and we reverse the trial court’s decision and remand with instructions to award appropriate attorney’s fees to appellant. We affirm the court’s denial of fees to appellant’s co-defendant Joge Investments, Inc. because it was not a party to the proposal for settlement, and thus was not entitled to request attorney’s fees pursuant to section 768.79 and rule 1.442. § 768.79(2)(b), Fla. Stat. (2012); Fla. R. Civ. P. 1.442(c)(2)(A).

Affirmed in part, Reversed in part, and Remanded.

GERBER and LEVINE, JJ., concur.


author: LEVINE, J.

text:
    AMERICAN BUSINESS USA CORP., Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 4D13-1472.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.

      Michael D. Sloan, David B. Esau, and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Jeffrey M. Dikman, Senior Assistant Attorney General, and Angela L. Huston, Assistant Attorney General, Tallahassee, for appel-lee.
   LEVINE, J.

The issue presented for our review is whether the State of Florida’s tax on the internet sale of flowers, which are ordered by 'out-of-state customers for out-of-state delivery, violates the commerce clause of the United States Constitution. We find that Florida impermissibly burdened interstate commerce when it taxed out-of-state customers for out-of-state deliveries of out-of-state tangible goods. Because the flowers sold by the Florida-registered internet business were never stored in or brought into Florida, the imposition of taxes did not meet the “substantial nexus” test and thus violated the dormant commerce clause. As such, we reverse the order of the Florida Department of Revenue imposing a tax assessment on the sale of flowers to out-of-state customers for out-of-state delivery. As to the part of the order regarding the imposition of a tax assessment on the sales of prepaid calling arrangements, we affirm.

The Florida Department of Revenue (“the department”) issued a proposed assessment on American Business USA Corp. (“the taxpayer’) for taxes and interest on the taxpayer’s sales transactions between April 1, 2008, and March 31, 2011. The taxpayer filed a timely protest and a final hearing was set in front of a Division of Administrative Hearings judge.

For the final hearing, the parties stipulated to the following facts: The taxpayer is a Florida corporation doing business as “lVende.com,” in Wellington, Florida. All of the company’s sales were initiated online. The taxpayer specialized in the sale of flowers, gift baskets, and other items of tangible personal property, as well as “prepaid calling arrangements.” The taxpayer “did not maintain any inventory of flowers, gift baskets and other items of tangible personal property.”

The taxpayer would use “local florists to fill the orders it received for flowers, gift baskets and other items of tangible personal property.” The taxpayer “charged its customers sales tax on sales of flowers, gift baskets and other items of tangible personal property delivered in Florida.” However, the taxpayer “did not charge its customers sales tax on sales of flowers, gift baskets and other items on tangible personal property delivered outside of Florida.” Finally, the taxpayer “did not charge its customers sales tax on the prepaid calling arrangements it sold.”

The co-owners of the taxpayer, a husband and wife, both testified at the hearing. The department offered no witnesses but offered several exhibits into evidence. The department filed a proposed order which stated that the taxpayer was responsible for the sales tax when the business “receives an order pursuant to which [it] gives telegraphic instructions to a second florist located outside Florida for delivery of flowers to a point outside Florida,” under Florida Administrative Code Rule 12A-1.047(2)(b). The department conceded that the business sold primarily to customers in Latin American markets. The department tax auditor noted that “[t]he taxpayer’s customers are throughout the world primarily to [sic] Spanish speaking countries.”

The administrative law judge issued its recommended order to uphold the department’s proposed assessment and made the following findings of fact. There were two principal aspects of the taxpayer’s business: (1) the sale of flowers, gift baskets, and tangible personal property, and (2) the sale of prepaid calling arrangements. All of the taxpayer’s sales were initiated online. The taxpayer sold to customers throughout Latin America, Spain, and the United States, including Florida. The taxpayer charged its customers sales tax on the sale of flowers, gift baskets, and other items of tangible personal property when the items were delivered within Florida. The taxpayer did not charge its customers sales tax on the sales of flowers, gift baskets, and other items of tangible personal property delivered outside of Florida. Finally, the taxpayer did not charge sales tax on any of the prepaid calling arrangements it sold.

The administrative law judge upheld the department’s assessment, finding that “[t]he taxpayer’s sale of flowers, wreaths, bouquets, potted plants, and other such items of tangible personal property were subject to sales tax pursuant to section 212.05(1)(l) and rule 12A-1.047(1).” The administrative law judge recommended to validate the department’s proposed assessment. The department accepted the recommendation by entering a final order. An appeal of this final order ensues.

“Whether a lower tribunal had subject matter jurisdiction is a question of law which we review de novo.” Dep’t of Revenue ex rel. Smith v. Selles, 47 So.3d 916, 918 (Fla. 1st DCA 2010). “Lack of subject matter jurisdiction may be raised for the first time on appeal.” Id. (citation omitted). Further, “judicial interpretation of statutes and determinations concerning the constitutionality of statutes are pure questions of law subject to the de novo standard of review.” Abram v. Dep’t of Health, Bd. of Med., 13 So.3d 85, 88 (Fla. 4th DCA 2009) (citation omitted). Since this case involves an administrative agency, issues of the constitutionality of the tax statute may be raised for the first time on appeal. See S. Alliance for Clean Energy v. Graham, 113 So.3d 742, 748 (Fla.2013).

In upholding the assessment of the sales tax, the department relied on section 212.05(1)(l), Florida Statutes (2012), and Florida Administrative Code Rule 12A-1.047(1). Section 212.05(1)(l) states:

Florists located in this state are liable for sales tax on sales to retail customers regardless of where or by whom the items sold are to be delivered. Florists located in this state are not liable for sales tax on payments received from other florists for items delivered to customers in this state.

Rule 12A-1.047(1), the administrative regulation that implements the florist tax, states that “[fjlorists are engaged in the business of selling tangible personal property at retail and their sales of flowers, wreaths, bouquets, potted plants and other such items of tangible personal property are taxable.”

The taxpayer contests the imposition of taxes on out-of-state sales of flowers, gift baskets, and other tangible personal property. The taxpayer claims that the imposition of taxes violates the due process clause of the Fourteenth Amendment and the dormant commerce clause emanating from Article 1, Section 8 of the United States Constitution. For the same reasons, the taxpayer also contests the imposition of taxes on the prepaid calling arrangements and disputes the department’s determination that the taxpayer’s books and records were inadequate and that the taxpayer did not retain statutorily mandated records of transactions.

We affirm that part of the department’s order that assessed taxes for the calling arrangements, and we determine that the failure to maintain adequate records was sufficient grounds to affirm. We also find that the imposition of taxes did not violate the due process clause of the Fourteenth Amendment. We do find, however, that the imposition of taxes on out-of-state customers for out-of-state flower deliveries violates the dormant commerce clause, and we reverse that part of the tax assessment which emanates from the sale and delivery of flowers entirely outside Florida. We further find that the tax is unconstitutional as applied to the taxpayer’s sales to out-of-state customers for out-of-state delivery.

At the beginning of the Republic, the Framers were acutely concerned with im-permissibly burdening the commerce between the states. Hamilton famously wrote in Federalist No. 22 that

[t]he interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy.

The Federalist No. 22, at 140 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Prior to the adoption of the Constitution, “[u]nder the Articles of Confederation, state taxes and duties hindered and suppressed interstate commerce; the Framers intended the Commerce Clause as a cure for these structural ills.” Quill Corp. v. N. Dakota, 504 U.S. 298, 312, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992).

Hamilton, in referring to the Articles of Confederation, was highlighting one of the glaring weaknesses of the governing structure during the times before the passage of the Constitution. Hamilton warned about interstate barriers on interstate commerce: “Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect from the-gradual conflicts of State regulations that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.” The Federalist No. 22, at 140-41.

Madison, writing in a. letter in 1829, stated that the commerce clause “grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the states themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.” Letter from James Madison to Joseph C. Cabell, (Feb. 13,1829).

To be sure, Article 1, Section 8, Clause 3 of the United States Constitution “says nothing about the protection of interstate commerce in the absence of any action by Congress. Nevertheless, as Justice Johnson suggested in his concurring opinion in Gibbons v. Ogden, 9 Wheat. 1, 231-232, 239, 6 L.Ed. 23 (1824), the Commerce Clause is more than an affirmative grant of power; it has a negative sweep as well.” Quill, 504 U.S. at 309, 112 S.Ct. 1904. Thus, the dormant commerce clause has come to be understood as prohibiting “certain state actions that interfere with interstate commerce.” Id.

“The Commerce Clause and the Due Process Clause impose distinct but parallel limitations on a State’s power to tax out-of-state activities.” MeadWestvaco Corp. ex rel Mead Corp. v. Ill. Dep’t of Revenue, 553 U.S. 16, 24, 128 S.Ct. 1498, 170 L.Ed.2d 404 (2008). When it comes to evaluating a tax regarding its compliance with the commerce clause, the decisions of the United States Supreme Court

have considered not the formal language of the tax statute but rather its practical effect, and have sustained a tax against Commerce Clause challenge when the tax is applied to an [1] activity with a substantial nexus with the taxing State, [2] is fairly apportioned, [3] does not discriminate against interstate commerce, and [4] is fairly related to the services provided by the State.

Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). This has come to be known as the Complete Auto test. If the state tax fails any prong of the four-part test, then the tax violates the dormant commerce clause. Thus, if the taxing state is able to show only three of the four prongs under Complete Auto, the tax will not be sustained under a commerce clause challenge.

Among the taxes levied by states are the sales tax and the use tax. Sales tax is “any tax which includes within its scope all business sales of tangible personal property at either the retailing, wholesaling, or manufacturing stage, with the exceptions noted in the taxing law.” Jerome R. Hel-lerstein & Walter Hellerstein, State Taxation ¶ 12.01 (3d ed. 2014) (citation omitted). “Compensating use taxes are functionally equivalent' to sales taxes. They are typically levied upon the use, storage, or other consumption in the state of tangible personal property that has not been subjected to a sales tax.” Id. at ¶ 16.01 [2]. “Because the use tax complements the sales tax, it generally applies only to the use of goods and, in some states, to services that have not already been subjected to sales tax. Consequently, the use tax applies principally to goods and services purchased outside the state.” Id. (footnotes omitted).

Thus, “[generally, the power of a state to collect sales taxes is limited to transactions occurring within that state, and states cannot collect a sales tax on purchases made outside the state, such as those made through mail orders.” Geoffrey E. Weyl, Quibbling with Quill: Are States Powerless in Enforcing Sales and Use Tax-Related Obligations on Out-of-State Retailers?, 117 Penn St. L. Rev. 253, 257 (2012). The genesis of this prohibition can be traced in large measure to the commerce clause which

precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State. In Southern Pacific Co. v. Arizona, 325 U.S. 761, 775, 65 S.Ct. 1515, 1523, 89 L.Ed. 1915 (1945), the Court struck down on Commerce Clause grounds a state law where the “practical effect of such regulation is to control [conduct] beyond the boundaries of the state....

Edgar v. MITE Corp., 457 U.S. 624, 642-43, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982) (plurality opinion). See also Am. Oil Co. v. Neill, 380 U.S. 451, 455, 85 S.Ct. 1130, 14 L.Ed.2d 1 (1965) (“When passing on the constitutionality of a state taxing scheme it is firmly established that this Court concerns itself with the practical operation of the tax, that is, substance rather than form.”).

In National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 754, 87 S.Ct. 1389, 18 L.Ed.2d 505 (1967), the Supreme Court considered the constitutionality of a use tax imposed on customers within the taxing state, where the only contact between the company and the instate customers was “via the United States mail or common carrier.” The Supreme Court found the use tax was in violation of the dormant commerce clause. It determined that the taxing state lacked the required “substantial nexus” to tax an out-of-state vendor, whose only contact to the taxing state was by U.S. mail or common carrier. The Supreme Court in Bellas Hess, decades before the advent of the internet, postulated that “it is difficult to conceive of commercial transactions more exclusively interstate in character than the mail order transactions here involved.” Id. at 759, 87 S.Ct. 1389. Because Bellas Hess failed the first prong of the Complete Auto four-part test, the tax could not be sustained. The Supreme Court concluded that if the taxing state in Bellas Hess “can impose such burdens, so can every other State, and so, indeed, can every municipality, every school district, and every other political subdivision throughout the Nation with power to impose sales and use taxes.” Id.

Like in Bellas Hess, the sales tax in the present case fails the first prong of the Complete Auto test. The instant case involves an in-state internet vendor selling to out-of-state customers for delivery of flowers out-of-state. The vendor’s only connection to the taxing state is that it is registered as a corporation in Florida. The only interaction the out-of-state customer has with the taxing state is by shopping for flowers on a website operated by a company incorporated in Florida. The taxpayer does not maintain any inventory of flowers, gift baskets, or items of tangible personal property within Florida. These goods were not grown in, stored in, or delivered from Florida, and do not have any type of connection to Florida.

As we determine “by a case-by-case evaluation of the actual burdens imposed by particular regulations or taxes,” we conclude that the taxes imposed here are an undue burden on interstate commerce, as there is not a “substantial nexus” between the activity of the taxpayer and the taxing state. Quill, 504 U.S. at 315, 112 S.Ct. 1904. Cf. Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 184, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995) (finding Oklahoma’s tax on a bus ticket for travel from Oklahoma to another state satisfied the first prong of the Complete Auto because “Oklahoma is where the ticket is purchased, and the service originates there. These facts are enough for concluding that ‘[tjhere is “nexus” aplenty here.’ ”). Merely registering in a state does not give the taxing state the right to assess sales taxes on transactions without any other facts to constitute “substantial ' nexus.” Further, the Court in Bellas Hess characterized mail order transactions as “exclusively interstate in character.” 386 U.S. at 759, 87 S.Ct. 1389. It follows then that the internet transactions at issue here are even more “exclusively interstate in character.”

The department argues that other states have taxing schemes similar to this one. Of course, the many taxes, in their many variations, is one of the concerns previously expressed by the Supreme Court. “The many variations in rates of tax, in allowable exemptions, and in administrative and record-keeping requirements could entangle [the taxpayer’s] interstate business in a virtual welter of complicated obligations to local jurisdictions.” Id. at 759-60, 87 S.Ct. 1389 (footnotes omitted). We recognize, within our constitutional framework of federalism, that “Congress has the ultimate power to resolve” and “evaluate the burdens that use taxes impose on interstate commerce, [and] remains free to disagree with” the conclusions of the judiciary. Quill, 504 U.S. at 318, 112 S.Ct. 1904.

Unlike the sale of flowers ordered by out-of-state customers with delivery at an out-of-state location, the prepaid calling arrangements have the required “substantial nexus” to the taxing state. See Complete Auto, 430 U.S. at 279, 97 S.Ct. 1076. Taxes on prepaid calling arrangements are governed by section 212.05(1)(e), Florida Statutes (2012). In contrast with tangible personal property, prepaid calling arrangements are sold and delivered by the taxpayer through the internet. Delivery is effectuated by the taxpayer sending an authorization code directly to the customer via the internet. This makes the sale of prepaid calling arrangements unlike ‘the sale of tangible personal property, such as flowers and gift baskets.

We also find that the imposition of taxes did not violate the due process clause of .the Fourteenth Amendment. The standard for due process analysis under the Fourteenth Amendment, as adopted by the United States Supreme Court, is the same standard as announced in International Shoe, i.e., whether maintenance of the suit would offend “traditional notions of fair play and substantial justice.” Quill, 504 U.S. at 307, 112 S.Ct. 1904 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). In this case, traditional notions of fair play and substantial justice were not offended because the taxpayer’s company was registered in Florida and had a mailing address in Florida.

Thus, in Quill, the Supreme Court found that imposing tax on a vendor may violate the commerce clause but, at the same time, not violate the due process clause, where the vendor solicits business by catalogs and delivers merchandise within the taxing state by mail and common carrier. Id. at 305, 112 S.Ct. 1904. That is because “the two, the Due Process clause and the Commerce Clause are analytically distinct.” Id. “[A] corporation may have the ‘minimum contacts’ with a taxing State as required by the Due Process Clause, and yet lack the ‘substantial nexus’ with that State as required by the Commerce Clause.” Id. at 313, 112 S.Ct. 1904.

The Supreme Court in Quill further explained:

Due process centrally concerns the fundamental fairness of governmental activity.... We have, therefore, often identified “notice” or “fair warning” as the analytic touchstone of due process nexus analysis. In contrast, the Commerce Clause and its nexus requirement are informed not so much by concerns about fairness for the individual defendant as by structural concerns about the effects of state regulation on the national economy.

Id. at 312, 112 S.Ct. 1904. The Supreme Court concluded that the “continuous and widespread solicitation of business” within the taxing state was enough to pass muster under a due process analysis. Id. at 308, 112 S.Ct. 1904. At the same time, the Court found that the taxing state failed to demonstrate a “substantial nexus and a relationship between the tax and state-provided services” in order to “limit the reach of state taxing authority so as to ensure that state taxation does not unduly burden interstate commerce.” Id. at 313, 112 S.Ct. 1904.

In summary, we find that assessment of sales taxes on the sale of flowers, gift baskets, and tangible personal property outside Florida, ordered by out-of-state customers for out-of-state delivery, violates the commerce clause of the United States Constitution. As such, we reverse and remand for further proceedings consistent with this opinion. We affirm the other aspects of the assessment as it relates to prepaid calling arrangements. '

Affirmed in part, reversed in part, and remanded.

GERBER and KLINGENSMITH, JJ., concur.


text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-2294.
    No. 2014-BA-2041.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   PER CURIAM.

Lin 2013, the Committee on Bar Admissions (“Committee”) advised petitioner it could not certify him to sit for the July 2013 bar examination based on character and fitness concerns. Petitioner then applied to this court for permission to take the July 2013 bar examination. We denied that application on June 19, 2013.

On September 30, 2014, petitioner filed a pleading in this court captioned “Petition for Appointment of Commissioner.” In that petition, he requests “the appointment of a commissioner to take evidence and to report to the Court on his character and fitness to practice law pursuant to Louisiana Supreme Court Rule XVII, § 9(D).”

Pretermitting the merits of the petition, we find it is premature. Supreme Court Rule XVII, § 9(D) provides the procedure for review of a decision of the Committee. That section provides in pertinent part that “[i]f the petition is filed prior to the applicant sitting for the written examination, the Court may allow the applicant to sit for the written examination and upon satisfactorily passing same, to apply to the Court for the appointment of a Commissioner. ...” [Emphasis added.] This court denied petitioner’s application to sit for the bar examination. Therefore, his application for the appointment of a commissioner is procedurally improper.

Accordingly, the petition is denied.


author: PER CURIAM. HUGHES, J.,

text:
    In re Christopher S. BOWMAN.
    No. 2014-B-1771.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

IxThe Office of Disciplinary Counsel seeks review of a recommendation of the disciplinary board that the formal charges against respondent, Christopher S- Bowman, be dismissed. Having reviewed the record and the briefs of the parties, we find the disciplinary board reached the correct result in dismissing the formal charges.

Accordingly, it is the judgment of this court that the formal charges against respondent be dismissed.

JOHNSON, C.J. dissents.

HUGHES, J., dissents and assigns reasons.

HUGHES, J.,

would grant the writ.

| iWhile I respect the right of respondent to criticize any judge at any time, I wish to avoid a misconception about the nature of our criminal justice system. When a judge or a jury finds a criminal defendant “not guilty,” the verdict cannot properly be said to “thwart” the efforts of the prosecution.

The U.S. Supreme Court instructed in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), that prosecutors represent a sovereign “whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Dwayne WILLIAMS.
    No. 14-KA-129.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Gail D. Schlosser, Matthew R. Clauss, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendani/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

In this second appeal, Defendant, Dwayne Williams, appeals his adjudication as a second felony offender, claiming his predicate conviction was based on a constitutionally infirm guilty plea. For the reasons that follow, we affirm Defendant’s adjudication and sentence as a multiple offender.

Defendant was convicted of possession with intent to distribute cocaine on October 4, 2012, and was sentenced to 20 years imprisonment at hard labor on October 26, 2012. His conviction and sentence were affirmed on appeal. State v. Williams, 13-170 (La.App. 5 Cir. 9/18/13); 125 So.3d 1195.

On June 10, 2013, during the pendency of Defendant’s appeal, the State filed a multiple offender bill of information alleging Defendant to be a second felony offender based on his current possession with intent to distribute cocaine conviction and a 2003 simple burglary conviction. Defendant filed a motion to | ¡¡quash the multiple bill, claiming he was not advised of his right to counsel at trial at the time of his predicate guilty plea, which was denied. A multiple bill hearing was held on January 6, 2014, and Defendant was adjudicated a multiple offender. The trial court vacated Defendant’s original 20-year sentence and resentenced him to 15 years as a second felony offender without the benefit of probation or suspension of sentence.

In his sole assignment of error, Defendant challenges his multiple offender adjudication on the basis his predicate conviction was constitutionally infirm because he was not advised of his right to the presumption of innocence and to call-witnesses at trial. He admits that the Boy-kin form used in the taking of his predicate plea advised him of these two rights, but argues the failure of the form to specify that these rights were available to him “at trial” rendered his plea constitutionally invalid.

When a defendant’s multiple offender adjudication is based on a conviction obtained by a guilty plea, the State has the burden of proving the existence of the guilty plea and that the defendant was represented by counsel at the time of the guilty plea. If the State meets its burden of proof, the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity. If the defendant meets this burden of an infringement or irregularity, the burden shifts back to the State to prove the constitutionality of the plea by producing a “perfect transcript,” which shows the defendant’s waiver of his Boy-kin rights was voluntary, informed, and express. If the State produces anything less than a perfect transcript, including a guilty plea form, a minute entry, or an imperfect transcript, the trial judge must weigh the evidence to determine whether the defendant’s prior guilty plea was both knowing and voluntary, and made with|4an articulated waiver of the three Boykin rights: the right to trial by jury, the privilege against self-incrimination, and the right of confrontation. State v. Shelton, 621 So.2d 769, 779-80 (La.1993).

In the present case, the State introduced certified copies of Defendant’s predicate conviction, which included a Waiver of Constitutional Rights Plea of Guilty form signed by Defendant, his counsel, and the trial judge. The State also introduced minute entries of Defendant’s conviction and sentence for the predicate offense. Both minute entries reflected that Defendant was represented by counsel. Thus, the State met its initial burden of proving the existence of a prior guilty plea and that Defendant was represented by counsel at the time of the plea. See State v. Mosley, 10-266 (La.App. 5 Cir. 11/9/10); 54 So.3d 692, 695-96.

The burden then shifted to Defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity. Defendant argues his guilty plea for the predicate conviction was constitutionally infirm because he was inadequately advised of his trial rights to the presumption of innocence and to call witnesses for the defense.

The guilty plea form for Defendant’s predicate conviction shows that he was informed that by pleading guilty he would be giving up the following rights:

1) to a trial by judge or jury.
2) to be presumed innocent until the District Attorney proves my guilt beyond a reasonable doubt.
3) to require the District Attorney to call witnesses who, under oath, would have to testify against me at trial; and to have my attorney ask questions of each of those witnesses.
4) to testify myself at trial, if I choose to do so; or to remain silent, if I choose not to testify and not have my silence held against me, or considered as evidence of my guilt.
5) to present witnesses who would testify for me and present | .¡favorable or helpful evidence.

Defendant initialed next to each of these rights and also signed the bottom of the guilty plea form. Defendant now contends that this advisal of rights was inadequate because of the omission of the words “at trial” after items (2) and (5). Of note, Defendant does not contend that he misunderstood the rights advice given.

The federal constitutional standards set out in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), require that a guilty plea be recorded showing that the defendant was informed of and waived three specific constitutional rights. These rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. State v. Guzman, 99-1528 (La.5/16/00); 769 So.2d 1158, 1163, n. 4. A review of the guilty plea form for Defendant’s predicate conviction shows that he was adequately advised of his three Boy-kin rights in items (1), (3) and (4).

Contrary to Defendant’s assertion, there is no constitutional requirement that, prior to pleading guilty, a defendant be informed that he is presumed innocent until proven guilty at trial or that he has a right to present witnesses at trial. See State v. Chestnut, 05-220 (La.App. 5 Cir. 11/29/05); 917 So.2d 573, 576. Accordingly, we find that Defendant failed to meet his burden of proving an infringement on his rights or a procedural irregularity in his predicate guilty plea. Because the State proved the existence of a prior guilty plea and that Defendant was represented by counsel at the time, and Defendant failed to prove an infringement on his rights or a procedural irregularity, we find the State established by competent evidence that Defendant was a second felony offender.

|fiWe note that under the Louisiana Supreme Court ruling in State v. Moore, 12-102 (La.5/25/12), 90 So.3d 384 (per curiam ), we do not conduct an error patent review on a multiple offender hearing.

DECREE

For the foregoing reasons, Defendant’s adjudication and sentence as a multiple offender are affirmed.

AFFIRMED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Defendant does not contest his identity as the same person convicted of the predicate offense or the cleansing period.