author: GRIFFIN, J.

text:
    BERMUDA DUNES PRIVATE RESIDENCES, etc., Appellant, v. BANK OF AMERICA, Appellee.
    No. 5D12-4218.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.
    Scott C. Davis, Michael H. Casanover and Jacob A. Brainard, of Business Law Group, P.A., Tampa, for Appellant.
    Robin Bresky and Jonathan Mann, of Law Offices of Robin Bresky, Boca Raton, and Avri Ben-Hamo, of Aldridge Connors, LLP, Boca Raton, for Appellee.
   GRIFFIN, J.

Bermuda Dunes Private Residences Condominium Association, Inc. [“Bermuda Dunes”] appeals the entry of summary final judgment in favor of Bank of America in an action that arose out of a dispute over unpaid, past-due condominium assessments. Bermuda Dunes argues that the trial court erred in entering summary final judgment, asserting that there exists a material issue of fact regarding the capacity in which Bank of America took title to a condominium unit, and that Bank of America is not entitled to judgment as a matter of law on the issue of whether its liability for the assessments is limited pursuant to section 718.116, Florida Statutes.

Through an amended complaint, Bank of America requested: (Count I) judgment requiring Bermuda Dunes to issue an es-toppel certificate that complies with the limited liability protection afforded under section 718.116(l)(b), Florida Statutes; (Count II) declaratory judgment as to its rights under section 718.116(l)(b), Florida Statutes; and (Count III) judgment for damages, costs, and attorney’s fees pursuant to section 718.303(l)(a), Florida Statutes. Bank of America alleged in part:

6. Plaintiff acquired title of the Property as the first mortgagee or its assignee or successor in a foreclosure proceeding in Orange County, Florida.
7. The original amount of the mortgage was $255,120.00; and it was recorded on June 5, 2007, [sic] in Official Records Book 09288, at page 1799, of the Public Records of Orange County. A copy of said mortgage is attached hereto as Exhibit “A” and incorporated herein.
8. Plaintiff is an assignee of the first mortgagee by virtue of an Assignment of Mortgage recorded on January 6, 2010, in Official Records Book 9983, at page 5705, of the Public Records of Orange County. A copy of the Assignment is attached as Exhibit “B” and incorporated herein.
9. Final Judgment of Foreclosure was entered August 10, 2010, granting Plaintiff a lien in the foreclosed amount which is superior to any right, title, interest, or claim of the Defendant. The Judgment was recorded on August 16, 2010, in Official Record Book 10090, at Page 0055, of the Public Records of Orange County. A copy of the Final Judgment of Foreclosure is attached hereto as Exhibit “C” and incorporated herein. 10. Plaintiff owns the property located at 7250 Westpointe Boulevard, # 1024, Orlando, Florida 32835-6506 (hereinafter “the Property”), by virtue of a Certificate of Title recorded on November 2, 2011, in Official Records Book 10289, at Page 2008, of the Public Records of Orange County. A copy of the certificate is attached as Exhibit “D” and incorporated herein.
11. Defendant is the condominium association governing the Property, and was joined as a defendant in the initial foreclosure action in which Plaintiff acquired title.
12. Plaintiff, in preparation of entering into a contract of sale for the Property as “seller” with a non-party “buyer,” requested an estoppel request from Defendant in preparation for the sale.
13. Plaintiff, as an assignee or successor of the first mortgagee of the foreclosed Property, is protected under Fla. Stat. § 718.116(l)(b) and required to pay the Defendant the lesser of 1% of the original mortgage, or the last 12 months of unpaid common expenses and regular periodic assessments which came due or accrued before Plaintiffs acquisition of title and which were not paid by the previous owner.
14. Defendant has issued a letter demanding payment from the Plaintiff.
15. In defiance of Florida law, Defendant has refused to account for the protection provided to Plaintiff under the safe harbor provisions of Fla. Stat. § 718.116 and demanded a total amount of $17,987.84, a copy of which is attached hereto as Exhibit “E” and incorporated herein.
16. Plaintiff has provided Defendant with an explanation of the safe harbor provision of Fla. Stat. § 718.116, and the limited liability afforded to first mortgagees or their successors or assigns for past arrearages.
17. This equals $2,551.20 (one percent of the original mortgage) for arrearages, plus assessments subsequent to Plaintiff taking title.

The mortgage, which is attached to the amended complaint, names Bank of America, N.A. as the “Lender” and provides in part: “Lender is the mortgagee under this Security Instrument.” An assignment of mortgage, which also is attached to the amended complaint, provides in part:

THAT BANK OF AMERICA, N.A.
Residing or located at C/O BANK OF AMERICA MORTGAGE, 475 CROSS-POINT PARKWAY, GETZVILLE, N.Y. 14068-9000 herein designated as the assignor, for and in consideration of the sum of $1.00 Dollar and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell, assign, transfer and set over unto FEDERAL HOME MORTGAGE CORPORATION residing or located at: C/O BANK OF AMERICA MORTGAGE, 475 CROSS-POINT PARKWAY, GETZVILLE, N.Y. 14068-9000 herein designated as the assignee, the mortgage executed by MAIKA MARTINEZ AND SALVADOR MARTINEZ, WIFE AND HUSBAND recorded in ORANGE County, Florida at book 9288 and page 1799 encumbering the property more particularly described as follows: CONDOMINIUM UNIT 1024, BERMUDA DUNES PRIVATE RESIDENCES ...
together with the note and each and every other obligation described in said mortgage and the ■ money due and to become due thereon
TO HAVE AND TO HOLD the same unto the said assignee, its successors and assigns forever, as of the 2nd day of September, 2009, but without recourse on the undersigned.

The final judgment of foreclosure, which is attached to the amended complaint, names Federal Home Loan Mortgage Corporation as the “Plaintiff.” A certificate of title for the foreclosed property, namely Condominium Unit 1024, is attached to the amended complaint, and provides that the property was sold to Bank of America.

On April 30, 2012, Bermuda Dunes filed a motion to dismiss, asserting that Federal Home Loan Mortgage Corporation was the first mortgagee of the property “via an assignment of mortgage,” and that “[t]he exhibits to BoA’s Amended Complaint clearly evidence that BoA [was] not the assignee nor the successor to the first mortgagee.” The trial court denied the motion on July 3, 2012.

Thereafter, on July 5, 2012, Bermuda Dunes filed an answer and affirmative defense. As an affirmative defense, Bermuda Dunes asserted:

Florida Statute § 718.116(l)(b)(l) applies solely to a first mortgagee, its successor or assignee. On December 9, 2009 BANK OF AMERICA assigned away its interest in the mortgage recorded at book 9288 page 1799 in the Orange County Official Records, therefore it no longer fall [sic] under the purview of Florida Statute § 718.116(l)(b)(l) but rather falls under the purview of Florida Statute § 718.116(l)(a).

Bank of America thereafter filed a motion for summary final judgment on Counts I and II, and for attorney’s fees and costs. On September 11, 2012, the trial court conducted a hearing on Bank of America’s motion for summary final judgment.

At the hearing, Bank of America’s counsel argued that “Freddie Mac” brought the foreclosure action “as servicer on behalf of Bank of America.” He asserted: “So this is actually a case where Bank of America still owns the note and mortgage. Freddie Mac owns it — or holds it for the— for the sake of actually filing this foreclosure.” Bermuda Dunes’ counsel countered that there existed a dispute of fact regarding the capacity in which Bank of America took title to the property, and additionally that it seemed as if Bank of America was “just a third party” when it took title via the foreclosure. He asserted: “There’s no documents to suggest that Bank of America has any remaining interest in this note and mortgage. In fact, the document suggests to the contrary, that Bank of America has assigned that interest to somebody else. So they’re no longer the first mortgagee.”

The trial court interjected: “I’ve got to look at the record evidence. What is in the record to show that Freddie Mac was the servicer for the Plaintiff versus an asignee [sic]?” Bank of America’s counsel pointed out that he had asked the trial court to take judicial notice of the underlying foreclosure, asserting: “So the Court is permitted to take judicial notice of the entire court file. In that court file, there’s an assignment of mortgage to Freddie Mac from Bank of America allowing Freddie Mac to bring the foreclosure on their behalf.”

Referencing paragraph 5 of the complaint in the underlying foreclosure action as well as the assignment of mortgage, Bermuda Dunes’ counsel asserted:

It appears to be Counsel’s position that Federal Home Loan Mortgage, or Freddie Mac, as in Paragraph 5 ... states that plaintiff, as the servicer for the owner and acting on behalf of the owner with the authority to do so, is the present designated holder of the note and the mortgage with authority to pursue this action.
So you have an allegation that says the present designated holder is Freddie Mac. You have an assignment that says that Bank of America does hereby bargain, assign, grant, sell, et cetera, et cetera.

Additionally, he asserted:

But then there’s a — there’s a mysterious other document out there, Your Honor, that we don’t have in front of us that’s not part of the evidence that — that automatically transfers back whatever interest that Freddie Mac had in the note and the mortgage back to Bank of America. That’s what Counsel’s arguing. And there — there’s nothing that supports that.

The trial court said: “What I think they’re arguing is that basically Freddie Mac was their agent for the purpose of the foreclosure. Once they completed then-task, it returned back. They stepped aside.” Bermuda Dunes’ counsel inquired: “Where’s the documents that support that sort of relationship?” He added:

The — the documents that are of the record state you have an allegation in a mortgage foreclosure complaint, and you have a — not a contingent assignment. You have a pure assignment of mortgage from Bank of America to Freddy [sic] Mac. There’s nothing in there that says this assignment becomes null and void upon the foreclosure sale or this automatically reverts back. I mean, you can get into some pretty complicated secured transactions where you can have all kinds of contingencies like that.

Bank of America’s counsel asserted:

Your Honor, this case that I’ve put on the record, Oriole Golf & Tennis Club is this set of facts to a T. The only difference is in this case it was Fannie Mae instead of Freddie Mac, but we’re dealing with the same pattern here. And essentially, what the case discusses is that you don’t actually have to be the owner and holder when you bring— when you bring the foreclosure, the ser-vicer can act on behalf of the actual first ... mortgagee; and there doesn’t need to be another document advancing the rights back to the original mortgagee. The servicer brings the foreclosure. That’s the point of the fore — of—of their servicing rights. It’s in their pooling and servicing agreement that is really not necessary for—

Upon being asked by the trial court “where is it in the record,” Bank of America’s counsel pointed to the assignment of mortgage as well as the mortgage. Bermuda Dunes’ counsel confirmed, upon inquiry by the trial court, that Bermuda Dunes agreed for purposes of the hearing that the documents were authentic. With respect to the documents, Bank of America’s counsel asserted: “The fact that the mortgage, which is already part of the record, Your Honor, shows that my client is the first mortgagee. The statute does not require that the first mortgagee actually bring the foreclosure. It only requires that it take — it take via foreclosure

The trial court granted Bank of America’s motion for summary judgment, providing:

All right. All right. I’m going to grant the summary judgment because you’ve stipulated to the authenticity of the records; but I’ll just tell you, technically, I think the information that’s there to support your motion for summary judgment, the way on — on how I read the language of the statute, my concern is you haven’t dotted your I’s and crossed your T’s in making your record, okay?
But because opposing counsel has stipulated to the authenticity of the records that I can consider before this, I'll grant it, okay?

Upon request by counsel for Bermuda Dunes, the trial court elaborated:

Yeah. I — well—and as I read the statute, the plain reading of the statute, I think it permits the first mortgage — the first mortgagee, in this case the Plaintiff, to pursue this action through a ser-vicer or a company such as Freddie Mac or Fannie Mae. I don’t think that eliminates Bank of America’s, in this situation, right to pursue it, okay, under 718.116.

When asked by Bermuda Dunes’ counsel: “In their capacity as an — as the original lender; is that what you’re saying?,” the trial court responded: “Correct, as the first mortgagee.”

On September 27, 2012, the trial court entered summary final judgment in favor of Bank of America, providing in part:

1. Plaintiffs Motion for Summary Final Judgment on Counts 1 and 2, Attorney’s Fees and Costs, and Affidavit in Support Thereof is GRANTED.
4. That per Rule 1.510, the Plaintiff, is seeking a Summary Final Judgment against the Defendant.
5. There are no genuine issues of material fact in this case wherefore the only determination for the Court to make is whether the Defendant has failed to comply with Florida Statute 718.116.
6. Plaintiff is an assignee of the first mortgagee by virtue of an Assignment of Mortgage recorded on August 26, 2009, in Official Records Book 23410, at page 639, of the Public Records of Orange County. The unpaid assessments due to Defendant is limited by Fla. Stat. § 718.116(l)(b), to the lesser of twelve months of unpaid common expenses or one percent of the original mortgage debt.
7. Plaintiff acquired the property located at 7250 Westpointe Blvd., # 1024, Orlando, Florida (hereinafter “the Property”), by virtue of a Certificate of Title recorded on November 2, 2011 in Official Records Book 10289 at Page 2008 of the Public Records of Orange County....
8. That Plaintiff, as a successor or as-signee of the first mortgagee of the foreclosed Property, is protected under Fla. Stat. § 718.116(l)(b) and required to pay the Defendant the lesser of 1% of the original mortgage, or the last 12 months of unpaid common expenses and regular periodic assessments which came due or accrued before Plaintiffs acquisition of title and which were not paid by the previous owner.
11. Defendant stipulated to the authority of the documents presented by the Plaintiff in support of its Motion for Summary Final Judgment.
12. This Court finds that the Plaintiff is entitled to Summary Final Judgment that is limited to the amount specified in this Judgment.

(Emphasis added).

The protection provided under section 718.116(l)(b)l., Florida Statutes, which limits the liability for unpaid condominium unit assessments, forms the basis for Bank of America’s amended complaint. Section 718.116(l)(b)l. provides:

The liability of a first mortgagee or its successor or assignees who acquire title to a unit by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became due before the mortgagee’s acquisition of title is limited to the lesser of:
a. The unit’s unpaid common expenses and regular periodic assessments which accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association; or
b. One percent of the original mortgage debt. The provisions of this paragraph apply only if the first mortgagee joined the association as a defendant in the foreclosure action. Joinder of the association is not required if, on the date the complaint is filed, the association was dissolved or did not maintain an office or agent for service of process at a location which was known to or reasonably discoverable by the mortgagee.

Bermuda Dunes contends that there exists a material issue of fact regarding the capacity in which Bank of America took title to the condominium unit. Bank of America asserts that it is undisputed that (1) Bank of America was the first mortgagee, (2) Federal Home Loan Mortgage Corporation brought the foreclosure action as servicer of the note and mortgage on behalf of Bank of America, and (3) Bank of America never gave up its ownership of the note and mortgage. However, review of the mortgage, assignment of mortgage, and final judgment of foreclosure, as well as the certificate of title, all of which are contained in the record as attachments to Bank of America’s amended complaint, reveal the following chronological facts: (1) Bank of America was the first mortgagee, (2) Bank of America assigned the mortgage and note to Federal Home Mortgage Corporation, (B) the trial court entered final judgment of foreclosure in favor of Federal Home Loan Mortgage Corporation, and (4) Bank of America took title to the condominium unit as a result of the unit being sold to it for the price of $40,500.00.

First, although Bank of America argued below that it took title to the condominium unit through foreclosure as the first mortgagee based upon its assertion that it merely assigned to Federal Home Mortgage Corporation the right to service the mortgage, it did not carry its burden of presenting evidence of such. The assignment of mortgage simply reveals that Bank of America assigned the mortgage and note to Federal Home Mortgage Corporation, including all of the attendant rights and obligations. The key is who had rights and obligations under the mortgage at the time of foreclosure, whether as a first mortgagee or as a successor or assignee. If that entity takes title to the condominium unit by the foreclosure, its liability for unpaid, past-due assessments is limited pursuant to section 718.116(l)(b)l. Here, based upon the record evidence, the entity having rights and obligations under the mortgage at the time of foreclosure was Federal Home Loan Mortgage Corporation as assignee of the mortgage, not Bank of America. Although Bank of America took title to the condominium unit by foreclosure, the record does not show that it did so as first mortgagee.

Although the affidavit filed in support of Bank of America’s motion for summary judgment contains the sworn statement that the final judgment of foreclosure was entered, granting Bank of America a lien in the foreclosed amount, the final judgment of foreclosure that is in the record refutes the sworn statement. In the final judgment of foreclosure, Plaintiff, named as “FEDERAL HOME LOAN MORTGAGE CORPORATION, C/O BANK OF AMERICA MORTGAGE, 475 CROSS-POINT PARKWAY, GETZVILLE, N.Y. 14068-9000,” was granted the lien. The confusion in this record is compounded by the fact that the trial court’s order contains an express finding that Bank of America was an assignee of the first mortgagee and, as such, is protected by section 718.116(l)(b). Bank of America concedes on appeal that this key finding of the judgment is a “factual misunderstanding or misstatement” by the trial court because the assignment is from Bank of America to Federal Home Mortgage Corporation. There indeed is no suggestion in the record that Bank of America is an assignee or successor of the first mortgagee. It appears, however, that the provenance of this “mysterious” factual “misunderstanding” or “misstatement” by the trial court has its source in the very complaint Bank of America filed to commence this action where, in paragraphs 8 and 13, Bank of America expressly alleged that Bank of America is “an assignee of the first mortgagee” by virtue of the assignment attached to the complaint. This is the assignment that shows Bank of America to be the assignor to Federal Home Mortgage Corporation.

Bank of America alternatively asserts that, even if the assignment of mortgage transferred to Federal Home Mortgage Corporation all of its rights and obligations as first mortgagee, section 718.116, Florida Statutes, did not require it to hold the mortgage at the time Federal Home Loan Mortgage Corporation initiated the foreclosure action; it was sufficient that, once upon a time, it was the first mortgagee. Although Bank of America asserts that Bermuda Dunes “fails to point to any requirement in the statute that the ownership of the mortgage at issue be continuous,” it is necessarily the entity having rights and obligations under the mortgage at the time of foreclosure, whether as a first mortgagee or as a successor or as-signee, that is the key factor. If Bank of America assigned away its rights as first mortgagee, it is no longer the first mortgagee and is not entitled to the benefit of the statute. Here, based on the current record, the Federal Home Loan Mortgage Corporation has succeeded Bank of America as the first mortgagee. The trial judge should have trusted her first instincts. To say that Bank of America had not “dotted their i’s and crossed their t’s” in making a record to support judgment in their favor is an understatement. It was error to enter summary final judgment in favor of Bank of America.

REVERSED and REMANDED.

EVANDER and BERGER, JJ., concur.

      . Federal Home Loan Mortgage Corporation is referred to as "Freddie Mac.”

      . Oriole Golf & Tennis Club Condo. One J Ass'n, Inc. v. Calbo, No. 03-CIV-21883, 2004 WL 6039691 (S.D.Fla. Jan. 22, 2004).

      . Attached to the amended complaint is an assignment of mortgage, dated December 9, 2009, which bears a stamp with a recording date of "1/06/2010.”

      . While the assignment of mortgage names "Federal Home Mortgage Corporation” as the assignee, and the final judgment of foreclosure names "Federal Home Loan Mortgage Corporation” as the "Plaintiff,” it appears that the entities are one in the same.


source: Caselaw Access Project

license: Public Domain

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Randall CORCORAN, Respondent.
    No. 5D13-1394.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.

      Stephen D. Hurm, General Counsel and Kimberly A. Gibbs, Assistant General Counsel, Orlando, for Petitioner.
    William R. Ponall, of Snure '& Ponall, P.A., and Matthew P. Ferry, of Law Offices of Warren W. Lindsey, Winter Park, for Respondent.
   GRIFFIN, J.

Petitioner, Department of Highway Safety and Motor Vehicles [“Department”], seeks certiorari review of the decision of the Circuit Court for the Ninth Judicial Circuit, entered while sitting in its appellate capacity, that granted Respondent, Randall Corcoran’s [“Corcoran”] first-tier petition for writ of certiorari, thereby quashing a Department hearing officer’s final order suspending Corcoran’s driver’s license. For the reasons that follow, we grant the petition and quash the circuit court’s order.

On June 17, 2012, at approximately 2:04 a.m., Officer Raymond Link pace-clocked and subsequently conducted a traffic stop on a vehicle traveling 60 mph in a posted 45 mph speed zone. Officer Link approached the vehicle and advised the sole occupant, Corcoran, of his reason for making the stop. Corcoran was unable to provide either his vehicle registration or his proof of insurance. Officer Link observed signs of impairment while speaking to Corcoran; his eyes were red and glassy and there was a strong odor of alcohol. Corcoran stated that he was coming from a restaurant where he had two glasses of white wine and that he had been to a concert at the Amway Center, where he had one beer. Officer Link conducted field sobriety exercises and, based on his observation of Corcoran’s performance, determined that Corcoran’s faculties were impaired and that he was in no condition to safely continue the operation of a motor vehicle.

Corcoran was placed under arrest for DUI and taken to the Seminole County Jail. At the jail, Officer Link read Corcor-an his implied consent warning. During this reading, Seminole County breath test operator [“BTO”], Keith Betham, was present. Corcoran subsequently refused to provide a breath test sample. Corcor-an’s driver’s license was administratively suspended for twelve months, based on his refusal to submit to a breath test.

Corcoran subsequently invoked his right to a formal administrative review hearing. In preparation for the hearing, Corcoran served subpoenas to appear on Officer Link and BTO Betham.

The formal administrative review hearing took place on July 23, 2012. Corcoran (who was not present) was represented by his attorney, Matthew Ferry. At the outset of the hearing, the hearing officer admitted the following documents into the record:

DDL-1: Florida Uniform Traffic Citation
DDL-2: Respondent’s driver’s license
DDL-3: Certified transcript of Respondent’s driving record
DDL-4: Orange County Arrest Affidavit, authored by Officer Link
DDL-5: Maitland Police Department Supplement Report, authored by Officer Anderson
DDL-6: Affidavit of Refusal to submit to a breath test, authored by Officer Link and notarized by BTO Betham

After these documents were introduced into the record, Officer Link appeared at the hearing and provided testimony consistent with the statement of facts above.

After Officer Link testified, the following pertinent dialogue occurred between Corcoran’s counsel and the hearing officer:

MR. FERRY: I provide the Hearing Officer with an Affidavit of Service for Mr. Betham and also notice to the state attorney’s office.
* * * *
HEARING OFFICER: The time is 1:32. There is no [sic] additional witnesses. I have checked the absenteeism log and there was no prior excuse provided by Keith Betham.
Counsel, as you know, the witness does have two business days to provide just cause of his non-presence.
Would you like to proffer for the record the purpose of this witness?
MR. FERRY: Yes. Based on the testimony of Officer Link, Mr. Betham was present for the reading of the implied consent warnings and also for the observations of Mr. Corcoran at the Seminole County Jail.
HEARING OFFICER: Okay. His only involvement was being present. I don’t find the patient — I mean, the witness to be relevant at this point based on the refusal. Do you have any other motions?

At the conclusion of the hearing, Corcor-an’s counsel made the following motion:

MR. FERRY: The last motion is a motion to invalidate based on Keith Bet-ham’s failure to appear. Understanding that the hearing officer has made a ruling that Mr. Betham’s testimony is not relevant. It’s our position that Mr. Bet-ham’s testimony is relevant. And that he was present for the observations of Mr. Corcoran during the 20-minute observation, also for the reading of the implied consent warnings.
And it’s our position that his unexcused failure to appear today has deprived Mr. Corcoran of a meaningful formal review hearing.
In support of that position I provide the Hearing Officer with Department of Highway Safety and Motor Vehicles versus Robinson. It’s a 2nd DCA case from 2012 which indicates that we’re not required to enforce a subpoena for Mr. Betham’s testimony. I provide the Robinson decision to the Hearing Officer. No further motions.
HEARING OFFICER: Okay. Counsel, your motions are denied.

In a written order entered July 24, 2012, the hearing officer found “that all elements necessary to sustain the suspension for refusal to submit to a breath, blood, or urine test under section 322.2615 of the Florida Statutes are supported by a preponderance of the evidence.”

Corcoran sought first-tier certiorari review of the hearing officer’s final order in the circuit court for the Ninth Judicial Circuit, sitting in its appellate capacity. Corcoran contended that “Keith Betham’s failure to appear, without just cause ... deprived the Petitioner of his right to due process.” Specifically, Corcoran contended:

The testimony of Officer Link established that Keith Betham made contact with [Corcoran] shortly after his arrest at the Seminole County Jail. Keith Bet-ham was present for the observations of [Corcoran] and could testify whether or not [Corcoran] exhibited any signs of impairment at or near the time of his arrest.

Corcoran contends that the hearing officer erred in concluding that the potential testimony of BTO Betham was irrelevant and that the trial court’s error “effectively quashed his subpoena,” thereby depriving Corcoran of his procedural due process rights.

In a final order entered February 7, 2013, a three-judge panel of the circuit court agreed with Corcoran’s due process argument related to BTO Betham and further concluded that the issue was disposi-tive of the entire proceeding. The circuit court concluded in pertinent part:

A driver is entitled to request subpoenas for witnesses identified in the documents pertaining to the license suspension and has the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver. §§ 822.2615(2) and 322.2615(6)(b), Florida Statutes (2012); Rules 15A-6.012(1) and 15A-6.013(5), Fla. Admin. Code. Also, in support of his argument, Cor-coran cites cases, Auzenne v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 1056a (Fla. 9th Cir.Ct.2010) (holding that it was error for the hearing officer to refuse to issue a subpoena for the breath test operator who was a relevant witness as he had contact with the driver at or near the time of arrest) and Amodeo v. Dep’t of Highway Safety & Motor Vehicles, No. CI96-3994 (Fla. 9th CSr.Ct.1997), Aff'd, without opinion, 711 So.2d 148 (Fla. 5th DCA 1998), 711 So.2d 148 (Fla. 5th DCA 1998) (holding that a hearing officer may not quash a subpoena for a fact witness pursuant to section 322.2615(2), Florida Statutes, and Rule 15A-6.013(5), Florida Administrative Code, and the defense has the absolute right to subpoena other witnesses to testify as to whether or not the defendant exhibited any signs of impairment at or near the time of arrest).
Further, per Rule 15A-6.015(2)(b) of the Florida Administrative Code, if just cause is shown, the hearing shall be continued and notice given. The record is silent as to whether, after the hearing, Betham timely presented just cause for his non-appearance. Since this was Bet-ham’s first failure to appear and provided that he timely showed just cause for his non-appearance, the hearing officer should have continued the hearing to provide an additional opportunity for Betham to appear and testify. Instead, the hearing officer’s ruling that Bet-ham’s testimony was not relevant precluded this procedure that Corcoran was entitled to thus, [sic] depriving him of due process.

Based on this rationale, the circuit court granted Corcoran’s certiorari petition and remanded the matter back to the Department for a new hearing consistent with the circuit court opinion.

On February 14, 2013, the circuit court sua sponte entered its “Amended Final Order Granting Petition for Writ of Cer-tiorari.” The only difference between the circuit court’s original order and its amended final order is that the amended final order removed the language directing remand for a new hearing. In other words, the invalidation of Corcoran’s driver’s license suspension would be permanent based on the circuit court’s amended final order. Department subsequently filed this second-tier petition for writ of certiorari.

Among its arguments, Department contends that the circuit court violated Department’s due process rights when it sua sponte amended its final order to strike the portion of its prior order which had directed remand for a new hearing. Department argues that the circuit court’s decision in this regard was contrary to this Court’s previous case law indicating that in similar circumstances a remand for a new hearing would be the appropriate disposition. See Tynan v. Dep’t of High. Saf. & Motor Veh., 909 So.2d 991, 995 (Fla. 5th DCA 2005).

In Department of Highway Safety and Motor Vehicles v. Luttrell, 983 So.2d 1215, 1217 (Fla. 5th DCA 2008), this Court reiterated:

The circuit court’s standard of review was limited to a determination of whether procedural due process was accorded, whether the essential requirements of law had been observed, and whether the administrative order was supported by competent substantial evidence. See City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982); Dep’t of Highway & Motor Vehicles v. Cochran, 798 So.2d 761 (Fla. 5th DCA 2001). This court’s review is limited to determining whether the circuit court afforded procedural due process and whether the circuit court applied the correct law. See Conahan v. Dep’t of Highway & Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993).

Procedural due process has been afforded to a driver at a formal administrative review hearing where the driver has received notice and has been given an opportunity to be heard. See Dep’t of High. Saf. & Motor Veh. v. Griffin, 909 So.2d 538, 541 (Fla. 4th DCA 2005); Cantrall v. Dep’t of High. Saf. & Motor Veh., 828 So.2d 1062, 1063 (Fla. 2d DCA 2002); Dep’t of High. Saf. & Motor Veh. v. Stewart, 625 So.2d 123, 124 (Fla. 5th DCA 1993). In determining whether the lower court applied the correct law, this Court may consider, among other things, recent controlling case law, rules of court, statutes, and constitutional law. See Nader v. Fla. Dep’t of High. Saf. & Motor Veh., 87 So.3d 712 (Fla.2012); Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003).

The formal administrative review procedure contemplated by section 322.2615, Florida Statutes (2012), is outlined in three particular subsections. First, subsection 322.2615(7), Florida Statutes (2012), provides:

In a formal review hearing under subsection (6) ... the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:
(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

In completing the task provided in subsection 322.2615(7), subsection 322.2615(11), Florida Statutes (2012), provides the hearing officer with the following tools:

The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.

Finally, subsection 322.2615(6)(b), Florida Statutes (2012), provides guidance to the hearing officer in how to regulate his/her hearings:

Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents in subsection (2), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension.

As an initial matter, the hearing officer may (or may not) have been incorrect when she observed that BTO Betham’s testimony would not be “relevant.” Relevant evidence is “evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2012). When asked to make a proffer due to BTO Betham’s failure to appear, defense counsel simply said that BTO Bet-ham was present during the reading of the implied consent warnings, and he observed Corcoran’s demeanor at the jail. There was no suggestion, however, that he had any evidence to offer that involved any disputed fact or that his testimony would be helpful to Corcoran.

In Department of Highway Safety and Motor Vehicles v. Chamizo, 753 So.2d 749, 750 (Fla. 3d DCA 2000), the Department sought second-tier certiorari review of the circuit court’s order quashing the driver’s administrative license suspension. The circuit court quashed the suspension because the hearing officer had decided to quash the subpoena issued to one of the two police officers involved in the arrest and subsequent breathalyzer testing of the driver. Id.

At the hearing, the driver was asked by the hearing officer to proffer the missing officer’s testimony. Id. at 751. The Third District characterized the driver’s response to this question as follows:

Defense counsel explained that Officer Perez had an opportunity to observe the defendant and speak with him at the station. Counsel proffered that Officer Perez would say the defendant had been rude to Officer Smith, and that the defendant had a conversation with Officer Perez about the breath test. The defense did not state what the substance of the conversation about the breathalyzer test would be, nor was there any proffer relating to the roadside sobriety test.

Id. (footnote omitted). The hearing officer declined to continue the hearing to permit Officer Perez to testify at a later date and, instead, quashed the subpoena. As was previously noted, the circuit court invalidated the license suspension. Id. at 750.

On second-tier review, the Third District quashed the circuit court’s order, holding in pertinent part:

We conclude that, based on the proffer, there was no reason for the hearing officer to continue the hearing. At the station, the defendant’s breath test readings were .163/.187/.180, well above the legal limit. There is nothing in the defense proffer which casts any doubt on the reliability of the breath test results. The defense only said that there had been a conversation between the defendant and Officer Perez about the breath test, but there was no indication of the substance of that conversation. There was no proffer relating to the roadside sobriety tests.
The defendant points out that there is no prehearing discovery, and argues that this limits the ability of counsel to make a proffer. While it is true there is no prehearing discovery it is also true that counsel will have the client’s version of events, the pertinent documents, and conceivably other investigative results. While the requirement for a proffer must be flexibly applied, there is no indication here that Officer Perez’ testimony would be anything other than cumulative. [FN 3].
FN3. This is also not a case in which two or more witnesses disagreed on a material fact issue, and the non-appearing officer could testify as to the disputed events. Here the only witness who testified was Officer Smith.
Where the hearing officer makes a harmful trial error, the remedy is to send the matter back for a new hearing. Where the hearing officer makes an error but the error is harmless, the circuit court should affirm. See §§ 924.051(7), 924.33, Fla. Stat. (1999); Goodwin v. State, 751 So.2d 537 (Fla.1999).
We are inclined to think that once the continuance was denied, there was no error in quashing the subpoena, but we need not now decide the point. Assuming it was error to quash the subpoena, the error was harmless.

Id. at 751-52.

In the instant case, much like the situation in Chamizo, there is precious little to suggest that BTO Betham’s testimony would have been relevant to any of the contested issues in the case, and there is nothing in the record to suggest that BTO Betham’s testimony would be anything other than cumulative. Like the situation in Chamizo, the instant case did not present a scenario in which two or more witnesses disagreed on a material fact issue and the non-appearing BTO could testify as to the disputed events. Here, Corcoran did not even appear at the hearing to offer his version of events. The only witness who testified was Officer Link.

Corcoran principally relies on this Court’s decision in Department of Highway Safety and Motor Vehicles v. Auster, 52 So.3d 802, 804-05 (Fla. 5th DCA 2010), where this Court distinguished Chamizo based on the different facts at issue in Auster. The hearing officer in Auster had refused to issue a subpoena for the breath test operator because the suspension was imposed due to the driver’s refusal to take a breath test. However, the driver in Auster had proffered that she wished to examine the BTO as to whether the driver had timely recanted her refusal to submit to the test. In this case, unlike Auster, there was no refusal to issue the subpoena and there was no articulated relevant and non-cumulative purpose for the testimony. Id. at 805.

More important, there is no legal support for the position taken by Corcoran at the hearing that BTO Betham’s failure to appear deprived him of due process and should result in the invalidation of the suspension altogether. Corcoran had a statutory remedy for the failure of the witness to appear and should have pursued enforcement of the subpoena pursuant to section 322.2615(6)(c), Fla. Stat. (2012). See Kubasak v. Dep’t of High. Saf. & Motor Veh., 957 So.2d 15, 15 (Fla. 5th DCA 2007). The circuit court applied the wrong law in holding that the trial court’s conclusion that BTO Betham’s testimony was irrelevant deprived Corcoran of due process because it precluded him from obtaining a continuance so that BTO Betham could testify. At most, however, this case involves an erroneous evidentiary ruling on relevance. If the hearing officer erred, the error should simply have been corrected and the matter remanded for a new hearing.

In any event, remanding the matter for a new hearing is required by this Court’s prior caselaw. See Tynan, 909 So.2d at 995 (“[HJaving failed to accord Tynan due process in the first hearing, the Department had the right to conduct a hearing which met due process requirements.”); Dep’t of High. Saf. & Motor Veh. v. Icaza, 37 So.3d 309, 312 (Fla. 5th DCA 2010) (“We conclude that the circuit court applied the wrong law when it refused to remand the case to the hearing officer.”).

PETITION FOR WRIT OF CERTIO-RARI GRANTED; ORDER QUASHED; and REMANDED.

SAWAYA and COHEN, JJ„ concur.

      . During the traffic stop, Officer Link radioed for a backup officer, and Officer James Anderson appeared at the scene. Officer Anderson provided a supplemental police report that detailed his observations during the field sobriety exercises.

      . Department filed a motion for rehearing, which the circuit court denied.

      . Mercifully in this Court, Corcoran has not relied on the case it cited below, Department of Highway Safety and Motor Vehicles v. Robinson, 93 So.3d 1090 (Fla. 2d DCA 2012), a case in which the court of appeal discussed, but did not rule upon the question whether it is a violation of due process to suspend a license after a subpoenaed witness fails to appear, and the suspendee cannot enforce the subpoena within the "statutorily mandated thirty-day period for formal administrative review.” If the argument had been raised, we would not have hesitated in answering the question in the negative. See also Echternach v. Dep’t of High. Saf. & Motor Veh., 119 So.3d 467 (Fla. 2d DCA 2013); Dep’t of High. Saf. v. Ramnarine, 104 So.3d 1144 (Fla. 2d DCA 2012).


author: PER CURIAM.

text:
    Jamila Takiyak HUNTER, Petitioner, v. Andrew J. BOOKER, Respondent.
    No. 1D14-0371.
    District Court of Appeal of Florida, First District.
    March 7, 2014.

      Edward W. Horan, Tallahassee, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner filed in this court an emergency petition for writ of prohibition to restrain the enforcement of certain handwritten provisions contained in an order dismissing a temporary injunction Petitioner previously obtained against Respondent. The challenged provisions created a temporary parenting plan for the parties’ child, with rotating custody, and ordered that the child not be taken outside the state without a court order. We treated the petition as one seeking a writ of certio-rari, and, on January 30, 2014, granted the petition and quashed the challenged portions of the lower court’s order. We now write to explain our reasons.

Facts

On January 6, 2014, Petitioner filed a petition in the circuit court seeking an injunction for protection against domestic violence. Therein, she asserted that her former boyfriend, who also is the father of her four-year-old son, had confronted her in a store parking lot, shouted obscenities at her, and spat in her face, all in front of the child. The petition went on to allege that the respondent had previously threatened the petitioner with guns, had previously slashed the petitioner’s tires and broken one of the lights on her vehicle, “tells [the child] he’s retarted [sic], slow,” and asserts that the respondent has attempted to remove the child from daycare without permission, in addition to having “women call and pretend to be aunts, me, and even the sitter in attempts to remove [the child] from school” without petitioner’s permission. The court entered a temporary injunction, ex parte, the same day, and scheduled a hearing for January 17, 2014. Pursuant to Petitioner’s request, the temporary injunction gave her 100 percent time-sharing with respect to the child.

A different judge — Judge Karen Giev-ers — presided at the hearing, at which both parties appeared without counsel. At the outset, Petitioner briefly gave her version of events, and stated that she did not want the child around Respondent. The following exchange ensued:

JUDGE GIEVERS: Well, you can’t use an injunction to terminate a parent’s rights of a child.
MS. HUNTER: Well, that’s not why—
JUDGE GIEVERS: That only can be done in a family law case.
MS. HUNTER: ... I’m not trying to terminate his rights, ma’am. He doesn’t even want rights. He generally has them — he doesn’t use them. Even if he wanted to use them, he doesn’t, so that’s not an issue at all....
JUDGE GIEVERS: Ma’am, he’s the father of your child.
JUDGE GIEVERS: You need to be proactively supporting a relationship, a positive relationship.
JUDGE GIEVERS: ... It is important, and I mentioned this on October 24th when I dissolved — when I denied his request for an injunction. I indicated that neither of you should make disparaging comments about the other in the presence of the child, and we talked about the importance of both of you— and the requirement under law that both of you support a positive relationship between your child and the other parent. It’s not appropriate for a parent to have a dismissive attitude toward whether the other parent of a child is in the child’s life. Children need both parents to properly develop, so let’s get that understanding between us. Is that clear?

After taking testimony pertinent to the asserted grounds for the injunction, Judge Gievers asked Respondent whether he had a time-sharing agreement with Petitioner regarding the child. He testified there is no such agreement, and, although he complained about the infrequency with which he sees the child, he did not request a time-sharing plan. The judge further asked Respondent about his daily schedule, and asked him whether he “could provide care for the child, a bed for him to sleep in, help him with his meals and getting him ready for bed, et cetera ... you have a place where he would be safe with you?” to which Respondent answered affirmatively. When Petitioner asked if she could speak, Judge Gievers responded, “[o]f course,” then asked her, “Can you tell me why the child shouldn’t be with his father half the time?” Among other things, Petitioner stated, “He doesn’t have a place for [the child] to stay. He lives in a bedroom with one bed[.]”

Although the parties confirmed there was no action pending in the circuit court to establish parental responsibility and visitation, and although Respondent had not otherwise raised the issue of time-sharing, Judge Gievers concluded: “[W]e need a parenting plan. It is clear to the Court this child needs to be with his father as well as with his mother.” The judge then established a “weekly rotation, so it will be week on, week off, so that this father gets to be a father and parent the child.” She advised the parties:

The Court is going to, because of the Monday holiday coming up and to give the parties time, if they wish, to file a petition in the family law division to have a full-blown hearing on timesharing and any conditions — today is the 17th. So effective on Monday, the 27th, the temporary timesharing plan that the Court is implementing will be in place.

When Petitioner stated she had plans to move out of state, Judge Gievers responded, “You can’t take children out of state without a court order, by statute.... You need to have a custody hearing before you move, if the child is going to be going with you.” After announcing the rotating custody schedule, the judge denied Petitioner’s request for an injunction, finding insufficient evidence to support it. The judge subsequently handwrote on the pre-printed order dismissing Petitioner’s temporary injunction additional provisions as to time-sharing and prohibiting taking the child out of state.

Discussion

Section 741.30, Florida Statutes, which governs issuance of domestic violence injunctions, authorizes the issuing court to establish a temporary parenting plan under the following two circumstances:

(5)(a) If it appears to the court that an immediate and present danger of domestic violence exists, the court may grant a temporary injunction ex parte, pending a full hearing, and may grant such relief as the court deems proper, including an injunction:
3. On the same basis as provided in s. 61.13, providing the petitioner a temporary parenting plan, including a time-sharing schedule, which may award the petitioner up to 100 percent of the time sharing. The temporary parenting plan remains in effect until the order expires or an order is entered by a court of competent jurisdiction in a pending or subsequent civil action or proceeding affecting the placement of, access to, parental time with, adoption of, or parental rights and responsibilities for the minor child.
(6)(a) Upon notice and hearing, when it appears to the court that the petitioner is either the victim of domestic violence as defined by s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court may grant such relief as the court deems proper, including an injunction:
3. On the same basis as provided in chapter 61, providing the petitioner with 100 percent of the time-sharing in a temporary parenting plan that remains in effect until the order expires or an order is entered by a court of competent jurisdiction in a pending or subsequent civil action or proceeding affecting the placement of, access to, parental time with, adoption of, or parental rights and responsibilities for the minor child.

§ 741.30(5)(a)3, (6)(a)3, Fla. Stat. (2013); see also § 741.2902(2)(e), Fla. Stat. (2013) (providing legislative intent that, in issuing a domestic violence injunction, a court shall, inter alia, “[cjonsider supervised visitation, withholding visitation, or other arrangements for visitation that will best protect the child and petitioner from harm ”) (emphasis added). Thus, a temporary parenting plan is authorized only if the court is issuing an injunction, whether ex parte or after hearing, and is intended to protect the petitioner and the child from harm.

Moreover, should the court find it appropriate to establish such a temporary parenting plan, it must do so “on the same basis” provided in chapter 61, Florida Statutes. Section 61.13, Florida Statutes, provides that, when creating a parenting plan, including a time-sharing schedule, “[djetermination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to” the twenty factors listed therein. § 61.13(3), Fla. Stat. (2013).

Here, Judge Gievers denied Petitioner’s request for an injunction, finding the evidence insufficient to support it, and dismissed the previously-issued temporary injunction, but set up a parenting plan that included weekly rotating time-sharing with the child. We recognize the judge’s apparent concern that there may have been — and, in the absence of an injunction, may yet be — roadblocks to a desirable parent-child relationship between Respondent and his son. However, while section 741.30 authorizes a temporary parenting plan upon the issuance of a domestic violence injunction, it provides no authorization for a parenting plan upon the dissolution or denial of such an injunction. Therefore, having denied the injunction, Judge Gievers was not authorized under section 741.30 to establish a temporary parenting plan. Taking such action without statutory authority was a departure from the essential requirements of law. See Coleman v. Coleman, 906 So.2d 1267, 1268 (Fla. 3d DCA 2005) (holding trial court lacked jurisdiction to enter subsequent order granting husband exclusive use and possession of marital residence after denying husband’s petition for injunction, because section 741.30 only permits such relief when requirements for issuing an injunction are satisfied); Taylor v. Taylor, 831 So.2d 240, 241 (Fla. 2d DCA 2002) (quashing, for lack of authority, portion of order dismissing mother’s temporary injunction in which trial court also enjoined father from contact with mother and children and awarded mother exclusive use of marital home).

Moreover, Judge Gievers violated Petitioner’s right to due process by granting relief not requested by Respondent, and by sua sponte raising and considering the issue without providing adequate notice. At no time did Respondent, even while being questioned by the court, request custody of the child, shared or otherwise. Although Petitioner’s original petition for injunction “request[ed] that the Court prohibit time-sharing by Respondent” with the child, and she so stated at the hearing, it was part of Petitioner’s overall request for injunctive relief and was based on her asserted fear of imminent harm to the child. She had no notice that, in the event the court denied her petition, Respondent could receive court-ordered shared custody of the child. An order adjudicating an issue not presented by the parties or the pleadings denies due process, and therefore, departs from the essential requirements of law. See Kerrigan, Estess, Rankin & McLeod v. State, 711 So.2d 1246, 1248 (Fla. 4th DCA 1998) (citing Cortina v. Cortina, 98 So.2d 334 (Fla.1957)); see also Blackwood v. Anderson, 664 So.2d 37, 38 (Fla. 5th DCA 1995) (quashing order awarding father custody of children after mother failed to appear at hearing on her injunction petition, because father did not properly plead custody and mother was not sufficiently noticed on custody issue).

Finally, even if Judge Gievers had properly considered a temporary parenting plan upon dissolving Petitioner’s injunction, nothing in the hearing transcript shows she considered any of the criteria set out in section 61.13, Florida Statutes, as required by section 741.30. To be sure, no consideration was given to whether a “week on, week off’ time-sharing arrangement would be appropriate for this four-year-old child who, until now, has lived solely -with his mother. See § 61.13(3)(d), Fla. Stat. (2013) (including as factors for determining the child’s best interests, “[t]he length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity,” and “[t]he developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs”). Her reasoning simply was “this child needs to be with his father as well as his mother.” Such failure to apply section 61.13 was a departure from the essential requirements of law. See Achord v. Osceola Farms Co., 52 So.3d 699, 702 (Fla. 4th DCA 2010) (“A departure from the essential requirements of law is synonymous with the failure to apply the correct law.”) (citing State v. Belvin, 986 So.2d 516, 525 (Fla.2008)).

For the foregoing reasons, the PETITION FOR WRIT OF CERTIORARI is GRANTED.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.

      . See Fla. R. App. P. 9.040(c).


author: ORFINGER, J.

text:
    Melvin L. STEVENS, Jr., Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    No. 5D13-3472.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.

      Melvin L. Stevens, Jr., Altamonte Springs, pro se.
    No Appearance for Appellee.
   ORFINGER, J.

Melvin L. Stevens, Jr. appeals the trial court’s order denying his motions for relief from judgment. Stevens contends that the final judgment of foreclosure should be set aside because he was never served with the notice of issue or the order setting the trial. We agree and reverse.

Nationstar Mortgage, LLC, filed a foreclosure complaint against Stevens. For a time, Stevens was represented by counsel. However, upon motion, the court authorized Stevens’s counsel to withdraw. The court then directed all papers and pleadings to be served on Stevens at two designated addresses. In time, Nationstar’s counsel filed a notice that the action was at issue and ready for trial. That notice was not served on Stevens as previously ordered. Instead, it was mailed to his former counsel. The trial court’s order setting the case for trial was served only on Nationstar’s counsel. Not surprisingly, Stevens did not appear for the trial and a final judgment of foreclosure was entered against him. He timely filed his various motions for relief from judgment. Without elaboration, the trial court denied the motions.

Every pleading and paper filed in any court proceeding must be served on each party or their counsel. See Fla. R. Jud. Admin. 2.516. This requirement is to satisfy the constitutional requirement of due process. Here, neither the notice of issue nor the order setting trial was served on Stevens. This violated Stevens’s due process rights and requires reversal. See Vosilla v. Rosado, 944 So.2d 289, 294 (Fla.2006) (holding that to satisfy due process, any notiee given must be reasonably calculated, under all circumstances, to apprise interested parties of pendency of action and afford them opportunity to present objections); Heritage Casket & Vault Ind., Inc. v. Sunshine Bank, 428 So.2d 341, 343 (Fla. 1st DCA 1983). For these reasons, we reverse the final judgment and remand this matter for further proceedings.

REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.

      . Stevens filed several motions in the trial court, delineating them as a Motion to Set Aside the Final Judgment, a supplement thereto, and an Amended and Verified Motion to Set Aside the Final Judgment. Like the trial court, we consider them in the context of Florida Rule of Civil Procedure 1.540, which authorizes motions for relief from judgment.


text:
    Nicole Renee HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1360.
    District Court of Appeal of Florida, First District.
    March 7, 2014.
    Nancy A. Daniels, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, and Kimberly Ann Reece, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee for Appellee.
   PER CURIAM.

Appellant Nicole Renee Henderson appeals the trial court’s order that revoked her probation on six different grounds, three related to new law violations and three for the nonpayment of sums required by the probation order. We affirm without comment the trial court’s finding that Ms. Henderson violated her probation by committing the new law violations. We conclude, however, that the trial court improperly found Ms. Henderson to have violated probation on the three grounds related to the nonpayment of certain fees and costs. Although the State presented evidence tending to show that Ms. Henderson had the means to pay, the trial court failed to make explicit findings of willfulness as required by the caselaw. See Del Valle v. State, 80 So.3d 999, 1011, 1015 (Fla.2011); Giambrone v. State, 109 So.3d 1279, 1280 (Fla. 1st DCA 2013).

Because it is clear from the record that the trial court would have revoked Ms. Henderson’s probation based solely on her new law violations (probation condition five), we affirm the revocation of her probation. See Boyer v. State, 39 So.3d 374, 375 (Fla. 1st DCA 2010); Jenkins v. State, 24 So.3d 752 (Fla. 1st DCA 2009). But we remand with instructions for the trial court to strike from the order the violations relating her nonpayment of financial obligations (probation condition ten).

BENTON, SWANSON, and OSTERHAUS, JJ. concur.


text:
    Brandon Alan HAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2004.
    District Court of Appeal of Florida, First District.
    March 7, 2014.

      Brandon Hand, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the January 18, 2012, judgment and sentence in Clay County Circuit Court case number 2010-CF-000593. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

LEWIS, C.J., WETHERELL and ROWE, JJ., concur.


text:
    Matthew Mahdad JABERI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3808.
    District Court of Appeal of Florida, First District.
    March 7, 2014.
    Matthew Mahdad Jaberi, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is dismissed as moot with respect to the motion to correct illegal sentence and the motion to correct designation. The petition is denied with respect to the motion for postconviction relief. See Munn v. Fla. Parole Comm’n, 807 So.2d 738 (Fla. 1st DCA 2002).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Richard TER MAAT, Petitioner, v. Joanna TER MAAT, Respondent.
    No. 1D13-4998.
    District Court of Appeal of Florida, First District.
    March 7, 2014.
    Clifford L. Davis, Montieello, for Petitioner.
    Angela M. Ball, Perry, for Respondent.
   PER CURIAM.

Finding respondent’s concession to be well-taken, the petition for writ of prohibition is granted, the order granting the motion to strike the notice of dismissal is quashed, and the cause is remanded with directions to dismiss the action pending below. See Service Experts, LLC v. Northside Air Conditioning & Electrical Service, Inc., 56 So.3d 26 (Fla. 2d DCA 2010).

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


text:
    Larry Shaveese WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5987.
    District Court of Appeal of Florida, First District.
    March 7, 2014.
    Paetra T. Brownlee of Brownstone, P.A., Winter Park, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the March 26, 2013, order denying defendant’s motion to withdraw plea in Duval County Circuit Court case number 16-2010-CF-005269-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

LEWIS, C.J., WETHERELL and ROWE, JJ., concur.


text:
    Tyrone WELLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6034.
    District Court of Appeal of Florida, First District.
    March 7, 2014.
    Tyrone Wells, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    Lashaundra S. GRAY, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and MB Redevelopment, Inc., Appellees.
    No. 1D14-0541.
    District Court of Appeal of Florida, First District.
    March 7, 2014.
    Lashaundra S. Gray, pro se, Appellant.
    Norman A. Blessing, General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998).

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


text:
    Lashaundra S. GRAY, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 1D14-0542.
    District Court of Appeal of Florida, First District.
    March 7, 2014.
    Lashaundra S. Gray, pro se, Appellant.
    Norman A. Blessing, General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998).

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


text:
    Larry McArthur BAGLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0660.
    District Court of Appeal of Florida, First District.
    March 7, 2014.
    Larry McArthur Bagley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


author: THOMAS, J. MAKAR, J.,

text:
    Paris Destinee CANNON, Appellant, v. Melissa THOMAS, on behalf of Aria Lee JEWETT, a minor child, Appellee.
    No. 1D13-2040.
    District Court of Appeal of Florida, First District.
    March 12, 2014.
    Bryan S. Gowdy, D. Gray Thomas and Jennifer Shoaf Richardson of Creed & Gowdy, P.A., Jacksonville; George E. Schulz, Jr. of Holland & Knight, LLP, Jacksonville; David Jeffrey Utter of the Southern Poverty Law Center, Miami, for Appellant.

      John M. Phillips and Thomas C. Roberts of the Law Office of John M. Phillips, Jacksonville, for Appellee.
   THOMAS, J.

Appellant challenges the trial court’s order granting a permanent injunction for protection against repeat violence. Ap-pellee sought the injunction on behalf of Appellee’s daughter, who is a minor. Appellant asserts that the order is invalid, because she did not commit two acts of violence against Appellee’s daughter, as required under section 784.046(2), Florida Statutes (2012). Appellant concedes that she committed one act of violence, but asserts that the evidence does not establish the necessary second act of violence to meet the statutory criteria. Alternatively, Appellant asserts that even if the trial court could issue the injunction, the provision banning her from attending any Duval County Public School is overbroad and unconstitutional.

Conversely, Appellee argues that in order to protect minors, section 784.046(2), Florida Statutes (2012), was amended in 1999 to provide that parents or legal guardians may seek to obtain protective injunctions “against repeat violence.” By use of the phrase “against repeat violence,” Appellee asserts that only one act of violence is required to support the trial court’s order granting a permanent injunction against repeat violence. We reject Appellee’s proposed interpretation of the statute, because the statute’s unambiguous language requires the showing of two acts of violence.

As we discuss below, under the strict separation of powers requirement of Article II, section 3 of the Florida Constitution, we must interpret the statute as written by the Legislature. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). Thus, we must vacate the injunction, regardless of the heinous nature of Appellant’s violent attack of Appellee’s daughter, as the undisputed facts below do not constitute two acts of violence as defined by the statute.

Facts

Appellee filled out the standardized form for a petition seeking an injunction against repeat violence to protect her daughter. Appellee’s petition described only one act of violence by Appellant. Specifically, Ap-pellee’s petition alleged that Appellee’s daughter left school grounds with Appellant’s friend to go to a convenience store. Before reaching the store, Appellee’s daughter was approached by Appellant and several friends, some of whom used their cellphones to record the incident.

Appellant then proceeded to brutally batter Appellee’s daughter, slamming her head against a concrete wall. Appellee did not allege any other incidents and left the section of the form blank that requested information on any other incidents. A Jacksonville Sheriffs Office Incident Report, attached to the petition, stated that Appellee’s daughter sustained a Basal skull fracture, severe concussion, mild abrasions, and contusions to her head. A temporary injunction for protection against repeat violence was issued, and a hearing proceeded on the permanent injunction at issue here.

At the hearing, Appellee’s daughter testified that on the morning of the attack, she saw Appellant and a group of individuals walking toward her. She knew Appellant was going to attack her, because some individuals in the group were preparing to record the incident. Appellant then confronted Appellee’s daughter, and Appellant said she was going to beat her. When Appellee’s daughter tried to walk away, Appellant grabbed her head, slamming it into a concrete wall. Appellee’s daughter testified that she did not remember anything after her head was slammed into the wall. She further testified that she had no contact with Appellant after the incident, and she was afraid of Appellant. In addition, Appellee’s daughter said she was in fear for her life after the beating occurred.

Appellee’s counsel also submitted Face-book messages which were exchanged between Appellant and Appellee’s daughter the evening before the attack. In the Facebook message, Appellant threatened to physically beat Appellee’s daughter because of a perceived insult. At the hearing, Appellee’s daughter maintained that she did not think Appellant would in fact attack her, but nevertheless tried to dissuade Appellant by disavowing any unfavorable behavior toward Appellant. Appellee also admitted that she saw the Facebook messages between her daughter and Appellant the night before the incident, but her daughter told her that she did not think that a fight would occur.

Following Appellee’s presentation of evidence and testimony, Appellant moved to dismiss the petition, asserting that Appel-lee had not established two acts of violence, as required under the statute. Opposing the motion, Appellee argued that the statute required only one act of violence to protect minors, focusing on the undisputed evidence of the severe beating.

The trial court denied Appellant’s motion to dismiss. But the trial court would not specify whether it was finding that one or two acts of violence were required under the applicable statute or how many acts of violence had been established as defined by the statute. Despite Appellant’s repeated requests that the trial court explain the rationale for its ruling granting the injunction, the trial court simply stated that based upon evidence and testimony, it was entering a permanent injunction. The injunction prohibited Appellant from having any contact with Ap-pellee’s daughter or going within 500 feet of her residence. In addition, the trial court further found that Appellant was a threat to all children at any school, and thus prohibited Appellant from returning to any public school in Duval County, even though Appellee did not request this relief.

After the trial court entered the injunction, Appellant filed a motion for reconsideration or rehearing, asserting that two acts of violence were required under the language of the statute and Appellee’s counsel had conceded that two acts of violence were not proven. The trial court denied the motion without providing any further reasoning, and this appeal follows.

Analysis

“To the extent it rests on factual matters, an order imposing a permanent injunction lies within the sound discretion of the trial court and will be affirmed absent a showing of abuse of discretion.” Operation Rescue v. Women’s Health Ctr., Inc., 626 So.2d 664, 670 (Fla.1993), overruled on other grounds by Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). “To the extent it rests on purely legal matters, an order imposing an injunction is subject to full, or de novo, review on appeal.” Id. Thus our standard of appellate review regarding the statute’s definition of “repeat violence” is de novo.

Section 784.046(2), Florida Statutes (2012), states:

(2) There is created a cause of action for an injunction for protection in cases of repeat violence, there is created a separate cause of action for an injunction for protection in cases of dating violence, and there is created a separate cause of action for an injunction for protection in cases of sexual violence.
(a) Any person who is the victim of repeat violence or the parent or legal guardian of any minor child who is living at home and who seeks an injunction for protection against repeat violence on behalf of the minor child has standing in the circuit court to file a sworn petition for an injunction for protection against repeat violence.

(Emphasis added.)

Appellee asserts that a 1999 legislative amendment, which added the bolded language in subparagraph (2)(a), created an exception to the requirement of two incidents of violence to protect minor children. Appellee argues that the phrase “against repeat violence” demonstrates that a parent need only prove one violent act in order to prevent “repeat violence.” (Emphasis added.) We reject Appellee’s argument, because the plain and unambiguous text of the statute leads to only one reasonable conclusion. That is, that the Legislature was providing parents or legal guardians with legal standing to obtain an injunction for protection on behalf of a minor, not to reduce the required substantive elements for obtaining the injunction.

“Standing” is “a party’s right to make a legal claim or seek judicial enforcement of a duty or right.” Black’s Law Dictionary 1142 (8th ed. 2004). The language that Appellee cites to support her position, “injunction for protection against repeat violence,” was already present in section 784.046(2)(a), before the 1999 amendment was enacted regarding parents and guardians. Read in context, “injunction for protection against repeat violence” is the name the Legislature gave to the injunction, and not what is required to obtain such injunctive relief.

This interpretation is supported by the language of section 784.046(2), which states: “There is created a cause of action for an injunction for protection in cases of repeat violence .... ” § 784.046(2), Fla. Stat. (2012) (emphasis added). “Repeat violence” is unambiguously defined in section 784.046(l)(b) as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” (Emphasis added.) This definition of “repeat violence” was not amended by the Legislature in the 1999 amendment.

As held by the Florida Supreme Court in Jones v. ETS of New Orleans, Inc.:

A basic tenet of statutory interpretation is that a “statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.” Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996). Accordingly, “statutory phrases are not to be read in isolation, but rather within the context of the entire section.” Id. at 154. In other words, “[j]ust as a single word cannot be read in isolation, nor can a single provision of a statute_ A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” Smith v. United States, 508 U.S. 223, 233, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993).

793 So.2d 912, 914-15 (Fla.2001). Here, reading the statute as a whole, we must reject Appellee’s argument that the 1999 amendment allows a trial court to grant an injunction against repeat violence based on one act of violence.

Additional statutory language supports our interpretation. A separate subsection of section 784.046, which provides for a cause of action for an injunction for protection in cases of sexual violence, defines “sexual violence” as “any one incident ” of the enumerated acts listed. See § 784.046(l)(c), Fla. Stat. (2012) (emphasis added). Thus, if the Legislature had intended to amend the statute at issue here to provide a lower threshold of proof for obtaining an injunction on behalf of a minor, it knew precisely how to do so, as the Legislature did in the context of sexual violence. “It is a general canon of statutory construction that, when the legislature includes particular language in one section of a statute but not in another section of the same statute, the omitted language is presumed to have been excluded intentionally.” L.K. v. Dep’t of Juvenile Justice, 917 So.2d 919, 921 (Fla. 1st DCA 2005); see also Scalia and Gardner, Reading Law: The Interpretation of Legal Texts 124 (1st Ed. 2012) (“Where the legislature has specifically used a word or term in certain places within a statute and excluded it in another place, the court should not read that term into the section from which it was excluded.”) (quoting Matter of Voss’ Adoption, 550 P.2d 481 (Wyo.1976)).

Adhering to this general canon of statutory construction, which properly respects legislative authority, we interpret the omission of any language changing the definition of repeat violence, and the unambiguous language defining “repeat violence” as two incidents of violence, to require a parent or legal guardian to establish two acts of violence to obtain an injunction for protection against repeat violence in cases involving minor children. Had the Legislature intended to reduce the requisite acts of violence in such cases, it would have revised the definition of “repeat violence” in section 784.046(l)(b).

Thus, we do not possess the constitutional authority to interpret the statute in the manner argued by Appellee, under Florida’s strict and specific separation of powers requirement of the Florida Constitution, no matter how laudable might be the result in this case. Article II, section 3, states: “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” In Holly v. Auld, our supreme court recognized that “courts of this state are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ ” 450 So.2d at 219 (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968) (bolded emphasis added; italicized emphasis supplied)); see also State v. Egan, 287 So.2d 1, 7 (1973) (recognizing that “[ujnder our constitutional system of government, however, courts cannot legislate.”). Because the Legislature did not provide that a parent or legal guardian may obtain a permanent injunction against repeat violence on behalf of a minor child based on a single act of violence, we are without constitutional authority to decide otherwise.

As two acts of violence are required under the statute, we have closely examined the facts of this case to determine whether Appellant may have committed two acts of violence. If so, we would have upheld the injunction under the “tipsy coachman” doctrine, which allows appellate courts to affirm judgments if right for any reason. See Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002) (stating that “tipsy coachman” doctrine allows an appellate court to affirm a ruling by the trial court that reached the right result, but for wrong or different reasons when any theory or principle of law in the record would support the ruling).

But here we conclude that the requirements for the injunction were not met in this appeal, as there is no evidence of two acts of violence. Although Appellant committed a vicious attack on Appellee’s daughter, Appellee argued below that only a single act was required under the statute. Thus, she never described two distinct acts of violence. Even on appeal, Appellee has not explained to this court what two specific acts of violence under the statutory definition are established by the undisputed facts of this case. Instead, Appellee makes a general assertion that the trial court considered “evidence of other offending acts” without specifying the facts that would establish two offenses of violence under the statute. Appellee’s main focus on appeal is her contention that the statute only required one act of violence, an argument we must reject.

Subsection 784.046(l)(a) defines “violence” as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” Appellant does not dispute that the brutal battery she committed against Appellee’s daughter establishes one incident of violence, but asserts that the facts here do not support a finding of a second incident of violence. We must agree, as there is no evidence in the record to support any additional act of battery or aggravated battery. Additionally, there is no evidence in the record to establish any of the other enumerated offenses under subsection 784.046(l)(a).

In particular, we independently considered whether Appellant’s Faeebook messages could constitute assault and establish a second act of violence. An “assault” is “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011, Fla. Stat. (2012) (emphasis added). To prove assault, section 784.011, Florida Statutes, requires proof of the following three elements: “(1) an intentional, unlawful threat; (2) an apparent ability to carry out the threat; and (3) creation of a well-founded fear that the violence is imminent.” H.W. v. State, 79 So.3d 143, 145 (Fla. 3d DCA, 2012) (citing Benitez v. State, 901 So.2d 935, 937 (Fla. 4th DCA 2005)). Here, the undisputed evidence does not support a finding that Appellant committed assault by sending the threat by Faeebook message on the night before the battery. See, e.g., Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) (holding that yelling profanities and threats at the petitioner, even after a previous battery by respondent against petitioner, was not sufficient for a finding of “repeat violence” without evidence that respondent took an action creating a “well-founded fear that violence was imminent”); Santiago v. Towle, 917 So.2d 909, 911 (Fla. 5th DCA 2005) (holding that a respondent’s statement to a third party that he “had a gun and was not afraid to use it” did not constitute an incident of violence because there was no “overt act indicating an ability to carry out the threat or justifying a belief that violence was imminent”); Perez v. Siegel, 857 So.2d 353, 354-55 (Fla. 3d DCA 2003) (explaining that verbal threats without an overt act creating a well-founded fear that violence was imminent were insufficient to qualify as assault under the statute); Gianni v. Kerrigan, 836 So.2d 1106, 1107 (Fla. 2d DCA 2003) (finding that phone calls did not qualify as acts of violence when the petitioner testified that he was not put in fear by the calls); Orr v. Koutsogiannis, 829 So.2d 962 (Fla. 4th DCA 2002) (holding that the evidence only supported one instance of violence; subsequent threats which were not taken seriously by petitioner did not amount to violence under section 784.046); Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990) (holding that numerous harassing phone calls, some containing threats, were not sufficient to support trial court’s decision to grant injunctive relief).

Beyond the enumerated offenses, we also considered whether the facts could support a second act of violence under the provision contained in subsection 784.046(l)(a), which further defines “violence” to include “any criminal offense resulting in physical injury or death, by a person against any other person.” The undisputed facts, however, do not establish a second criminal offense “resulting in physical injury or death.”

If subsection 784.046(l)(a) had contained a provision similar to the prison releasee reoffender (PRR) sentencing statute, under section 775.082(9)(a)l., Florida Statutes (2012), we could affirm the injunction here. Section 775.082(9)(a)l., in pertinent part, outlines those enumerated crimes that establish that a defendant is qualified to be sentenced as a PRR and includes as a qualifying PRR offense “[a]ny felony that involves the use or threat of physical force or violence against an individual.” (Emphasis added.) See also State v. Hackley, 95 So.3d 92, 94 (Fla.2012) (holding that burglary of a conveyance with an assault, although not an enumerated offense under the PRR sentencing statute, was a qualifying PRR offense, as it was a felony that fell under the subsection covering “[a]ny felony that involves the use or threat of physical force or violence against an individual.”).

If the Legislature had included language in section 784.046 that applied to felonies involving the “threat” of violence, then Appellant’s Facebook message to Appellee’s daughter would have qualified as a second offense under section 836.10, Florida Statutes (2012). That statute provides that any person who composes and sends an electronic communication containing a threat to kill or to do bodily injury to the person to whom such communication is sent commits a second-degree felony, punishable by up to fifteen years in state prison. See O’Leary v. State, 109 So.3d 874 (Fla. 1st DCA 2013) (holding that written threats posted on Facebook page constituted sending written threats to kill or do bodily harm in violation of § 836.10, Fla. Stat.). In O’Leary, the appellant was convicted and sentenced to ten years in state prison for violating this statute. But our decision must be based on the current language of the statute, which requires two act of violence. Here, the record on appeal contains no evidence to support a finding of two incidents of violence, as defined by the statute.

Accordingly, we reverse and remand for the trial court to vacate the injunction for protection against repeat violence. We do not address Appellant’s argument regarding the terms of the injunction, as it is unnecessary in light of our holding vacating the injunction.

REVERSED and REMANDED with instructions to vacate the injunction.

RAY, J., Concurs; MAKAR, J., concurs with opinion.

MAKAR, J.,

concurring with opinion.

This case is yet another data point among the hundreds of thousands of violent acts that occur annually while students are going to, at, or coming home from their schools. National studies document the depth and scope of the problem, whose magnitude is troubling and whose solution is not apparent. The following statistics are among the most recent from a “nationally representative sample of youth in grades 9-12”:

• “12% reported being in a physical fight on school property” (16% for males/ 7.8% for female);
• “20% reported being bulbed on school property” (22% for females/18.2% for males).
• “16.2% reported being bubied electron-icaby (email, chat room, website, text-ing)” (22.1% for females/10.8% for males);
• “7.4% reported being threatened or injured with a weapon on school property one or more times”;
• “5.9% did not go to school on one or more days in the 30 days preceding the survey because they felt unsafe at school or on their way to or from school.”

The data cast doubt on the perception that public (and private) school systems are educational safe havens; neither Florida nor Duval County is immune.

Policymakers in the legislative branch and administrators in the executive branch have the legal authority to take affirmative steps to reverse this tide of student violence. The judicial branch, on the other hand, plays a far more limited role. Its authority extends only to resolving those disputes that are filed in the judicial system. In some of those cases, trial courts are asked to enforce statutory and common law remedies, where appropriate, including statutory injunctions against violence, which is the focus of this appeal. Currently, four types of statutory injunctions exist in Florida: injunctions against domestic violence, repeat violence, dating violence, and sexual violence. §§ 741.30, 741.28, 784.046, Fla. Stat.; see generally Judge Amy Karan & Lauren Lazarus, Florida’s Four Orders of Protection Against Violence: Distinguishing The Difference, 77 Fla. B.J. 31 (Dec. 2003) (overview of the four statutory injunctions). Each was crafted to address specific situations where violence— or the potential for violence — was deemed sufficiently serious to warrant judicial intervention. None is specifically directed to student violence; instead, school-related incidents giving rise to an injunction must fall within one of the four existing statutory strictures. Karan, 77 B.J. at 33 (noting, for example, that “repeat violence cases have become mostly love triangle cases ..., employer-employee and coworker relationships, schoolmates, neighborhood disputes, and roommates who do not have a dating or intimate relationship.”) (emphasis added).

As Judge Thomas’s thorough opinion demonstrates, the situation in this case falls outside the legislative parameters for injunctions against repeat violence; the statute requires two separate acts of statutorily-defined violence and only one occurred. We are not empowered to rewrite the statute to require only one act of violence or to add offenses to the statutory list, that the legislature did not include.

In reviewing the four statutory injunctions in Florida, it is notable that not all require two acts of violence. For example, an injunction against domestic violence does not require even one act of violence. As long as the person seeking an injunction has reasonable cause to believe he or she is in danger of becoming a victim, judicial relief is available. The statute only requires that a petitioner has been a victim or has a reasonable fear of imminent violence. § 741.30, Fla. Stat. For example, if a student was attacked by — or just feared an imminent act of violence by — her mom, dad, brother, sister, or other member of her household, she could pursue a judicial order protecting her.

One might ask why household members can get a protective injunction before a violent act occurs but students must be subject to violence twice to get court protection? One reason is that the legislature crafted the domestic injunction to protect people living in the same household who see or come in contact with each other daily thereby creating a greater potential for incidents of violence that an injunction might prevent. See generally § 741.30, Fla. Stat. (1985) (amending the statute to afford, for the first time since its 1979 enactment, protection to persons other than spouses). Of course, the student-attacker and the student-victim in this case were likely to see or be in contact with each other daily at their school; they may spend greater time together in school compared to their time with household members.

Which raises a legislative policy question of whether injunctive relief ought to be available in the school context. Injunctive relief for school-related violence may be of importance given empirical evidence showing that a greater number of middle and high-school age students “experience[ ] total victimizations (theft and violent crime) at school than away from school.” In other words, rather than walking into a safer environment in which to learn, students in some school systems enter a more dangerous one. Of course, that is not true for each and every school; but, on average, it is sadly so among some school systems.

The point is that the legislature may wish to consider crafting an injunction that would apply specifically to school-related violence. Countering such an expansion is the primacy of school districts to handle their own student violence problems in their own ways; school teachers and administrators are on the front lines and should be able to deploy disciplinary and corrective measures that best address each situation in the first instance. Allowing students to obtain judicial injunctions based on just a fear of harm (like the domestic injunction statute), however, might inject courts and judicial resources into school disciplinary matters thereby potentially disrupting or interfering with school administration; even a “one act of violence” statute might prove problematic unless coupled with a showing that reliance on the school district would be ineffectual. It is a very complex legislative policy question, but one perhaps worthy of study.

All this said, I fully concur in Judge Thomas’s opinion and agree that the injunction must be vacated entirely. The trial court’s motivations were laudable; he was — and apparently frequently is — presented with senseless acts of student violence that cry out for adult intervention, protection of the victims, and punishment/remediation of the offenders. But he, like each member of this Court, is a judicial officer, whose authority is constrained and may not — in this case — afford relief.

      . See, e.g., Simone Robers et al., Indicators of School Crime and Safety: 2011, Nat’l Ctr. for Educ. Statistics, U.S. Dep't of Educ., and Bureau of Justice Statistics, Office of Justice Programs, U.S. Dep’t of Justice, at iii (Feb. 2012) (noting that in 2009-10 "there were about 828,000 nonfatal victimizations at school, which included 470,000 victims of theft and 359,000 victims of violence))] ... about 74 percent of public schools recorded one or more violent incidents of crime[, and] 16 percent recorded one or more serious violent incidents”), http://www.bjs.gov/content/ pub/pdf/iscs 11 .pdf.

      . See Understanding School Violence, Fact Sheet 2013, http://www.cdc.gov/violence prevention/pdf/yv-datasheet-a.pdf; and Youth Violence, Facts at a Glance 2012, http://www. cdc.gov/violenceprevention/pdf/yv-datasheet-a.pdf. Both facts sheets report data from the 2009-2010 school year.

      . The data reflect that rates are significantly lower in private schools, but the rates are nonetheless concerning.

      . Florida data for the five bulleted points is similar. See Youth Online: High Sch. Youth Risk Behavior Surveillance Sys., (Fla. 2011 Results), http://apps.nccd.cdc.gov/youthonline/ App/Results.aspx?LID=FL (10.2% of Florida students in a physical fight on school property; 14.0% bullied on school property; 12.4% electronically bullied; 7.2% threatened or injured with weapon on school property; and 6.5% felt unsafe and did not go to school). Females reported twice the rate of electronic bullying (16.6%) compared to males (8.3%).

      . See, e.g., Duval Cnty. Sch. Bd. v. Buchanan, 131 So.3d 821 (Fla. 1st DCA 2014).

        . Robers et al., supra note 1, at iv.


text:
    Roosevelt HENDERSON Jr., Appellant, v. BANK OF AMERICA, Appellee.
    No. 1D13-5340.
    District Court of Appeal of Florida, First District.
    March 12, 2014.
    Roosevelt Henderson Jr., pro se, Appellant.
    David S. Ehrlich and Michael A. Rodriguez, of Blank Rome LLP, Boca Raton, for Appellee.
   PER CURIAM.

Appellee’s motion to dismiss, filed on February 5, 2014, is granted, and the appeal is hereby dismissed.

LEWIS, C. J„ WETHERELL and ROWE, JJ., concur.


text:
    Joan Hicks BRYANT, Former Wife, Appellant, v. Kenneth W. BRYANT, Former Husband, Appellee.
    No. 1D14-0254.
    District Court of Appeal of Florida, First District.
    March 12, 2014.
    James C. Campbell, Shalimar, for Appellant.
    Ryan Garrity, Destín (no appearance), for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of February 17, 2014, the Court has concluded that appellant’s motion for rehearing of the December 10, 2013, order did not toll the time for filing the notice of appeal. Fla. R.App. P. 9.130(a)(5). Consequently, the notice of appeal, filed on January 17, 2014, failed to invoke the Court’s jurisdiction in a timely manner. Accordingly, the appeal is dismissed.

LEWIS, C.J., WETHERELL and ROWE, JJ., concur.