author: LEWIS, C.J. WOLF, J., PADOVANO, J.,

text:
    STATE of Florida, Appellant, v. Stephen D. BASFORD d/b/a Basford Farms, Appellee.
    No. 1D12-4106.
    District Court of Appeal of Florida, First District.
    July 24, 2013.
    Rehearing Denied Aug. 29, 2013.

      Pamela Jo Bondi, Attorney General, Jonathan Glogau, Special Counsel, and Rachel E. Nordby, Deputy Solicitor General, Tallahassee, for Appellant.
    M. Stephen Turner, David K Miller, and Gino A. Luzietti of Broad and Cassel, Tallahassee, for Appellee.
   LEWIS, C.J.

Appellant, the State of Florida, seeks review of a Final Judgment awarding Ap-pellee, Stephen D. Basford d/b/a Basford Farms, $505,000 plus interest for a taking of certain improvements on his real property as a result of article X, section 21 of the Florida Constitution, which is commonly referred to as the “Pregnant Pig Amendment.” The State argues that the trial court erroneously ruled that Appel-lee’s inverse condemnation claim was not barred by the four-year statute of limitations provided for in section 95.11(3)(p), Florida Statutes. It also contends that the trial court erred in finding a taking where the Amendment did not deprive Appellee of all reasonable and beneficial use of his real property. Finding no merit in either argument, we affirm.

The Amendment at issue, which makes it unlawful “for any person to confine a pig during pregnancy in an enclosure, or to tether a pig during pregnancy, on a farm in such a way that she is prevented from turning around freely,” was approved by Florida voters in 2002 but did not take effect until 2008. As found by the trial court, Appellee ran a sophisticated mass pork production operation in which the animals were housed in barns at all times. Appellee, who was reportedly one of only two pig farmers in Florida using gestation crates when the Amendment was passed, placed certain improvements on his real property for his business. These improvements included a breeding barn, a gestation barn where the gestation crates that were banned by the Amendment were used, a farrowing barn with farrowing crates, two finishing barns, a feed mill and shelter equipped for storing and mixing feed, a lab/office with equipment for artificial insemination, four water wells with pumps to serve the barns and feed mill, clay lagoons for waste disposal, and a metal chute with hydraulic cylinders for lifting pigs into trailers for transport to market. Appellee’s business depended on raising a high volume of pigs for market, and his improvements were designed for that purpose. Appellee shut down his business in 2003 after passage of the Amendment. According to Appellee, he could not, without the gestation crates, operate his business and compete with other producers who were not similarly restricted.

After shutting down his business, Appel-lee began raising perennial peanut hay on the tillable portion of his land. Appellee tore two barns down to the concrete slab and has built or is building new barns for his hay operation. The original barns could not be used for any purpose other than raising pigs because the eaves were too low. It was not possible to drive vehicles or equipment over the concrete flooring because of the gutters. The four-inch wells and 1,000 gallon tanks had no other practical use. Appellee was unable to lease the empty feed mill, and it had no other use. Through his local representatives, Appellee submitted a compensation claim for the loss of his business to the Legislature for 1.35 million dollars. Although appropriation bills were passed in 2004 and 2005, each was vetoed by the governor. In 2005 or 2006, Appellee sold for salvage value the gestation and farrowing crates, some concrete slats, and a heated nursery to a farmer in Georgia.

In January 2010, Appellee filed a complaint against the State for inverse condemnation and for compensation under the Bert J. Harris, Jr. Private Property Rights Protection Act. Appellee argued that the Amendment deprived him of all economically viable and reasonable use of his business for a public purpose. The trial court granted the State’s summary judgment motion as to the second count of the complaint based upon Appellee’s failure to satisfy presuit notice requirements but denied the motion as to the inverse condemnation claim.

During the bench trial on the inverse condemnation claim, Appellee’s counsel explained that Appellee was not seeking any value for the land itself but was seeking the value of the improvements and the fixtures that he used in his pork production business. Counsel argued that the taking occurred in November 2008, when the Amendment took effect. The State’s counsel argued that Appellee’s cause of action accrued in 2003 when he voluntarily shut down his operation. Appellee testified that it was too expensive to rebuild the improvements for a pen-raising pig operation or to convert them for other farming operations. He estimated that it would cost $600,000 to convert to a pen-raising operation. Tim Hewitt, a former extension agent who testified by deposition, believed it would not be feasible for Appellee to stay in business if he was going to have to stop using gestation crates and substantially change his operation. After hearing arguments, the trial court stated in part that a takings analysis under Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), “has to take into consideration everything.”

In the Order of Liability on Partial Taking, the trial court noted that takings claims are either categorical in nature or as-applied. It determined that no categorical taking of Appellee’s property occurred because although the Amendment substantially impacted his ability to generate income from his business, the remainder of his property continued to generate income from crops. The trial court noted that under the analysis set forth in Penn Central Transportation Co., the test for an as-applied or regulatory taking requires consideration of three factors: (1) the regulation’s economic impact on the claimant; (2) the regulation’s interference with distinct investment-backed expectations; and (3) the character of the governmental action.

Focusing on Appellee’s improvements, the trial court found that there was a substantial reduction in their market value as a result of the Amendment and that the Amendment interfered with Appellee’s reasonable investment-backed expectations. In finding that the purpose of the Amendment was to prevent a public harm, the trial court concluded that the Amendment resulted in an as-applied or regulatory taking of Appellee’s improvements. The trial court found that the taking occurred on November 5, 2008, the effective date of the Amendment, and that the statute of limitations began to run at that time. It determined that Appellee was entitled to recover the fair market value of the improvements valued at the time of the taking less salvage value. Although noting that the Amendment restricted only the use of gestation crates, the trial court found that the Amendment resulted in the taking of all of the improvements due to their “functionally integrated nature.” The trial court further concluded that Ap-pellee’s business damages and his losses incurred in selling his breeding stock were not compensable. Thereafter, the trial court entered a Final Judgment wherein it ordered, pursuant to the parties’ stipulation as to the value of the property taken, that Appellee was entitled to $505,000 plus interest. This appeal followed.

The State first argues that the trial court erroneously ruled that Appellee’s inverse condemnation claim was not barred by the four-year statute of limitations provided for in section 95.11(3)(p). However, contrary to the State’s argument that any taking occurred in 2002 when the Amendment was passed or in 2003 when Appellee shut down his business, the government had no enforcement authority to prohibit the use of gestation crates prior to the Amendment’s effective date in 2008. We, therefore, agree with the trial court that Appellee’s inverse condemnation claim accrued in November 2008. See Lamar Whiteco Outdoor Corp. v. City of W. Chicago, 355 Ill.App.3d 352, 291 Ill.Dec. 318, 823 N.E.2d 610, 624 (2005) (holding that the statute of limitations pertaining to the appellants’ challenge to a zoning ordinance that banned certain commercial and noncommercial off-premises advertising structures did not begin to run until a seven-year grace period expired because the ordinance did not affect the appellants’ right to display the billboards in their original state during the grace period).

The State also contends on appeal that the trial court erred in finding an as-applied taking of Appellee’s improvements. Article X, section 6(a) of the Florida Constitution provides that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.” The standard of proof for an as-applied taking is whether there has been a substantial deprivation of economic use or reasonable investment-backed expectations. Shands v. City of Marathon, 999 So.2d 718, 723 (Fla. 3d DCA 2008). This requires a “ ‘fact-intensive inquiry of impact of the regulation on the economic viability of the landowner’s property by analyzing permissible uses before and after enactment of the regulation.’ ” Id. (citation omitted). When reviewing this issue, the trial court’s factual findings are afforded deference while its application of the facts to the law is reviewed de novo. See USA Independence Mobilehome Sales, Inc. v. City of Lake City, 908 So.2d 1151 (Fla. 1st DCA 2005); see also Dep’t of Transp. v. Fisher, 958 So.2d 586 (Fla. 2d DCA 2007).

While the State argues that the trial court erred in analyzing Appellee’s improvements without considering his overall farming business, the record establishes that the trial court was very much aware of the fact that Appellee continued to raise crops on his property. The trial court noted during the bench trial that a Penn Central analysis has to “take into consideration everything.” The trial court further noted that Appellee was not seeking compensation for any diminution in the value of his land and only alleged a taking of his business. It is also important to consider that the trial court labeled its order finding a taking as an “Order of Liability on Partial Taking.” See Res. Invs., Inc. v. United States, 85 Fed.Cl. 447, 477 (Fed.Cl.2009) (“If the taking is not of the entire parcel as a whole, either temporally or by its metes and bounds, government regulation can still effect a partial taking pursuant to the fact intensive Penn Central balancing test.”) (Emphasis in original). Another important consideration, which neither the State nor the dissent acknowledges, is that real property, tangible property, and intangible property may be the subject of a takings claim. See Acceptance Ins. Cos. v. United States., 583 F.3d 849, 854 (Fed.Cir.2009); see also Yancey v. United States, 915 F.2d 1534, 1541 (Fed.Cir.1990) (“For Fifth Amendment purposes, the [plaintiffs’] ownership of their turkey flock deserves just as much protection as if ownership of their farm had been appropriated.”); Dept of Agric. Consumer Servs. v. Mid-Fla. Growers, Inc., 521 So.2d 101, 102-05 (Fla.1988) (holding that a taking occurred when the State burned the respondents’ healthy citrus trees as a result of a concern over citrus canker). Contrary to the State’s characterization of this case as an alleged taking of real property, Appellee did not allege a taking of his land. As such, under the facts of this ease, we reject the State’s argument that no taking could have occurred because the underlying real property was capable of being used for other purposes.

In determining that an as-applied taking occurred as a result of the Amendment, the trial court accepted Appellee’s testimony that his barns could not be used for any purpose other than raising pigs and that the wells and feed mill had no other practical purpose or use. The State offered no evidence below to refute Appel-lee’s testimony on alternative uses of the improvements. Nor has it argued on appeal that the improvements had any other purpose or that Appellee could have converted to a pen-raising pig operation. Cf. Schreiner Farms, Inc. v. Smitch, 87 Wash.App. 27, 940 P.2d 274, 278 n. 12 (1997) (holding that the regulation at issue did not effect a taking of the appellant’s elk herd and noting that the appellant’s special fencing, well, elk-handling facility, and irrigation system had not been rendered worthless by the regulation at issue because they could be used to raise other animals on the ranch). Although the Amendment only restricted the use of gestation crates, a fact which the trial court acknowledged, the court found that the other improvements were functionally integrated with the crates. The State does not challenge this finding on appeal either. As such, we are bound by the trial court’s factual findings as to the value, or lack thereof, of Appellee’s improvements as a result of the Amendment and, therefore, affirm the Final Judgment. In doing so, we note that our opinion should in no way be viewed as an expansion of rights under article X, section 6(a) of Florida’s Constitution. Our disposition is based solely upon the record in this case, the issues that were developed below, and the arguments that were raised by the State on appeal.

AFFIRMED.

WOLF, J., concurring with opinion; PADOVANO, J., dissenting with opinion.

WOLF, J.,

Concurring.

I concur in the well-reasoned opinion of Judge Lewis. I write for two reasons: (1) to point out important factual distinctions between this case and Penn Central Transportation Co. v. City of New York, 488 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); and (2) to reiterate Judge Lewis’ point that this is a very limited decision based on the trial court’s findings that the items of property for which appellee is receiving compensation have absolutely no reasonable purpose, use, or value after application of the “pregnant pig amendment.”

In Penn Central, the claim of the property owner related to the value of land and its future development rights. 438 U.S. at 118-19, 98 S.Ct. 2646. The land at issue still had alternative uses and retained much of its value. Id. at 118-19, 129-38, 98 S.Ct. 2646. In this case the claim is not for diminution of value of land or loss of business profits. Appellant’s damage claim is for tangible property and improvements which had lost all value because of governmental regulation.

In Penn Central, the assessment concerning the land involved a bundle of property rights associated with the land. Id. at 129-38, 98 S.Ct. 2646. No such bundle of rights exists in the tangible property at issue in this case. It cannot reasonably be argued that the State could come onto a farmer’s property and take a tractor and not be required to pay for it. I see no practical difference between the seizure of a tractor and the government telling a tractor owner that the owner can keep the tractor but under no circumstances can the owner turn it on. I also do not see a valid argument that a property owner should not be compensated for costly improvements on property that are rendered valueless because they may be designated fixture.

I would also note, absent the trial court’s finding in this case that there was “no” remaining practical use of the property in question (a result I am skeptical of but, because the State presented no competent evidence in this regard and because the trial court’s findings are supported by competent substantial evidence, is one we must honor), there would be no recovery. Under the limited circumstances in this case, upholding the damage award is appropriate.

PADOVANO, J.,

dissenting.

I acknowledge that the plaintiffs breeding barn was uniquely designed to house pigs in gestation crates and that it was rendered useless after the passage of the Article X, section 21. However, the breeding barn was only a small part of the plaintiffs real property. In fact, the plaintiffs entire pork production operation took place on only four acres of his three hundred and eighteen acre farm. The loss of the barn may have diminished the value of the farm but that is not enough to support a “taking” claim.

The Fifth Amendment protection against the taking of property without just compensation ensures that the government will not force only some people to bear public burdens that in all fairness should be shared by the public as a whole. See Armstrong v. United States, 864 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). It does not ensure that the government will provide compensation merely because the passage of a new law has an adverse economic interest on an existing property right. As the Supreme Court explained in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (quotation omitted), “[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”

The fallacy of the plaintiffs argument in this case is that it attempts to separate the breeding barn from the rest of the real property. If that could be done, I would agree that the passage of Article X, section 21 resulted in a constructive taking of his property. But it cannot be done. We are obligated to evaluate the plaintiffs claim based on the effect this new constitutional provision had on the entire parcel of land, not just one structure on the land, or several acres of the land. The Supreme Court made this point clear in Penn Central when it observed:

“Taking” jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with right in the parcel as a whole.

Penn Central, 438 U.S. at 130-131, 98 S.Ct. 2646. The plaintiffs farm may be worth less now than it was before and perhaps it could be said that it can no longer be put to its highest and best use. Nevertheless, as I read the Penn Central line of cases, consequences such as these do not rise to the level of a governmental taking.

For these reasons, I respectfully dissent.

       Because there is no claim based on the lost value and business damages are unavailable, there is no issue concerning duplicative recovery.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James S. GILSDORF, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3111.
    District Court of Appeal of Florida, First District.
    July 25, 2013.
    Rehearing Denied Aug. 27, 2013.
    James S. Gilsdorf, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


author: LEWIS, J. CLARK, J.

text:
    Allan Ray DAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-705.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Rehearing Denied Aug. 29, 2013.

      Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Appellant challenges his conviction and sentence for trafficking in hydrocodone. The sole issue presented on appeal is whether the trial court committed fundamental error in failing to give the “prescription defense” instruction to the jury. Because the failure to instruct the jury on the “prescription defense” under the circumstances of this case does not rise to the level of fundamental error, we affirm Appellant’s conviction and sentence.

Appellant was pulled over in March of 2011 for driving with a cracked windshield. During the traffic stop, a drug-detection dog alerted to the presence of narcotics. Appellant and his girlfriend exited the vehicle. Per the testimony of a detective at the stop, when Appellant’s girlfriend was asked if she had anything on her person that would get her into trouble, Appellant’s girlfriend informed Appellant that the police were going to search her, then stated that Appellant made her do it, and pulled out a baggie of hydrocodone pills that were stuffed down her pants. The officer at the stop testified that he also observed Appellant’s girlfriend pull the baggie of pills from her pants and heard her say that Appellant gave her the pills when the traffic stop was initiated.

The detective at the stop also testified that Appellant said that he did not have a prescription for the pills, knew it was illegal to possess the pills, and purchased the pills from an individual in the valley. Appellant also admitted to the detective that he previously had a prescription for hydro-codone, but did not have a prescription for the pills in his possession. Another detective, with the narcotics division, testified that he also interviewed Appellant at the county jail and Appellant again admitted that he did not have a prescription for the pills and that he bought all 33 pills retrieved during the stop from an individual in the valley. Appellant told the second detective that he gave his girlfriend the pills to hide when he was pulled over. Appellant’s girlfriend was also interviewed at the county jail by the second detective. She informed the second detective that Appellant obtained the pills from an individual down in the valley and Appellant gave her the pills to hide when they were being pulled over by police.

At trial, a video recording of Appellant and his girlfriend taken while they were in the backseat of a patrol car at the time of Appellant’s arrest was played to the jury. On the recording, Appellant asked his girlfriend, “Why didn’t you just hand them back to me, Baby, instead of telling them about it?” Appellant’s girlfriend indicated that she did not know when she should have given the pills back to Appellant. In response, Appellant said, “Before we got pulled over. Why didn’t you just tell me to carry them? Because they don’t never touch my nuts. They don’t never touch your crotch area. They come up your leg and that’s it.” Additionally, after being informed by his girlfriend that the police were arresting her because they wanted to ask her more questions about where the pills came from, Appellant said, “I told them from my boy over across town.”

During his defense at trial, Appellant and his girlfriend both testified and denied that they told the police that the hydroco-done pills were purchased illegally in the valley. Appellant’s girlfriend claimed Appellant asked her to put the pills in her purse, but she stuck the pills down her pants because she was afraid that they would get crushed in her purse. Appellant testified that the pills were in a baggie and not in a prescription bottle because their dog had chewed up the entire bottom of the bottle. Appellant also testified that he told his girlfriend to keep the pills in her purse for safety and because he did not want the police to think that he was doing anything illegal. Regarding the video recording, Appellant claimed that he was merely attempting to get the pills back from his girlfriend to explain that they were not illegal. He denied asking his girlfriend to hide the pills. He claimed that his girlfriend voluntarily handed the pills over to the officers, and they explained to the officers that the pills were not illegal, but had been prescribed.

Appellant submitted prescription records from two pharmacies that reflected that he had filled prescriptions for over 300 hydrocodone pills from August 2010 to November 2010. The last prescription filled, in November 2010, was for 28 pills. Appellant also admitted his medical records into evidence. One of the records was from a December 2010 ER visit that occurred one month after Appellant’s last prescription was filled and reflected that Appellant told the ER personnel that he had been off of hydrocodone for over a week and needed a refill of pills. Appellant also reported that he had gone to the ER for the purpose of obtaining a refill, and he had been taking hydrocodone daily for over 20 years.

During closing arguments, the prosecutor argued that although Appellant had told the officers that he had a prescription for hydrocodone in the past, he also admitted he did not have a prescription for the pills that were found. Additionally, in rebuttal, the prosecutor stated:

Now, ladies and gentlemen, the State is not contesting the fact that the defendant had a prescription for Lortab, or hydrocodone, at one point in time. However, the State has proven today, beyond a reasonable doubt, that the pills that were in his possession on March 16th of 2011 ... were not prescribed to him and they were illegal to possess under' Florida law.

The prosecutor went on to focus on Appellant’s statements on the video recording and asserted that someone who had a “valid prescription” would not concoct a scheme to conceal prescription pills from law enforcement by putting them down someone’s pants. The jury found Appellant guilty as charged with trafficking in hydrocodone. This appeal followed.

Pursuant to section 893.13(6)(a), Florida Statutes (2010), it is unlawful for any person to be in actual or constructive possession of a controlled substance unless the substance was “lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner....” Appellant asserts on appeal that it was fundamental error not to instruct the jury on the prescription defense. Appellant further contends that because the prescription defense was his sole defense, reversal for a new trial is required under the facts of this case. We disagree.

The Florida Supreme Court has made it clear that the failure to give a jury instruction on an affirmative defense does not constitute per se fundamental error. Martinez v. State, 981 So.2d 449, 455 (Fla.2008). Instead, “[w]here the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Id. (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)). “Additionally, the fundamental error doctrine ‘should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.’ ” Id. (quoting Smith, 521 So.2d at 108) (emphasis in original).

The language from Martinez has been relied upon and applied by this Court in three separate opinions dealing with the failure to give the prescription defense and resulted in reversals based upon the fundamental error doctrine. See Ayotte v. State, 67 So.3d 330 (Fla. 1st DCA 2011); Glovacz v. State, 60 So.3d 423 (Fla. 1st DCA 2011); McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010). We, however, conclude that the three prior cases are factually dissimilar to the facts of this case.

In McCoy, we, in interpreting Martinez, held that “[a] defendant is deprived of a fair trial if the error divests the defendant of his or her ‘sole, or ... primary, defense strategy’ and that defense is supported by evidence adduced at trial that could not be characterized as ‘weak.’” 56 So.3d at 40 (quoting Martinez, 981 So.2d at 455-57) (emphasis added). The defendant in McCoy claimed that she was holding the pills for her husband who had a valid prescription. 56 So.3d at 38. The prescription defense may be asserted by “any individual authorized by the prescription holder to hold the medications on his or her behalf.” State v. Latona, 75 So.3d 394, 394 (Fla. 5th DCA 2011) (citing McCoy, 56 So.3d at 39). In concluding that the failure to instruct the jury on the prescription defense amounted to fundamental error, we focused on the fact that, not only did the jury fail to receive an instruction on the prescription defense, but the prosecutor specifically told the jury:

They want you to say, so what, they’re her husband’s pills, of course she can have them, but you know what you won’t hear, when the Judge reads you the law, you won’t hear that she had a right to have them because, after all, Hydroco-done is a controlled substance.
You will not hear from the judge that it is a defense for this defendant to have the pills because her husband has a prescription. You will not hear that. If you do not hear that, then there is no defense in the law for this defendant to have the pills.

McCoy, 56 So.3d at 40. We concluded that the case presented one of those rare instances where fundamental error had occurred because the prescription defense constituted the defendant’s sole defense, there was substantial, although conflicting, evidence regarding the defense, and the prosecutor had made an “egregiously incorrect” argument regarding the defense. Id. at 41.

We again addressed the failure to instruct the jury on the prescription defense in Glovacz. There, the defendant did not deny possessing hydrocodone, but claimed to have a valid prescription. 60 So.Sd at 424. The State did not dispute the defendant’s claim that he had a valid prescription for the pills. According to the State’s evidence, the defendant had sold the drugs to an undercover officer. Id. The defendant, on the other hand, claimed that she did not receive any money, believed the undercover officer was in pain, and expected the undercover officer to give her back the same amount of pills when she obtained her own prescription. Id. Relying on our opinion in McCoy, we again found fundamental error, focusing on the fact that the prescription defense was not given and the prosecutor had suggested in closing that possession alone could support a conviction for trafficking. Id. at 425-26.

Finally, our most recent opinion addressing the failure to instruct the jury on the prescription defense is Ayotte. Similar to McCoy, the defendant in Ayotte claimed that he was holding the pills for his girlfriend, who had a valid prescription. 67 So.3d at 331. The arresting officer testified that he observed the defendant showing the pills to another patron, and the defendant confessed that he was selling the drugs to pay for drinks. Id. The defendant denied trying to sell the pills and claimed that they fell out of his pocket while he was reaching for his cigarettes. Id. In closing, the State emphasized only the elements of the trafficking charge and reminded the jury that it had a duty to uphold the law. Id. We held that the facts were analogous to McCoy and Glovacz, noting that there was “conflicting evidence regarding a transaction of the controlled substance, failure by all participants and the standard jury instructions to acknowledge the statutory exceptions for possession pursuant to a valid prescription, failure by the state to refute Appellant’s role as his girlfriend’s agent, and the prosecutor’s argument that possession alone was sufficient to convict.” Id. at 332.

Although the prescription defense was Appellant’s sole theory of defense, as was the situation in our three prior cases, those cases, as previously noted, are factually dissimilar to the facts of this case. In those cases, the State did not dispute the existence of a valid prescription for the drugs at issue. Instead, our three prior cases all turned on the conflicting testimony of the defendant versus the police officer regarding whether the defendant was selling prescribed drugs or whether the defendant, an agent for the actual prescription holder, was taking the prescribed drugs. Unlike our three prior cases, here, the State did dispute that the 33 pills were from a valid prescription and introduced testimony from three officers that Appellant had admitted to illegally purchasing the pills.

Furthermore, in Martinez, the Florida Supreme Court, after reviewing the complete record of the case, concluded that the defendant’s claim of self-defense was “extremely weak.” 981 So.2d at 456. Specifically, the supreme court pointed to inconsistencies in the defendant’s testimony when compared with his prior statements to the police and found that the case did not present “a compelling demand for the application of the fundamental-error doctrine.” Id. at 456-57.

Similar to Martinez, Appellant’s own evidence weakens his theory of defense. The medical record evidence submitted by Appellant during trial extremely diminished his claim that the 83 pills at issue were leftover prescriptions, the last of which was filled in November 2010 for 28 pills, four months prior to his arrest. Specifically, the medical record from Appellant’s December 2010 ER visit, which occurred approximately three months prior to his arrest, reflects that he reported being off hydrocodone for over a week and was seeking a refill. Appellant reported that he took hydrocodone daily for over 20 years and his reason for going to the ER was to obtain a refill of his medication. Appellant’s statement to his doctors that he was taking hydrocodone daily for over 20 years, was off hydrocodone for over a week, and was seeking a refill, extremely weakens any claim that the 33 pills in his possession at the time of his arrest, four months after his last prescription for only 28 pills was filled, were from his prior prescriptions. At trial, Appellant did not submit any additional prescription records to establish that a prescription for hydro-codone was written at this ER visit or filled at any point after this visit. Additionally, the jury was played a video recording of Appellant and his girlfriend taken while they were in the backseat of a police car at the time of Appellant’s arrest where Appellant asked his girlfriend why she did not hand the pills back to him, indicating that he would have put the pills down his pants to conceal them as the police “never touch your crotch area.” When informed by his girlfriend that the officers wanted to ask her more questions about where the drugs came from, Appellant said, “I told them from my boy across town.” This video recording contradicted Appellant’s testimony that he wanted his girlfriend to hand over the pills to the officers or that he had a valid prescription for the 33 pills at issue.

As such, given these facts, along with the testimony from the detectives that Appellant admitted at the time of his arrest and in a later interview that he purchased the pills illegally and he no longer had a valid prescription, we conclude that the evidence of a valid prescription for the 33 pills in question was weak at best and does not present a compelling demand for applying the fundamental error doctrine. If we were to accept the dissent’s position that fundamental error occurred in this case and that we are invading the province of the jury by determining whether the evidence at issue is “weak,” we would essentially be saying, contrary to the supreme court’s reasoning in Martinez and our prior reasoning, that fundamental error always occurs in a case where a defendant raises the prescription defense and presents some evidence in support of the defense but where defense counsel fails to request the pertinent instruction. The standard by which the dissent judges this case is not the standard by which we are to judge whether fundamental error occurs in a case, regardless of whether it involves the prescription defense.

Furthermore, unlike our three prior cases, this case does not merit the application of the fundamental error doctrine as the prosecutor in this case did not ignore the prescription defense during closing arguments or incorrectly inform the jury that it should not consider Appellant’s prescription evidence. In all three of our prior cases, the prosecutor either incorrectly informed the jury that it should not consider the prescription defense or informed the jury that possession alone was sufficient to convict. Here, unlike our three prior cases, the jury heard the prosecutor, at multiple points during his closing and rebuttal, make arguments regarding why it should reject Appellant’s claim that the pills at issue were from his prior prescriptions. The prosecutor did not tell the jury not to consider Appellant’s evidence of prescriptions, but directed its attention to evidence to establish that the pills at issue were not from his prior prescriptions.

In contrast to our prior opinions on this issue, Appellant’s defense was supported by evidence that can only be characterized as weak and the prosecutor did not make an egregiously, incorrect argument regarding this defense. Accordingly, we do not find a compelling demand to apply the fundamental error doctrine under the facts of this case and we therefore affirm Appellant’s conviction and sentence.

AFFIRMED.

RAY, J., concurs; CLARK, J., dissents with opinion.

CLARK, J.

dissents.

Appellant was convicted of trafficking in hydrocodone. Because the quantity of hy-drocodone qualified under section 893.135(c)l.b., Florida Statutes, Appellant was charged with the offense of trafficking rather than possession. In my view Appellant was deprived of a fair trial by the trial court’s failure to instruct the jury on the “prescription defense” under sections 499.03(1) and 893.13(6), Florida Statutes (2010). This fundamental error requires a new trial. I would reverse the conviction and sentence.

During the trial, a special jury instruction regarding the prescription defense was mentioned during discussions between the court and counsel. However, the trial court cut short this discussion and left the matter for later. The issue of a special jury instruction on the prescription defense was not revisited. ■

During its closing argument, the State did not mention prescriptions and limited its argument to the statutory elements of the offense. Defense counsel repeatedly mentioned Appellant’s prescriptions during closing argument and urged the jury to acquit if it found that Appellant possessed the pills via his prescription(s). On rebuttal, the State countered that the particular tablets in this ease were not obtained through a valid prescription and that the testimony of the defense witnesses was not credible. No instruction was given to the jury to explain that a valid prescription for the hydrocodone was an available defense to the charges.

This Court has previously found fundamental error in drug trafficking convictions where the defendant presented evidence that the substance was obtained by a valid prescription but the jury was not instructed on this defense. Ayotte v. State, 67 So.3d 330 (Fla. 1st DCA 2011); Glovacz v. State, 60 So.3d 423 (Fla. 1st DCA 2011); McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010). While the particular facts of each case varied slightly, the common reasoning applied in each ease was that “there is no way of knowing if the jury would have acquitted appellant had it known there existed a prescription defense and it had the option to accept [his] affirmative defense.” McCoy, 56 So.3d at 40-41. As stated in Wagner v. State, 88 So.3d 250, 252 (Fla. 4th DCA 2012), “[a] valid prescription is a complete defense to trafficking and a defendant is entitled to a jury instruction on this defense.” See also O’Hara v. State, 964 So.2d 839 (Fla. 2d DCA 2007) (denial of request for jury instruction on prescription defense is reversible error).

A trial court’s omission of a jury instruction is generally subject to the contemporaneous objection rule. However, there is an exception to this rule in rare cases where the defendant is deprived of a fair trial. The error then constitutes fundamental error and preservation of the issue is not required for appellate review. Smith v. State, 521 So.2d 106 (Fla.1988). Regarding the affirmative defense to trafficking through possession of a sufficient amount of a controlled substance — that the defendant possessed the substance pursuant to a valid prescription — it is fundamental error where, as here, “a jury is not instructed as to a defendant’s affirmative defense, and that affirmative defense remains the defendant’s sole or primary defense to the charge” so that “the jury, confining itself to the instructions provided by the court, would be required to convict.” Ramirez v. State, — So.3d -, 38 Fla. L. Weekly D148, 2013 WL 163461, at *4 (Fla. 4th DCA Jan. 16, 2013).

The fundamental error exception to the general rule depends on the evidence presented, the offense charged, and the particular affirmative defense involved. The Florida Supreme Court explained that the failure to instruct the jury on an affirmative defense may constitute fundamental error only “where a jury instruction is so flawed as to deprive defendants claiming the defense ... of a fair trial.” Martinez v. State, 981 So.2d 449, 455 (Fla.2008). “A defendant is deprived of a fair trial if the error divests the defendant of his or her ‘sole, or ... primary, defense strategy’ and that defense is supported by evidence adduced at trial that could not be characterized as ‘weak.’ ” Id. In Martinez, the Florida Supreme Court declined to find the omission of a jury instruction on self-defense fundamental error because, not only was the affirmative defense not the “sole, or even his primary defense strategy” but also because “Martinez’s claim of self-defense was extremely weak.” Id. at 456. The court stated that Martinez’s claim that he “had to fight for his life and did not have an opportunity to leave the room strained even the most remote bounds of credulity.” Id. The Florida Supreme Court found that Martinez was not deprived of due process by the omission of the jury instruction on self-defense and declined to deem the error fundamental in that case.

The Martinez opinion’s reference to “weak” evidence of an affirmative defense is not an invitation for appellate courts to invade the province of the jury in determining the weight and credibility of evidence. Rather, the Martinez court was describing the situation in that case, where the omission of a self-defense instruction did not deprive Martinez of a fair trial because self-defense was not his sole defense and the evidence presented by the defense was insufficient even to create a jury question of whether Martinez acted in self-defense or not.

The proof required to create a jury question about self-defense is, of course, different than the proof necessary to create a jury question of whether a defendant possessed controlled substances pursuant to a valid prescription. In this case, unlike Martinez’s self-defense theory, Appellant’s prescription defense did not strain “the most remote bounds of credulity.” The defense witnesses included pharmacy staff and medical records custodians. The testimony of Appellant and his girlfriend contradicted the testimony of the State’s law enforcement officers regarding statements or admissions made to the officers. The documentary evidence included Appellant’s medical and pharmacy records. The jury was fully capable of determining the credibility of the various witnesses and the weight to be given the various statements and items of evidence. The evidence was clearly sufficient to allow the jury to consider Appellant’s prescription defense had the jury been instructed that such defense was available.

Because the prescription defense was Appellant’s only defense and there was sufficient evidence to create a jury question on the affirmative defense, the failure to instruct the jury about the prescription defense to drug trafficking deprived Appellant of a fair trial and constituted fundamental error. No person should be convicted of a crime where the jury is not apprised of the applicable law.

      . We note that the court reporter's transcript of the video recording only denotes Appellant saying, "Before we got pulled over. Why didn’t you just hold on to it? (Unintelligible) They don't never touch your crotch area.” In closing and rebuttal, however, the prosecutor summarized the evidence from the video recording and Appellant’s statements were much more extensive than what was transcribed by the court reporter. The prosecutor informed the jury that the video recording was evidence, the video would be going back into the jury deliberation room, and the jury could watch it as many times as it wanted. Since the video recording was admitted into evidence as State's Exhibit 2 and is contained in the record on appeal, we have independently reviewed the video recording. On the video recording, Appellant is clearly intelligible and can unmistakably be heard saying the statements quoted in this opinion.


text:
    Roger Allen ROZZELLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2639.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Roger Allen Rozzelle, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of habeas corpus, petitioner challenges his judgment and sentence in Okaloosa County Circuit court case number 98-CF-1143. The petition is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his conviction and sentence, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because petitioner’s continued and repeated attacks on his conviction and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Okaloosa County Circuit court case number 98-CF-1143. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R.App. P. 9.410.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


author: PER CURIAM. MAKAR, J.,

text:
    Anthony ORTIZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2428.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Rehearing Denied Aug. 29, 2013.
    Jeffrey E. Lewis, Regional Criminal Conflict & Civil Counsel, and Clifton W. Wilson, Jr., Assistant Regional Counsel, Lake City, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We are presented with an emergency petition for writ of prohibition asking that we order the trial court to dismiss the first-degree murder charge against Petitioner, Anthony Ortiz. Petitioner twice moved unsuccessfully in the trial court to dismiss his indictment for first-degree murder, claiming that he was a juvenile at the time of the alleged offense and that no legal sentence currently exists for first-degree murder should he be convicted. He contends that the only two penalties statutorily authorized for first-degree murder, death and mandatory life without parole, have been declared unconstitutional as to juvenile offenders. See § 775.082(1), Fla. Stat. (2012); Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (invalidating death penalty for juvenile offenders); Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (invalidating mandatory life without parole for juvenile offenders). Petitioner argues that his right to Due Process is therefore violated because the indictment fails to provide him with adequate notice of the possible penalties or punishment that he would face upon plea or conviction.

Petitioner’s arguments are unpersuasive and ignore the decision in Washington v. State, 103 So.3d 917 (Fla. 1st DCA 2012), in which this Court affirmed a juvenile defendant’s conviction for first-degree murder but reversed his mandatory life sentence and remanded for resen-tencing in accordance with Miller. Washington clearly set forth a valid sentencing option on remand, one that operates as a ceiling and is applicable to juvenile defendants: life without parole after a juvenile mitigation inquiry. See also Neely v. State, 38 Fla. Law Weekly D851 (Fla. 3d DCA Apr.17, 2013) (“Because Miller did not categorically bar a life sentence without parole for a juvenile, this decision does not preclude the trial court from again imposing a life term without possibility of parole should the trial court upon reconsideration deem such sentence justified.”). In light of Washington, Petitioner has actual notice that he may face up to life in prison without the possibility of parole if convicted of first-degree murder. Washington also leaves unchanged the broad existing prosecutorial discretion to enter into plea negotiations including downward departures and pleas to lesser included offenses.

The fact that the procedural posture of this case is different from the one in Washington is of no moment. Prohibition is narrow in scope and is appropriate to prevent a lower tribunal from acting in the absence of or in excess of its jurisdiction. English v. McCrary, 348 So.2d 293 (Fla.1977). It may not be used “to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction.” Mandico v. Taos Constr., Inc., 605 So.2d 850, 854 (Fla.1992). The petition is not directed to the existence of the lower court’s jurisdiction, but to its authority to impose a constitutional sentence. A circuit court has jurisdiction to conduct proceedings in a first-degree murder case. That constitutional issues may arise at the sentencing stage does not divest the court of its power to preside over such matters or otherwise create a jurisdictional defect that would give rise to a basis for granting prohibition relief.

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

BENTON and RAY, JJ., concur; MAKAR, J., Concurs with written opinion.

MAKAR, J.,

concurring.

I concur in full, but make two points. First, the State devotes almost twenty-five of its thirty-six page response to why statutory revival is the correct legal path to follow at sentencing in this class of post-Miller cases, a position with which I am sympathetic. See Partlow v. State, — So.3d -, 2013 WL 45743, 38 Fla. L. Weekly D94 (Fla. 1st DCA Jan.4, 2013) (Makar, J., concurring in part, dissenting in part). Defense counsel follows suit, counter-arguing that no statutorily-authorized sentence exists for the charged offense and that statutory revival would be improper. Absent en banc review, however, we are not in a position in this case to resolve this important issue, one this Court has decided to defer so that trial courts get the first cracks at determining the range of lawful sentencing options. See Washington v. State, 103 So.3d 917, 920 (Fla. 1st DCA 2012).

Second, in providing advice on possible sentences for the first degree murder charge, defendant and his counsel would prefer greater certainty about which options might apply; indeed, the State would like greater certainty as well. What safely can be said at this juncture is that the defendant, if convicted, likely faces one of three lengthy sentences: life without parole (after a youth-mitigation hearing) (Washington); life with parole-eligibility after twenty-five years (the statutory revival argument); or a substantial term of years (Judge Wolfs position in Washington and Partlow). A fourth possibility, that an appellate court will hold that no sentencing option exists for a first degree homicide, even if committed by a sixteen year-old (the defendant’s age at the time of the charged offense), appears highly unlikely given these other viable options. Thus, the range of probable sentences in this case is narrow and skewed toward a life sentence. This minor degree of variance in potential sentencing options as to the charge of first degree murder does not raise a due process issue that justifies the extraordinary relief sought at this juncture of the case. This is particularly true given that the maximum penalty is known with certainty (life without parole after youth mitigation inquiry) and that a wide range of potential plea negotiations as to possible lesser offenses remains available should the prosecution and defense desire to do so.

Though not a due process case, it bears noting that in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the juvenile offender faced a far greater variance in his possible sentence for armed burglary (a term of years up to life without parole) than does the defendant here. Of course, Graham knew with certainty the range of possible sentences up to and including the possibility of (no-longer-lawful) life without parole, while the defendant here does not. But it is apparent that the range of likely sentences for the first degree murder charge in this case is constricted, making it a less than compelling one for the extraordinary writ of prohibition. Trials must go forward and, as this Court has said, trial judges must consider the legality of sentencing options in the first instance. Thus, I agree the writ should be denied.

      . Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)


author: EMAS, J.

text:
    ALDERWOODS GROUP, INC., a Delaware Corporation, Osiris Holding of Florida, Inc., a Florida Corporation, d/b/a Graceland Memorial Park South f/k/a Paradise Memorial Gardens, Inc., Northstar Graceland, LLC, a Texas Corporation, Appellants, v. Reyvis GARCIA, surviving son of Eloisa Garcia, deceased, Ramona Johnson, surviving natural daughter of Robert Williams, Sr., deceased and Mercedes Woodberry, natural parent of Constant Gilbert, deceased, Appellees.
    No. 3D11-1497.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.

      Kopelowitz Ostrow Ferguson Weisel-berg Keechl and Robin Corwin Campbell, Fort Lauderdale; Gray Robinson and Ted C. Craig, Miami, for appellants.
    Colson Hicks Eidson and Ervin A. Gonzalez and Patrick S. Montoya, Coral Gables; Greenspoon Marder and Neil W. Hirschfeld and Kenneth J. Sobel, Fort Lauderdale; Ross & Girten and Lauri Ross and Theresa L. Girten, Miami, for appellees.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Alderwoods Group, Inc., Osiris Holding of Florida, Inc. d/b/a Graceland Memorial Park South, f/k/a/ Paradise Memorial Gardens, Inc., and Northstar Graceland, LLC (collectively “Alderwoods”), former and current owners and operators of Graceland Memorial Park South Cemetery (the “Cemetery”), appeal the lower court’s non-final order granting class certification. For the reasons that follow, we reverse.

I. FACTS

Appellees, Reyvis Garcia, Ramona Johnson, and Mercedes Woodberry (collectively the “Representative Plaintiffs”) have family members buried at the Cemetery. They filed suit against Alderwoods, asserting each of the Representative Plaintiffs sought to locate their relatives’ graves but were unable to do so.

A. Background

The Cemetery opened in 1959 at Southwest 117th Avenue and 139th Street in Miami, Florida, extending east to west from 117th Avenue to the Florida Turnpike. Thousands of people are buried in what is deemed the “old section” of the Cemetery, consisting of approximately seven acres of the nearly thirty-five acre plot of land. The old section contains burials from approximately 1959 until at least 1993, and includes more than 5000 graves.

B. The Comptroller’s Investigation

In mid-1996, the Comptroller of the State of Florida, as head of the Florida Department of Banking and Finance (the “Department”), commenced an investigation of the Cemetery pursuant to the provisions of the Florida Funeral and Cemetery Services Act, Chapter 497, Florida Statutes (1996) (“Cemetery Act”). The Department noted serious deficiencies in the Cemetery’s books and records, determining them to be “unexaminable.” On February 20, 1997, the Department and Osiris Holding Corporation entered into a stipulation and consent order. Under the terms of this order, the Cemetery-in lieu of immediate administrative suspension for its inability to be examined-received a fine and was required to retain certified public accountants to perform an audit. The order further required that, no later than July 31, 1997, the Cemetery would bring its books and records into compliance with the Cemetery Act. The Department subsequently placed the Cemetery on probation pursuant to sections 497.233(l)(a), (i), (j) and (w) of the Cemetery Act.

The Cemetery violated the terms of the stipulation and consent order by failing to bring its books and records into compliance with the Cemetery Act by the agreed-upon deadline. On January 12, 1999, the Department issued a cease and desist order, finding an immediate danger to the public welfare. The Department concluded the Cemetery was “unable to rehabilitate [its] operations,” failed to implement the CPA’s recommendations, and “failed to make corrections to [its] books, records and processes” that would bring it into compliance. As a result, the Department suspended the Cemetery’s license as it pertained to: entering into preneed contracts; engaging in sales; advertising pre-need services, preneed merchandise and preneed burial rights; entering into pre-construction sales contracts; engaging in preconstruction sales; and advertising and soliciting at-need sales. The Department suspended the Cemetery’s license until such time as the Cemetery came into compliance with the requirements of the Cemetery Act.

The suspension remained in effect until July of 2002, when the Department conducted examinations to determine compliance with the 1999 cease and desist order. The Department issued a report concluding that the majority of the problems it identified during the 2002 examination were inconsistent cemetery records. Thereafter, on December 23, 2002, the Department issued a final order (the “Final Order”) on a new stipulation between the parties executed on the same date, finding “no current and continuing violations, which justify continuing the suspension of preneed sales by [the Cemetery],” but otherwise requiring strict compliance with all provisions of the Cemetery Act. Specifically, the Final Order provided that within sixty days, the Cemetery was obligated to “(1) [reconcile its burial space inventory and burial rights ownership records at Graceland Memorial Park; (2) provide a Reconciliation Report to the Department of its findings and corrections; and (3) provide appropriate notification to any affected customers.” Within twenty-four months from the effective date of the Final Order, the Department would assess the Cemetery’s compliance.

C. Events Giving Rise to the Instant Lawsuit

The events giving rise to the instant lawsuit began shortly after the issuance of the above-described 2002 Final Order. Thereafter, in December 2004, Reyvis Ramon Garcia filed suit against Alderwoods. Following a deposition of the cemetery manager, Yvette McPhillips, Garcia added the class action allegations in June 2006 and Ramona Johnson and Mercedes Wood-berry were added as plaintiffs in October 2006. Each of the Representative Plaintiffs was alleged to have a relative buried in the old section of the Cemetery between 1986 and 1993, and each allegedly had difficulty locating the gravesites of their respective family member. The allegations surrounding each of their family members’ gravesites are as follows:

• Reyvis Ramon Garcia’s mother, Eloísa, was buried in the old section on March 20,1986. Garcia arrived from Cuba in 2003 intending to pay respects to his mother’s grave, but her body could not be readily found and the Cemetery was “never able to tell [him] exactly where she was buried.” He admits his family did not purchase a memorial to mark the grave. When Garcia subsequently went to visit the grave of his aunt who was also buried at the Cemetery, her grave was found without issue. However, while he was at the Cemetery, he observed employees inserting metal bars into the ground, a process called “probing,” and was told the Cemetery was attempting to locate his mother’s grave. He became upset with what he saw. After eventually narrowing down the location at which his mother was believed to be buried, Cemetery employees, in the presence of a licensed funeral director, removed the lid of the outer burial container believed to be Eloisa’s and inspected the casket without removing either the casket or remains. The parties confirmed that the remains were those of Eloísa. Garcia is the only Representative Plaintiff who alleges his family member’s interred remains were disturbed in some manner.
• Ramona Johnson’s father, Robert Williams, was buried in the old section of the Cemetery in June 1993 with a temporary marker on his grave. Thereafter, Johnson’s attempts to locate her father’s grave on several occasions were unsuccessful because the temporary marker was missing. The temporary marker was simply a piece of paper in a plastic cover and was only supposed to identify the grave until a tombstone was purchased by the family. No tombstone was ever purchased. Though she went to the cemetery in 2001, 2003 and 2004, Johnson did not make an inquiry about the location of her father’s remains until 2006. At that time, the Cemetery could not locate or identify his grave in its books. Johnson never asked the lower court to order an inspection of the grave believed to be that of her father.
• Mercedes Woodberry’s child, Constance Grace, was stillborn. She was buried in 1989 in a portion of the old section of the Cemetery known as “Ba-byland.” Woodberry never purchased a permanent burial marker. Thereafter, however, Woodberry sought the location of her daughter’s grave to erect a headstone, but the Cemetery was unable to locate Constance’s burial site even after being provided a specific lot number. Beginning in 1995, Woodberry returned to the Cemetery several times, but each time Cemetery employees told her they could not locate her- daughter’s graves-ite. Approximately twelve years later, Woodberry joined the instant suit. In March 2008, in the presence of Wood-berry’s sister and the Cemetery’s funeral director, the Cemetery inspected the grave believed to be that of Constance. Inside were hooks from an infant-style casket, the remains of a female infant, and the clothing in which the baby was buried. The Cemetery thus believed it located the remains of Woodberry’s daughter, but Woodberry still contends it cannot locate her child’s remains.

In their Fourth Amended Complaint, the Representative Plaintiffs assert claims for (i) Tortious Interference with Dead Bodies; (ii) Intentional or Reckless Infliction of Emotional Distress; (iii) Gross Negligence, and (iv) Equitable Injunctive Relief. The crux of the first three claims is that the Representative Plaintiffs suffered — and continue to suffer — emotional harm as a result of the Cemetery’s alleged inability to locate their family members’ gravesites to their satisfaction. The first three counts seek monetary damages. Count IV, on the other hand, seeks injunc-tive relief, to wit:

[A] permanent mandatory injunction that requires Defendants to fund a court supervised program that provides for an Examiner, the establishment of a Blue Ribbon panel of experts to survey, test, monitor and study the cemetery and disturbed remains to ascertain the location of and disposition of the subject remains and to insure their proper identification and perpetual care.

The Representative Plaintiffs also sought class action certification in two respects: (1) with regard to Counts I — III, the issue of whether Alderwoods properly-maintained its cemetery grounds and record keeping, sufficient to enable ready location of individuals who have been buried there; and (2) stand-alone certification status for the equitable and mandatory in-junctive relief in Count IY. They sought to certify and represent the following class:

All persons with family members buried before 1994 in the “old section” of Graceland Memorial Park South Cemetery, who are unable to readily locate the gravesites of their family members due to inadequate record keeping and identifying markers.

The Representative Plaintiffs moved for class certification on September 17, 2007. They proposed the foregoing class definition and requested certification of their equitable claims under Florida Rules of Civil Procedure 1.220(b)(1) and (b)(2) and certification of their claims for damages under Rule 1.220(b)(3).

Three years elapsed before the trial court heard this motion in February of 2011. Just prior to the hearing, the Representative Plaintiffs modified their class definition as follows:

All persons with burial plots or family members at Graceland Memorial Park South who were buried before 1994, that are unable to readily locate family members due to inadequate recordkeeping and identifying markers.

At the evidentiary hearing, the Representative Plaintiffs called the Cemetery’s manager, Yvette McPhillips, and also proffered as experts a funeral director, civil engineer, landscape architect, and an executive of a Canadian cemetery and funeral home company. These experts opined that the gridding and pinning of the cemetery grounds in the so-called “old section” did not comply with cemetery industry standards. They also stated that the manner in which to determine whether burials cannot be “readily located” is to carry out the “Examiner’s Action Plan,” which would require the Cemetery to engage in a multi-step process involving an individual examination of each grave. Such process would likely involve analyzing the records pertaining to each grave, looking at the physical aspects of the grave, and in certain instances, probing and opening the grave.

The trial court granted the Representative Plaintiffs’ motion and issued its Order Granting Class Certification on May 4, 2011. The Order certifies a class action on the claim for mandatory injunctive relief in Count IV under Rule 1.220(b)(1) and 1.220(b)(2), and “the underlying issue of liability” in Counts I — III, ie., “whether Defendants’ handling of record keeping, pinning, marking and locating gravesites at Graceland was appropriate^]” under Rule 1.220(b)(3). The court appointed Garcia, Johnson and Woodberry as class representatives and certified the following class:

Class definition: All persons with family members buried before 1994 in the “old section” of Graceland Memorial Park South Cemetery, who are unable to readily locate the gravesites of their family members due to inadequate record keeping and identifying markers.
This class definition excludes (1) all persons whose claims have been reduced to judgment as settled on the date this order is executed; and (2) Defendants’ officers, directors, employees or any person related to, affiliated with or employed by the Defendants.
This appeal followed.

II. ANALYSIS:

We review for an abuse of discretion an order granting class certification because the determination that a case meets the requirements of a class action is a factual finding within a trial court’s discretion. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91 (Fla.2011). However, purely legal determinations made in support of a class action certification decision are reviewed de novo. London v. Wal-Mart Stores, Inc., 840 F.3d 1246 (11th Cir.2003).

A. Claim for Permanent Mandatory Injunctive Relief

1. The procedure to be employed for determininy class membership would provide the Representative Plaintiffs with the ultimate in-junctive relief they seek

The unusual facts at issue here, together with the injunctive relief sought by the Representative Plaintiffs, present something of a conundrum. The method sought to be utilized to determine whether a class exists and to identify class members would require Alderwoods — at the outset of the case — to provide the Representative Plaintiffs with the very injunctive relief they seek in Count IV of their complaint.

As prayed for in Count IV, the Representative Plaintiffs seek a permanent mandatory injunction requiring Alderwoods to fund a court-supervised program through which a panel of experts would “survey, test, monitor and study the cemetery and disturbed remains to ascertain the location of and disposition of the subject remains and to insure their proper identification and perpetual care.” This relief, however, is virtually the very process ordered by the trial court to establish and identify members of the class. In response to an interrogatory, one of the Representative Plaintiffs provided the process for identifying members of the class:

Members of the class may be identified by appointing an Examiner to oversee a professional staff to replat and remap the cemetery, audit cemetery records, probe gravesites, conduct disinterments where necessary, review death certificates, and obituaries.

Further, one of the Representative Plaintiffs’ experts testified at the eviden-tiary hearing that the only way to determine whether one can “readily locate” a particular family member is to carry out a remediation plan which would involve laying a grid on the ground, conducting a topographic review, employing ground penetrating radar, and then going through the entire process of matching names with graves.

Thus, in certifying the class as persons with family members in the old section of the cemetery who cannot “readily locate” their family members’ gravesites due to inadequate record keeping and marking, and in ordering implementation of the Examiner’s Action Plan, the trial court in effect directed a verdict in favor of the Representative Plaintiffs as to Count IV. The class members will be identified only after Alderwoods carries out this protracted and costly procedure to determine whether, and the extent to which, graves were not readily loeatable. However, once Alderwoods completes this substantial undertaking, the Representative Plaintiffs are at liberty to abandon their Count IV claim, as they will have already obtained the relief prayed for in that count. Such a course of action would impose a de facto punishment on Alderwoods, before any determination of liability. See So. Bell Tel. & Tel. Co. v. Wilson, 305 So.2d 302, 305 (Fla. 3d DCA 1975) (reversing class certification on claims for damages and an accounting, holding “[i]t is clear that plaintiffs intend to use the accounting prayed for as a basis for a speculative class which they hope to develop. Such a proceeding is not within the intent of RCP 1.220.”); Liggett Group Inc. v. Engle, 853 So.2d 434, 451 (Fla. 3d DCA 2003), rev’d in part on other grounds 945 So.2d 1246 (Fla.2006) (“Florida law requires that a defendant be found liable before any punishment is imposed.”).

Additionally, the very act of requiring Alderwoods to reconcile burial space inventory and records creates a burden-shifting problem, as Alderwoods will essentially be compelled to prove (or at least assist in proving) elements of the Representative Plaintiffs’ claims. See Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 893 (7th Cir.2011)(affirming denial of class certification where “the contemplated injunction would essentially have the effect of shifting the burden to [defendant] to prove elements of the plaintiffs’ claims.”) The Representative Plaintiffs cannot be permitted to employ the trial court’s equitable powers to determine whether a class actually exists and to establish membership in that class, when the process for such a determination grants the ultimate, permanent and mandatory injunctive relief sought by the Representative Plaintiffs.

2. Principles of res judicata bar the claim for injunctive relief.

Alderwoods also contends that the doctrine of res judicata presents a fundamental barrier to the Representative Plaintiffs’ claim for injunctive relief because the subject matter of that claim was previously adjudicated on the merits in a prior administrative action. We agree.

The Supreme Court explained the doctrine of res judicata in Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1259 (Fla.2006):

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Id. (quoting Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001)). When the government brings an action in its parens patriae capacity, res judicata will bar litigation by private individuals seeking to redress acts that were settled in that prior action, even if the private individuals were not formal parties thereto. Young v. Miami Beach Imp. Co., 46 So.2d 26, 30 (Fla.1950) (finding citizens of Miami Beach were bound by a prior judgment enjoining the city from asserting any interest in a parcel of oceanfront property because the “judgment against [the] municipal corporation in a matter of general interest to all its citizens is binding on the latter, although they are not parties to the suit.”); Castro v. Sun Bank of Bal Harbour, 370 So.2d 392, 393 (Fla. 3d DCA 1979) (holding private parties were precluded from relitigating public nuisance and zoning violation claims already settled by the State). “In order to maintain [a parens patriae ] action, the State must articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party. The State must express a quasi-sovereign interest.” Engle, 945 So.2d at 1260 (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982)). To the extent, however, that a subsequent claim involves injuries to “purely private interests” — even if those interests arise from facts related to the State’s action — those claims will not be barred. Satsky v. Paramount Commc’ns, Inc., 7 F.3d 1464, 1470 (10th Cir.1993). Thus, litigation by a government agency will not preclude a private party from vindicating wrongs resulting in distinct individual injuries. Id.

In the instant case, the Department brought an administrative action against Osiris, the owner of the Cemetery, in its parens patriae capacity. In doing so, the Department unquestionably sought to protect “the rights or interests common to the public at large and thereby representing the citizenry of the State.” Engle, 945 So.2d at 1260. The Department brought the action pursuant to the Cemetery Act, Chapter 497, Florida Statutes. The chapter includes the following express legislative intent:

(1) The Legislature recognizes that purchasers of preneed burial rights, funeral or burial merchandise or funeral or burial services may suffer serious economic harm if purchase money is not set aside for future use as intended by the purchaser and that the failure to maintain cemetery grounds properly may cause significant emotional stress. Therefore, it is necessary in the interest of the public welfare to regulate preneed sales and cemeteries in this state.
(3) The Legislature deems it necessary in the interest of public health and safety to establish minimum qualifications for entry into the professions and occupations of embalming, funeral directing, cremation, direct disposition, and monument sales; to regulate such activities; and to provide for swift and effective discipline for those practitioners who violate the law.

§ 497.002(1), (3), Fla. Stat. (2011) (emphasis added).

The ultimate result of the Department’s action was a Final Order requiring the Cemetery to “reconcile its burial space inventory and burial rights ownership records at Graceland Memorial Park,” to “provide a Reconciliation Report to the Department of its findings and eorree-tionsf,]” and to “provide appropriate notification to any affected consumers.” Within two years from the date of the order, the Department would determine Osiris’s ongoing compliance with the Act, ensure that all deficiencies and violations discovered during previous examinations were corrected, and confirm that Osiris implemented policies and procedures to ensure future compliance with the Act. Furthermore, the Final Order specifically stated that “no future administrative or civil actions ... can be brought for the violations and acts resolved and settled herein.”

It is clear the Department brought that action pursuant to its statutory authority to regulate the cemetery industry and to protect public health and welfare. The action resulted in Osiris having to correct its faulty record keeping and ensure that every gravesite was properly marked and accounted for. Notwithstanding the foregoing, the Representative Plaintiffs in this case seek permanent mandatory injunctive relief that would effectively require Alder-woods to undertake these exact same actions — to correct and reconcile the cemetery records and identify the remains of each gravesite located in the “old section” of the Cemetery. Res judicata bars the Representative Plaintiffs from seeking a permanent mandatory injunction that would redress the same issues litigated in the administrative action.

B. The Remaining Claims Are Not Amenable to Class Action Treatment

The remaining claims of the complaint are: Tortious Interference with Dead Bodies (Count I); Intentional or Reckless Infliction of Emotional Distress (Count II); and Gross Negligence (Count III), each of which seeks monetary damages. The mere fact that a complaint contains such claims does not prohibit class certification when the other claims demonstrate that the predominant relief sought is injunctive or equitable. Freedom Life Ins. Co. of Am. v. Wallant, 891 So.2d 1109 (Fla. 4th DCA 2004); See also Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998). However, because class certification fails for the mandatory injunctive relief claim (Count IV) and is barred by res judicata, class certification for these remaining claims must fail as well, given that the relief sought is individual money damages.

Further, these remaining claims require highly individualized proof and are not amenable to class treatment. The United States Supreme Court has held that “[c]onsidering whether ‘questions of law or fact common to class members predominate’ begins ... with the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., — U.S. -, -, 131 S.Ct. 2179, 2184, 180 L.Ed.2d 24 (2011) (quoting Fed.R.Civ.P. 23(b)(3)).

In the three remaining counts, the Representative Plaintiffs allege they each suffered emotional distress as a result of Alderwoods’ extreme, outrageous, or willful and wanton conduct. In a cause of action for emotional distress, for example, establishing the claim “requires not only actual injury and compensatory damages, but also a showing of proximate causation and proof that the particular plaintiff suffered severe emotional distress.” Liggett Group, Inc., 853 So.2d at 453, rev’d in part on other grounds, 945 So.2d 1246 (Fla.2006). Such issues involve highly individualized determinations which cannot be established through common proof and are therefore not amenable to class treatment. Id.; Engle, 945 So.2d at 1269.

Similarly, tortious interference with a dead body requires proof of the defendant’s unlawful interference with a dead body. See Kirksey v. Jernigan, 45 So.2d 188, 189-90 (Fla.1950); Donigan v. Nevins, 785 So.2d 573, 576 (Fla. 4th DCA 2001). The Representative Plaintiffs cannot establish through common proof that the Cemetery physically interfered with each body in the old section. Even if, for example, removing the lid from the outer burial of Eloísa Garcia is deemed unlawful interference, this in no way establishes that the Cemetery interfered with the remains of the family members of Woodber-ry, Johnson, or any other putative class member.

Finally, a claim for gross negligence requires proof of willful and wanton conduct by Alderwoods, or proof of some physical injury. See Gonzalez v. Metro. Dade Cnty. Pub. Health Trust, 651 So.2d 673, 676 (Fla. 3d DCA 1995). Evidence that Alderwoods was unable to readily locate one specific gravesite in no way establishes that Alderwoods acted willfully or with malicious intent toward the entire putative class. This would have to be established on an individual basis.

In the absence of a certification of the injunctive relief claim, it is evident that the predominant (and perhaps exclusive) relief sought on the remaining claims is for individual damages for emotional distress and mental anguish, defying class treatment. Engle, 945 So.2d at 1269-70; Wallant, 891 So.2d at 1117-1118.

Based on the foregoing, the Representative Plaintiffs cannot establish entitlement to relief based on common proof. There is simply no common evidence that can substitute for the fact-intensive, individualized proof that will be required to establish each plaintiffs claim under each set of unique facts and circumstances.

III. CONCLUSION

For the reasons stated above, we reverse the trial court’s order granting class certification and remand for proceedings consistent with this opinion.

      . This section of the Cemetery Act was subsequently repealed. See Ch. 2006-2, § 15, Laws of Fla.

      . At her deposition, McPhillips testified that the Cemetery encountered problems locating persons buried in the old section of the cemetery prior to 1994 due to the fact that the Cemetery’s records were unclear, its method of numeration changed with successive owners, and the pins used to identify spaces did not correlate to the records. Thus, the Cemetery had difficulty pinpointing the exact locations where persons were buried and instead could only point to a general area.

      . It was alleged during the hearing below that this process would take more than three years to complete, at a cost of more than six million dollars.

      . The application of res judicata at the class certification stage is a question of law to be reviewed de novo. Engle v. Liggett Group, Inc., 945 So.2d 1246, 1259 (Fla.2006).

      . Although the Supreme Court has not yet expressly defined the term "quasi-sovereign,” it is clear that a state must be "litigating the rights or interests common to the public at large and thereby representing the citizenry of the State.” Engle, 945 So.2d at 1260 (citing Satsky v. Paramount Commc'ns, Inc., 7 F.3d 1464, 1470 (10th Cir.1993)). The "state may not sue to assert the rights of private individuals.” Id.

      . Because the Department had no standing to raise or pursue these purely private interests, plaintiffs are not barred from seeking damages, on an individual basis, for the claims alleged in Counts I — III.

      . The complaint does not allege physical impact or injury as a part of any of these claims.

      . Although we do not reach this issue, we note that there is subjectivity and uncertainty inherent in the class definition in this case. The trial court certified the class as follows:
      All persons with family members buried before 1994 in the "old section” of Graceland Memorial Park South Cemetery, who are unable to readily locate the gravesites of their family members due to inadequate record keeping and identifying markers.
      Class members must be readily discoverable because they may be bound by a judgment for defendants, despite their lack of participation in or knowledge of the proceeding. Costin v. Hargraves, 283 So.2d 375, 377 (Fla. 1st DCA 1973). Thus, "the class sought to be represented must be adequately defined and clearly ascertainable." DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970). Elements of defining a particular class include: "(1) specifying a particular group that was harmed during a particular time frame, in a particular location, in a particular way; and (2) facilitating a court’s ability to ascertain its membership in some objective manner.” Foster v. D.B.S. Collection Agency, 2002 WL 484500, at *3 (S.D.Ohio, 2002). Where a "prolonged and individualized analytical struggle" is necessary to establish class membership, class certification is improper. In re Agric. Chem. Antitrust Litig., 1995 WL 787538, at * 2 (N.D.Fla.1995). See also Metcalf v. Edelman, 64 F.R.D. 407, 409 (N.D.Ill.1974)(holding "[a] class must be capable of concise and exact definition”)
      Membership in the instant class rests on a series of factual determinations: 1) Is the deceased individual a "family member” of the plaintiff? 2) Can the plaintiff “readily locate” the gravesite of the family member? 3) If the gravesite cannot be readily located, is this due to "inadequate record keeping and identifying markers”? One or more of these inquiries will likely raise additional questions to be answered. As an example: How do we determine whether a gravesite can be "readily located”? Must it be located within a specific number of hours, or days? If an incorrect gravesite location is initially provided but the error is quickly corrected, does that mean that the gravesite was readily located, or does a family member have to be directed to a certain number of incorrect (or unlocatable) gravesites before it can be said the gravesite cannot be readily located?
      The various ways in which these questions can conceivably be answered, and the subjective nature of the phrase "readily locate” suggests the class definition is flawed because "the court cannot determine the identity of the members of the class or even the size of the class without inquiring into the facts surrounding” each attempt to readily locate the gravesite. See So. Bell Tel. & Tel. Co. v. Wilson, 305 So.2d 302, 304 (Fla. 3d DCA 1974). Because elements of the proposed class definition "would essentially require a mini-hearing on the merits of each class member’s case," the definition is legally deficient. Sanneman v. Chrysler Corp., 191 F.R.D. 441, 446 (E.D.Pa.2000). See also Crosby v. Social Sec. Admin. of U.S., 796 F.2d 576, 579-580 (1st Cir.1986)(use of phrase “within a reasonable time” as part of class definition fails to satisfy the basic requirements for a class action under Rule 23 of the Federal Rules of Civil Procedure where class members are "impossible to identify prior to individualized fact-finding and litigation!.]”). We recognize, of course, that a class definition may be revised or modified in an effort to cure these infirmities. See e.g., Sonic Auto., Inc. v. Galura, 961 So.2d 961 (Fla. 2d DCA 2007).


author: EVANDER, J.

text:
    Jeannette CARYI n/k/a Jeannette Colado, Appellant, v. Steven M. CARYI, Appellee.
    No. 5D12-4016.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 2013.
    Rehearing Denied Aug. 21, 2013.
    Charles W. Willits, Orlando, for Appellant.
    Mark P. Lang and Ja’Wand Joi Barkley, of Mark Lang & Associates, Winter Park, for Appellee.
   EVANDER, J.

The former wife, Jeannette Caryi, n/k/a Jeannette Colado, appeals an order denying her motion for attorney’s fees incurred in a post-judgment action to establish the former husband’s child support obligation. The record establishes that the former husband’s net income and net worth far exceed that of the former wife. Notwithstanding, the trial court denied the former wife’s attorney’s fees request, determining that: (1) based on this court’s decision in Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987), attorney’s fees were not recoverable because the proceeding was in the nature of a declaratory.judgment action; (2) the attorney’s fees provision in the parties’ marital settlement agreement precluded an award of attorney’s fees; and (3)the former wife did not have a need for an award of attorney’s fees because her parents had provided funds to pay for litigation expenses. We reverse.

The parties married on September 16, 2000 and separated on or about August 24, 2004. Two children were born of the marriage. A final judgment of dissolution of marriage was entered on November 29, 2005, and incorporated the parties’ marital settlement agreement (MSA). The MSA provided, in relevant part, that:

(1) The former wife would be designated as the primary residential parent;

(2) The former husband would be entitled to have frequent contact with the minor children pursuant to an agreed-upon time sharing schedule;

(3) Commencing November 10, 2005, the former husband would pay the former wife “unallocated family support” in the amount of $4,750 per month with the last such payment being due on or before July 10, 2009, and $3,750 per month of “unallocated family support” from August 10, 2009 through July 10, 2010;

(4) Upon the termination of the former husband’s unallocated family support payments, the former husband would pay the former wife child support in an amount to be calculated in accordance with Florida child support guidelines; and

(5)If the parties were unable to agree on a child support amount, the former husband would pay the former wife $1,500 per month child support until the matter was resolved either by the court or by agreement of the parties.

As the July 10, 2010 date for termination of the unallocated family support payments approached, the parties exchanged financial affidavits and (unsuccessfully) attempted to negotiate a child support amount.

Ultimately, both parties filed petitions seeking the establishment of a child support amount. It would be an understatement to say that throughout much of the proceedings, the former husband, a real estate developer, was not forthcoming as to the true nature of his financial condition. In his October 26, 2010 financial affidavit, the former husband declined to provide any information as to his net worth and averred that his net monthly income was $3,162.60. After being compelled by the court to provide information regarding his net worth, the former husband eventually filed an amended financial affidavit reflecting that his net worth was approximately $4.6 million — an amount that far exceeded his net worth at the time of the dissolution of marriage. However, even in his amended financial affidavit, the former husband continued to maintain that he had little or no income. After the evidentiary hearing held on the former husband’s amended petition to establish child support, the trial court found that the former husband’s net income was to be calculated at $25,000 per month for the purpose of determining child support.

By contrast, the former wife’s financial affidavit reflected that her liabilities exceeded the value of her assets. Virtually her only asset was her residence — valued by the trial court at $200,000. The first mortgage encumbering her residence was $313,562. The trial court further found that the former wife’s net income from her employment was $1,877 per month. An additional $1,900 per month income was imputed to her based on ongoing financial support that she was receiving from her parents.

After taking into account the parties’ time-sharing arrangements and health insurance costs, the former husband was ordered to pay $2,608.30 per month child support, effective August 10, 2010. Neither party has appealed that determination.

As previously noted, the trial court denied the former wife’s motion for attorney’s fees on three different grounds. We will address each separately.

Flanders v. Flanders

Pursuant to section 61.16(1), Florida Statutes (2010),

[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.

The trial court, however, determined that this case was essentially an equitable declaratory proceeding to enforce the MSA and, therefore, was governed by Flanders, rather than section 61.16. We disagree.

In Flanders, pursuant to the terms of a marital settlement agreement that had been incorporated into the final judgment of dissolution, the parties sold certain jointly owned property. When the parties could not agree as to the distribution of the sale proceeds, the former wife filed a Petition for Accounting and for Equitable Distribution of Property Proceeds. The trial court then construed the agreement, ordered a distribution of proceeds pursuant to the interpretation, and granted the former wife’s request for attorney’s fees under section 61.16. This court reversed, concluding that section 61.16 was not applicable because the action below was “merely an equitable declaratory proceeding to construe the parties’ property agreement and to enforce it.” Flanders, 516 So.2d at 1092.

Flanders is readily distinguishable. The instant case was not an equitable declaratory action to resolve the distribution of proceeds from the sale of jointly owned property. Rather, it was a proceeding to establish a child support obligation — the type of action that falls squarely within the ambit of section 61.16. Additionally, we question (but need not resolve) the continuing viability of Flanders in light of the Florida Supreme Court’s later decision in Bane v. Bane, 775 So.2d 938 (Fla.2000). There, the supreme court determined that section 61.16 authorized an award of attorney’s fees to a party that was successful on a motion to set aside a property settlement agreement filed pursuant to Florida Rule of Civil Procedure 1.540(b). In doing so, the court emphasized that section 61.16 should be “liberally — not restrictively— construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties.” Bane, 775 So.2d at 943 (quoting Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997)).

Marital Settlement Agreement

In denying the former wife’s motion for attorney’s fees, the trial court also determined that an award of attorney’s fees was prohibited by the following provision in the parties’ 2005 marital settlement agreement:

The parties shall each be responsible for his or her own attorneys’ fees and costs associated with this matter.

Again, we disagree with the trial court’s analysis. Waiver is “the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs. v. Saldukas, 896 So.2d 707, 710 (Fla.2005). When an attorney’s fees provision in a marital settlement agreement does not contain specific language waiving attorney’s fees in future enforcement or modification proceedings, Florida courts have found that these fees are not waived. Tucker v. Greenberg, 674 So.2d 807, 810 (Fla. 5th DCA 1996) (provision in marital settlement agreement specifying that each party was responsible for their own attorney’s fees but could recover from a party contesting or failing to abide by the agreement did not preclude award of attorney’s fees in modification proceeding); Hughes v. Hughes, 553 So.2d 197, 198-99 (Fla. 2d DCA 1989) (holding that provision in parties’ marital settlement agreement requiring parties to pay their own attorney’s fees and costs did not apply to proceedings to modify child support).

Here, there was no language in the MSA reflecting an intent by either party to waive the right to seek an attorney’s fee award in a subsequent action to establish the former husband’s child support obligation upon the termination of his obligation to pay unallocated family support.

Former Wife’s Need

The purpose of section 61.16 is to ensure that both parties have similar ability to secure legal counsel. Kelly v. Kelly, 925 So.2d 364, 368 (Fla. 5th DCA 2006). However, a litigant should not have to deplete his or her assets in order to pay legal fees when the other party has a far superior financial ability to pay for these costs. Id. at 368-69.

In the instant case, the trial court’s conclusion that the former wife did not have a “need” for an award of attorney’s fees is not supported by the record. The litigation below was contentious and protracted, in significant part because of the former husband?s reluctance to fully and accurately disclose his financial status. While the evidence did establish that the former wife’s parents had provided the funds to pay her litigation expenses, the uncontro-verted testimony was that those monies were provided as a loan. The fact that the former wife had not repaid any of the monies as of the date of the evidentiary hearing on the petition to establish child support is, under the facts of this case, indicative of the former wife’s inability to do so and not, as the former husband argues, substantial proof of a gift.

On remand, the trial court is directed to award the former wife the entire amount of attorney’s fees she reasonably incurred in those proceedings below relating to the establishment of the former husband’s child support obligation.

REVERSED and REMANDED.

PALMER and COHEN, JJ., concur.

      . The standard of review for an award or denial of attorney’s fees in a dissolution of marriage action is abuse of discretion. Gunn v. Ubbels, 101 So.3d 420 (Fla. 5th DCA 2012). However, to the extent that the trial court based its rulings on its interpretation of the law, a de novo standard of review applies. Thorpe v. Myers, 67 So.3d 338, 342 (Fla. 2d DCA 2011) (reviewing de novo trial court's denial of request for attorney’s fees in guardianship action based on interpretation of statute).

      . Our standard of review on this issue is also de novo. See Muir v. Muir, 925 So.2d 356, 358 (Fla. 5th DCA 2006) ("Interpretation of a marital settlement agreement is a matter of law and places the appellate court on an equal footing with the trial court as an interpreter of the written document.”).


text:
    C.B., Father of A.B., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-3054.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2013.
    Jeffrey L. Barrett, Jacksonville, for Appellant.
    Drew Parker, General Counsel, Department of Children and Families, Tallahassee; Ward L. Metzger, Children’s Legal Services, Jacksonville; Kelley Schaeffer, Guardian ad Litem Program, Sanford, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b). This dismissal is without prejudice to appellant’s right to seek relief in the trial court. See Interest of E.H., 609 So.2d 1289, 1290-1291 (Fla.1992).

THOMAS, ROWE, and SWANSON, JJ., concur.