text:
    James HOUGABOOK, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1088.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See State v. Matthews, 891 So.2d 479 (Fla.2004); Doby v. State, 25 So.3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, ■ 827 So.2d 1054 (Fla. 2d DCA 2002); Williams v. State, 907 So.2d 1224 (Fla. 5th DCA 2005).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Calvin R. PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1227.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.

      Calvin R. Prince, pro se.
   PER CURIAM.

Affirmed. See Heuring v. State, 513 So.2d 122 (Fla.1987); State v. Hogan, 451 So.2d 844 (Fla.1984); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); State v. Wells, 466 So.2d 291 (Fla. 2d DCA 1985); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Willis BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1297.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Willis Baker, pro se.
   PER CURIAM.

Affirmed. See Young v. State, 141 So.3d 161 (Fla.2013); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Labadie v. State, 840 So.2d 332 (Fla. 5th DCA 2003); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Jeffrey JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1333.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Jeffrey Johnson, pro se.
   PER CURIAM.

Affirmed. See Ch.2003-25, § 1, at 206, Laws of Fla.; Ch. 77-266, § 1, at 1248, Laws of Fla; Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Romano v. State, 718 So.2d 283 (Fla. 4th DCA 1998).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    William J. OEHLING, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-201.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    William J. Oehling, pro se.
   PER CURIAM.

Affirmed. See Baker v. State, 878 So.2d 1236 (Fla.2004); State v. Broom, 523 So.2d 639 (Fla. 2d DCA 1988); Branch v. State, 990 So.2d 585 (Fla. 3d DCA 2008); Thier v. State, 967 So.2d 259 (Fla. 3d DCA 2007); Broom v. State, 907 So.2d 1261 (Fla. 3d DCA 2005).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Reginald Bernard NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-688.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See § 775.087(1), Fla. Stat. (2001); Goutier v. State, 692 So.2d 978 (Fla. 2d DCA 1997); Stoute v. State, 915 So.2d 1245 (Fla. 4th DCA 2005); Lenoir v. State, 804 So.2d 507 (Fla. 3d DCA 2001).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


author: WOLF, J.

text:
    Jeremiah Paul CAHOURS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1562.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2014.
    Rehearing Denied Oct. 1, 2014.

      Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Wesley Paxson, III, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant raises several issues challenging his convictions for leaving the scene of a crash involving death and vehicular homicide.

We affirm on all issues but one. We find that the standard jury instruction for the offense of leaving the scene of a crash involving death misstates the law with regards to the requisite level of knowledge that a crash occurred. We, therefore, reverse appellant’s conviction as to that count and remand for a new trial. However, we certify the same question certified by the Fourth District Court of Appeal in Dorsett v. State, 147 So.3d 532, 2013 WL 331602 (Fla. 4th DCA Jan. 30, 2013), rev. granted, 122 So.3d 869 (Fla.2013), as being one of great public importance. We also write to address appellant’s claim that there was insufficient evidence of vehicular homicide.

I. Leaving the Scene of a Crash Involving Death

We first write to address appellant’s claim that the standard jury instruction for leaving the scene of accident involving death misstates the law and constitutes fundamental error in this case. We agree with appellant.

Appellant was convicted of leaving the scene of a crash involving death, a first degree felony under section 316.027, Florida Statutes (2011), which stated in relevant part that:

(b) The driver of any vehicle involved in a crash occurring on public or private property that results in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062.... Any person who willfully violates this paragraph commits a felony of the first degree...

§ 316.027(l)(b), Fla. Stat. (2011) (emphasis added).

In State v. Mancuso, 652 So.2d 370 (Fla.1995), the supreme court held knowledge of an injury is an essential element of the offense of leaving the scene of an accident involving injury or death, and that element may be proven through evidence that the defendant knew or reasonably should have known that injury occurred. The court went on and stated that knowledge of an accident is an essential element of section 316.027.

This Court has previously determined that section 316.027 creates only one crime, the felony of “willfully” leaving the scene of an accident involving injury. Stanfill v. State, 384 So.2d 141,143 (Fla.1980). In reaching that determination, this Court implicitly recognized that knowledge of the accident is an essential element of section 316.027, for one cannot “willfully" leave an accident without awareness that an accident has occurred. A majority of jurisdictions that have considered similarly worded “hit- and-run” statutes have also concluded that knowledge of the accident must be read into the statute. See [State v.] Tennant, 173 W.Va. 627, 319 S.E.2d [395, 400 (1984) ] and cases cited therein. See generally A. Kaufman, Annotation, Necessity and Sufficiency of Showing in a Criminal Prosecution Under a “Hit- and-Run” Statute Accused’s Knowledge of Accident, Injury, or Damage 23 A.L.R.3d 497 (1969 & Supp.1994).

Mancuso, 652 So.2d at 371 (emphasis added).

The standard jury instruction for this offense, however, states in relevant part that the State must prove “(Defendant) knew or should have known that [he][she] was involved in a crash_” Fla. Std. Jury Instr. (Crim.) 28.4(2). Appellant persuasively argues that the “knew or should have known” language of the standard jury instruction misstates the law, which should be interpreted to require actual knowledge of the crash.

The Fourth District in Dorsett v. State held that the standard jury instruction did not accurately state the law because a defendant must have actual knowledge of the crash in order to be held criminally liable for leaving the scene of a crash. Dorsett, 147 So.3d at 575.

We agree with the Fourth District that a defendant must have actual knowledge of the crash in order to willfully leave the scene. “Willful” as defined in the standard jury instructions means “intentionally and purposefully.” Fla. Std. Jury Instr. (Crim.) 28.4. We hold that a defendant cannot willfully, intentionally, or purposefully leave the scene of a crash without actually knowing that the crash occurred.

We acknowledge, however, that a defendant could attempt to escape criminal liability through deliberate indifference to circumstances that would lead a reasonable person to know that an accident occurred. In other words, we are concerned that a driver who reasonably should have known a crash occurred will continue to drive without stopping in order to avoid obtaining the requisite knowledge. However, because the statute as written by the Legislature requires willfulness, the jury instructions cannot permit a conviction based on mere constructive knowledge of the crash. We, therefore, certify as did the Fourth District, the following question as being one of great public importance:

IN A PROSECUTION FOR VIOLATION OF 316.027, FLORIDA STATUTES (2011), SHOULD THE STANDARD JURY INSTRUCTIONS REQUIRE ACTUAL KNOWLEDGE OF THE ACCIDENT?

We also feel this is an issue the Legislature may wish to address.

II. Vehicular Homicide

Appellant also claims that the trial court erred in denying his motion for judgment of acquittal of vehicular homicide. The State, however, presented evidence that appellant had consumed alcohol for at least seven hours before driving. Additionally, the State presented evidence that dense smoke from an exploding mortar firework filled the car, and appellant did not stop driving. We hold that the evidence was sufficient to demonstrate recklessness and support a conviction for vehicular homicide.

In moving for judgment of acquittal, a defendant admits (1) facts stated in evidence and (2) conclusions favorable to the adverse party. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The trial court’s denial of a motion for judgment of acquittal will be affirmed so long as the record contains competent, substantial evidence supporting the ruling. Walker v. State, 957 So.2d 560, 577 (Fla.2007) (quoting Conde v. State, 860 So.2d 930, 943 (Fla.2003)).

“ ‘Vehicular homicide’ is the killing of a human being ... caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2011). In determining the State’s burden of proof for a vehicular homicide conviction, this court has reasoned that because “the offense of vehicular homicide has been described by the supreme court as involving a degree of negligence more than a mere failure to use ordinary care, the state must necessarily adduce evidence showing conduct at least sufficient to constitute reckless driving as ... involving a “willful or wanton disregard for the safety of persons or property....’” W.E.B. v. State, 553 So.2d 323, 326 (Fla. 1st DCA 1989) (quoting § 316.019, Fla. Stat.).

Appellant acknowledges there was testimony he had consumed alcohol. However, he argues that in W.E.B., this court found alcohol consumption alone was insufficient to demonstrate the recklessness required to sustain a conviction for vehicular homicide. In fact, in W.E.B., this court held that evidence of alcohol consumption alone, without any indication that the driver’s faculties were impaired to any degree, was insufficient. Id. However, in the present case, appellant’s passenger testified that appellant had been drinking for at least seven hours prior to driving and was intoxicated. That is sufficient evidence from which the jury could reasonably conclude appellant drove impaired and in a reckless manner.

Even without testimony of appellant’s intoxication, the State presented evidence at trial that appellant continued to drive his vehicle without braking while a mortar firework exploded and filled the car with smoke. These facts are similar to the Fifth District’s case, State v. Ynocenscio, where that court determined passing a vehicle on a foggy highway constituted reckless behavior sufficient to support a conviction of vehicular homicide. State v. Ynocenscio, 773 So.2d 613 (Fla. 5th DCA 2000). Reduced visibility due to smoke from the exploding firework, like reduced visibility due to fog, created a dangerous situation where continuing to drive as appellant did was sufficiently reckless to support a conviction of vehicular homicide. Therefore, we find the State presented competent, substantial evidence supporting a conviction of vehicular homicide. Thus, we affirm that conviction.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED. QUESTION CERTIFIED.

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

      . Mancuso considered the 1991 version of section 316.027, which prohibited leaving the scene of an accident involving injury or death. State v. Mancuso, 652 So.2d 370, n. 1 (Fla. 1995). The statute was later amended to create separate offenses for leaving the scene of an accident involving death or involving injury. See Ch. 93-140, § 1, Laws of Fla. In 1999, this section was amended to change the word "accident" to "crash.” Ch. 99-284, § 82, Laws of Fla.

      . The same issue came before this court in Gaulden v. State, 132 So.3d 916 (Fla. 1st DCA 2014), rev. granted, S.C. 14-399, 2014 WL 1508454 (Apr. 2, 2014). The Gaulden court declined to decide the issue because knowledge of the accident was conceded by the appellant in that case, and thus this court held any error in the standard jury instruction was not fundamental there. The Gaulden court acknowledged a split among jurisdictions in other states as to whether constructive or actual knowledge of the accident is required in other "hit-and-run” statutes. Id. at n. 4. Some jurisdictions have expressed concern that proving actual knowledge would be "virtually impossible.” See Micinski v. State, 487 N.E.2d 150, 153 (Ind.1986). However, we disagree. "Knowledge or intent is seldom capable of direct proof, but usually is established from the surrounding circumstances.” State v. Miller, 308 N.W.2d 4, 7 (Iowa 1981) (holding actual knowledge of the accident is required). Of note, none of the "hit-and-run” statutes at issue in the cases cited by Gaulden use the word "willfully.”

      . We also note we are required to reverse as to this issue because, while evidence was presented that could demonstrate actual knowledge of a crash, this issue was hotly contested. An instruction which misinforms the jury of a contested essential element of a crime constitutes fundamental error. See State v. Delva, 575 So.2d 643, 644-45 (Fla.1991).


author: EMAS, J.

text:
    Richard E. JAFFE, Appellant, v. In re: Guardianship of Michael Ross JAFFE, Appellee.
    No. 3D13-2052.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.
    Rehearing Denied Oct. 9, 2014.

      Rhonda F. Goodman, for appellant.
    Jay M. Levy, Miami, for appellee.
    Before LAGOA, SALTER and EMAS, JJ.
   EMAS, J.

Richard E. Jaffe (“Jaffe”) appeals the trial court’s order granting the petition of attorney Joy Carr (“Carr”) for attorney’s fees and costs, and the trial court’s order denying Jaffe’s petition to enforce a settlement agreement. For the reasons that follow, we affirm.

FACTS AND BACKGROUND

Jaffe’s son Michael Jaffe (“Michael”) was employed for twenty years as a personal assistant in the home of the Gustaf-son family. When the last member of the Gustafson family passed away, Jaffe urged Michael to bring a claim against the Gus-tafson estate seeking remuneration for being underpaid, but Michael, who suffers from mental illness, refused.

In 2007, Jaffe consulted attorney Carr on the matter, who advised Jaffe that he could bring a claim against the Gustafson estate on Michael’s behalf if Jaffe were appointed Michael’s legal guardian. Thereafter, Jaffe successfully obtained limited guardianship over Michael (“the guardianship action”) with Carr’s assistance. There was no retainer agreement for legal services rendered by Carr in the guardianship action. The court then granted Jaffe permission to commence a claim against the Gustafson estate (“the probate case”), and in December 2007, Carr and Jaffe agreed to a forty-percent contingency fee on any award in the probate case against the Gustafson estate. The contingency agreement did not address payment of fees and costs for legal services provided by Carr in the prior guardianship action. In January 2009, a settlement in the probate case against the Gustafson estate netted Michael $120,000, after payment of Carr’s fees. These monies were placed in a restricted guardianship account.

In May 2011, Jaffe discharged Carr. Thereafter, Carr billed Jaffe at a rate of $300 an hour for 83.3 hours of work expended in the guardianship action, amounting to $24,990 in fees and $2,403.23 for costs, totaling $27,393.23. Jaffe refused to make payments for the amounts billed by Carr for the guardianship action, asserting that he was never informed of Carr’s rate of $300 an hour, nor was he ever informed that he would be responsible for the costs of the guardianship action, which were billed separately from the probate case.

On July 22, 2011 Jaffe filed a complaint with The Florida Bar arising out of the above-described dispute with Carr. The parties attempted to negotiate a settlement of $11,000, but when Jaffe refused to withdraw the Florida Bar complaint as a condition of the settlement, the negotiations broke down. The trial court held a series of evidentiary hearings, one of which included expert testimony that $24,030 was a reasonable amount of attorney’s fees for the legal services rendered.

The trial court denied Jaffe’s request to enforce a settlement, finding no agreement had been reached. The court then applied the criteria set forth in section 744.108(2)(a)-(i), Florida Statutes (2013), and determined a reasonable attorney’s fee would be ninety hours at a rate of $300 per hour. However, “in view of the amount in the guardianship account,” the court found it appropriate to reduce the attorney’s fees to $16,700, plus costs (with the exception of $2,403.23, which were found to be nontaxable costs pursuant to Robbins v. McGrath, 955 So.2d 633 (Fla. 1st DCA 2007)). The court reserved jurisdiction to tax the costs of the expert witness who testified on the issue of attorney’s fees.

ANALYSIS

The standard of review for an award of attorney’s fees is abuse of discretion. Global Xtreme, Inc. v. Advanced Aircraft Ctr., Inc., 122 So.3d 487 (Fla. 3d DCA 2013). The court’s interpretation of the terms of a settlement agreement is a question of law and is reviewed de novo. Commercial Capital Res., LLC v. Giovannetti, 955 So.2d 1151, 1153 (Fla. 3d DCA 2007).

We agree with the trial court that “preliminary negotiations ... do not establish a sufficient meeting of the minds to create an enforceable settlement agreement.” Cheverie v. Geisser, 783 So.2d 1115, 1118 (Fla. 4th DCA 2001). “To be judicially enforceable, a settlement ‘must be sufficiently specific and mutually agreeable as to every essential element.’ ” Id. 0quoting Grimsley v. Inverrary Resort Hotel, Ltd., 748 So.2d 299, 301 (Fla. 4th DCA 1999)). “Where the language of a release is disputed and the parties fail to reach an agreement as to the character, nature, or type of release to be used, an essential element of the agreement is not established.” Cheverie, 783 So.2d at 1119.

The evidence in the record supports the trial court’s determination that no enforceable agreement was reached in this case and, instead, shows the parties had engaged merely in preliminary negotiations. The trial court properly determined that the withdrawal of the Florida Bar complaint was an essential term not agreed upon by either party.

Jaffe correctly contends that an agreement conditioned upon withdrawal of a Florida Bar complaint is unenforceable. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); Fla. Bar v. Fitzgerald, 541 So.2d 602, 605 (Fla.1989). We do not agree, however, with Jaffe’s further contention that this portion of the agreement is severable so as to render the remainder an effective agreement. A bilateral agreement is severable so long as the illegal term does not go to its essence and with the illegal portion eliminated, there still remains wholly supported and valid legal promises from both sides. Local No. 23⅛ v. Henley & Beckwith, Inc., 66 So.2d 818, 822 (Fla.1953). In Local No. 23í, the Supreme Court found that although the provision in controversy was illegal, the remaining terms of the agreement were so interdependent on the illegal portion such that “it is impossible to conclude that the very significant promise on one side ... can be entirely eliminated ...” and there remain a valid contract. Id.

In this case, the trial court correctly found the contract was not severable because the illegal term went to the essence of the settlement, and the $11,000 figure was dependent upon inclusion of this term in the agreement.

As for the reasonableness of Carr’s fees, “an award for attorney’s fees requires competent substantial evidence,” and “implicit in this is the requirement that the value of the services provided be supported by expert witness testimony.” Cohen v. Cohen, 400 So.2d 463, 465 (Fla. 4th DCA 1981). “Trial judges cannot rely upon [unsworn statements of lawyers] as the basis for making factual determinations; and this Court cannot so consider them on review of the record.” Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982). “If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.” Id.

At the hearing, Carr presented not only the testimony of an expert, who testified as to the reasonableness of her fees, but her own sworn testimony regarding the hours and costs expended in the guardianship case.

When proceedings are instituted to review or determine attorney’s fees under section 744.108(2), “such proceedings are part of the guardianship administration process, and the costs ... shall be determined by the court and paid from the assets of the guardianship estate unless the court finds the requested compensation under subsection (2) to be substantially unreasonable.” § 744.108(8), Fla. Stat (2013). Expert witness fees may be taxed as costs for a lawyer who testifies as an expert regarding the value of a reasonable attorney’s fees. Travieso v. Travieso, 474 So.2d 1184, 1185 (Fla.1985). A trial court can reserve jurisdiction to determine the amount of a prevailing party’s attorney’s fees and costs once it has been determined that the prevailing party is entitled to them. Ramie Int’l Corp. v. Greens Condo. Ass’n, Inc., 32 So.3d 647, 648 (Fla.3d DCA 2010).

In the case at bar, Levy, as Carr’s counsel, and Zamora, as her expert witness, are both costs that became part of the guardianship administration because Levy’s representation and Zamora’s testimony were used to determine the reasonableness of the fees incurred in the guardianship proceedings. The trial court’s order does not explicitly state that reducing the originally sought amount to $16,700 was a result of any determination that the fees sought were unreasonable, as Jaffe contends. Accordingly, it would not “defeat the statutory purposes” of section 744.108 to award Carr the fees and costs for Levy and Zamora. The court properly reserved jurisdiction to determine the amount of the fees and costs incurred in order to determine the reasonableness and necessity of the attorney’s fees awarded.

Accordingly, we affirm the order granting Carr’s petition for attorney’s fees and costs and the order denying Jaffe’s petition to enforce settlement agreement.

Affirmed.

      . In July 2012, The Florida Bar notified Jaffe and Carr that it found no probable cause on Jaffe’s complaint and that formal disciplinary proceedings were not warranted in the matter. It should be noted, however, that Jaffe’s complaint with The Florida Bar (and The Florida Bar’s determination of no probable cause) did not encompass Carr’s subsequent action in attempting to negotiate a settlement conditioned upon Jaffe’s withdrawal of the Florida Bar complaint. Such conduct is itself improper and is regarded as "conduct ... prejudicial to the administration of justice.” R. Regulating Fla. Bar 4-8.4(d) (2011); Fla. Bar v. Frederick, 756 So.2d 79 (Fla.2000).

      . Carr testified as a witness in an evidentiary hearing held on August 31, 2011, and was cross-examined by opposing counsel at that time. The record fails to indicate that Carr was formally sworn in prior to the commencement of her testimony. At a subsequent evidentiary hearing held to take further testimony on the same issue, Carr was formally sworn in as a witness and provided further testimony at that time. During that subsequent hearing, Carr stated that everything she had testified to at the prior hearing was true. Jaffe failed to object at either of these hearings, but contends on appeal that Carr’s un-sworn testimony could not properly be considered by the trial court. We find no merit in this argument. Murphy v. State, 667 So.2d 375 (Fla. 1st DCA 1995)(noting that objection to unsworn testimony cannot be made for the first time on appeal when the fact was known to the challenging party early enough to lodge a proper objection). See also, Dean v. State, 355 So.2d 130 (Fla. 1st DCA 1978).


text:
    Hector ROSA, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1496.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2014.
    Hector Rosa, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s order which summarily denied appellant’s Florida Rule of Criminal Procedure 3.853 motion for DNA testing.

We disagree with the State’s position that the motion was barred as successive. Appellant filed a prior motion for DNA testing of different items which was denied and affirmed by this Court on appeal. Rosa v. State, 881 So.2d 1125 (Fla. 4th DCA 2004). “[Ajppellant sought different relief ... and did not raise ‘substantially the same ground’ as previously raised.” Ochala v. State, 93 So.3d 1167, 1169 (Fla. 1st DCA 2012).

Rule 3.853(c)(2) provides: “The court shall review the motion and deny it if it is facially insufficient.” The trial court provided no explanation for its denial in this case. The better practice is for the trial court to explain the basis for denial in its order. See Anderson v. State, 627 So.2d 1170 (Fla.1993); Terry v. State, 970 So.2d 863 (Fla. 4th DCA 2007); Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007). Without an explanation, the movant may not have a meaningful opportunity to cure the deficiency.

“Ordinarily, a facially insufficient rule 3.853 motion should be dismissed or denied without prejudice to the refiling of a facially sufficient motion.” Bain v. State, 963 So.2d 913, 914 (Fla. 2d DCA 2007). The State acknowledges that typically our affir-mance of a denial like this would be without prejudice to the refiling of a facially sufficient motion. See, e.g., Harvey v. State, 925 So.2d 1111 (Fla. 2d DCA 2006); Lemay v. State, 921 So.2d 853 (Fla. 2d DCA 2006).

We agree that the motion was facially insufficient because it did not assert that identity was a genuinely disputed issue in this case. Fla. R. Crim. P. 3.853(b)(4). Appellant’s motion alleged that none of his DNA would be found in the victim’s sexual assault kit. He does not explain how, under- the circumstances of this case, this would exonerate him or mitigate the sentence that he received.

Our affirmance is without prejudice to appellant filing a facially sufficient motion but only if he can do so in good faith. See Oquendo v. State, 2 So.3d 1001, 1005 (Fla. 4th DCA 2008) (citing Spera v. State, 971 So.2d 754, 762 (Fla.2007)). We caution appellant, and all postconviction movants, that sanctions may be imposed for false, frivolous, or bad faith filing. Oquendo, 2 So.3d at 1006-07.

Affirmed.

DAMOORGIAN, C.J., LEVINE and CONNER, JJ., concur.


author: SUAREZ, J.

text:
    Jason BECKMAN, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D14-598.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.

      Carlos J. Martinez, Public Defender, and Kathryn Stroback, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for respondent.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   ON MOTION FOR CLARIFICATION GRANTED

SUAREZ, J.

On consideration of the state’s Motion for Carification and/or Reconsideration, the Court grants the motion, withdraws the opinion issued on July 2, 2014, and substitutes the following opinion.

Petitioner Jason Beckman, a juvenile, seeks a writ of certiorari precluding the state from conducting a psychological evaluation of him to be used at his sentencing hearing. Beckman was convicted of first degree murder of his father and he has listed a psychologist on his witness list for his individualized sentencing inquiry required under Miller v. Alabama, — U.S.—, 182 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Beckman apparently intends to argue the psychologist’s finding that he has Asperger’s Disorder as a mitigating factor in his sentencing inquiry. The state moved to have him examined by a psychologist for the state’s use at the hearing, and the trial court granted the motion over Beckman’s objection. Beckman filed this petition for writ of certiorari to quash the trial court’s order and to prevent the state’s psychological exam. Recognizing that this is an issue of first impression, we nevertheless deny the petition, in part, based upon the requirements of Miller and the holdings of Dillbeck v. State, 643 So.2d 1027 (Fla.1994) and State v. Massingill, 77 So.3d 677 (Fla. 3d DCA 2011).

In Miller, the Supreme Court determined that juveniles, like Beckman, who are convicted of first degree murder are entitled to individualized sentencing proceedings so that “a judge or jury m[ay] have the opportunity to consider mitigating circumstances” before imposing sentence. Miller, 132 S.Ct. at 2475. In preparation for his sentencing proceeding, Beckman was evaluated by a psychologist who determined that he “meets the criteria for Asperger’s Disorder, which is a neurological disorder on the autism spectrum.” After Beckman identified the psychologist as a witness for his sentencing proceeding, the trial court granted the state’s motion to have Beckman evaluated by its own psychologist.

Since Miller was issued, very few cases have discussed the relative rights of the defendant or the state in connection with the required sentencing proceedings, and there are no such cases in Florida. Nevertheless, we find that the Florida Supreme Court’s holding in Dillbeck, supra, is instructive in this context. There, a capital defendant argued that the state could not compel him to be examined by a mental health expert. In rejecting that claim, the Court stated:

Under these circumstances, we cannot say that the trial court abused its discretion in striving to level the playing field by ordering Dillbeck to submit to a pre-penalty phase interview with the State’s expert, [citation omitted]. No truly objective tribunal can compel one side in a legal bout to abide by the Marquis of Queensberry’s rules, while the other fights ungloved.

643 So.2d at 1030. Similarly, in State v. Massingill, 77 So.3d 677 (Fla. 3d DCA 2011), this court found that the state was entitled to its own mental health expert in connection with evaluation of downward departure sentencing examinations: In both cases, the goal of the courts was to “level the playing field.” We see no reason the same goal should not apply to sentencing proceedings under Miller. However, we agree with Beckman that the state’s evaluation must be limited to examination of the mitigating factors identified by Beckman’s expert.

Finally, Beckman argues that if the state is entitled to examine him, its examination must be by an expert especially qualified in the area of Asperger’s or autism spectrum neurological disorders, citing Part III of Florida Statutes Chapter 916, “Forensic Services for Persons Who are Intellectually Disabled or Autistic.” While that part of Chapter 916 does provide specific requirements for forensic services for persons with autism, it has no application to a post-conviction sentencing proceeding. Moreover, the qualifications and credibility of the expert are for the trial court to determine. Nevertheless, we grant that portion of the petition which seeks to limit the state’s examination of Beckman to the mitigating factors identified by Beckman’s expert.

Petition for Certiorari granted in part and denied in part.

      . Beckman argues that because the court in Miller discussed only mitigating factors for sentencing, the ruling does not permit examination of aggravating factors. Beckman concludes that, as a result, the state has no burden of proof in Miller sentencing proceeding. Without determining the validity of those arguments, we conclude that the state is entitled to attempt to rebut any mitigating factors presented by defendants in such proceedings and is entitled to the benefit of expert opinion in framing such rebuttal.


text:
    Jill E. NEAGLE, Petitioner, v. Jason COUNTER, Respondent.
    No. 1D14-2434.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2014.
    Rehearing Denied Oct. 2, 2014.
    Lawrence C. Datz of Datz & Datz, P.A., Jacksonville, for Petitioner.
    Susan P. Pniewski, Jacksonville, for Respondent.
   PER CURIAM.

DENIED. See Barnes v. Barnes, 124 So.3d 994, 996 (Fla. 4th DCA 2013) (recognizing home state jurisdiction under § 61.514(l)(a), Florida Statutes, if Florida was the child’s home state “at any time” during the six months preceding the filing of the custody proceeding).

WOLF, ROWE, and OSTERHAUS, JJ., concur.


author: FORST, J.

text:
    Jeanne EMIDDIO, Appellant, v. FLORIDA OFFICE OF FINANCIAL REGULATION, Appellee.
    No. 4D13-723.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.

      H. Richard Bisbee and Dannie L. Hart of H. Richard Bisbee P.A., Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Allen Winsor, Solicitor General, and Diane G. DeWolf, Deputy Solicitor General, Tallahassee, for appellee.
   FORST, J.

Appellant Jeanne Emiddio appeals the administrative order of Appellee Florida Office of Financial Regulation (“OFR”), denying her application for a loan originator license because she had been convicted of felonies involving crimes of fraud. Appellant maintains that, under the doctrines of res judicata and collateral estoppel, OFR cannot now deny her a loan originator license because of her prior convictions where it previously determined that the convictions did not warrant the revocation of her previous mortgage broker’s license. We disagree and affirm.

Background

Appellant had been a licensed mortgage broker since 1993. In 2002, she entered a plea of nolo contendere and was adjudicated guilty of one count of organized fraud less than $20,000, one count of false statement for public aid, and four counts of Medicaid provider fraud. These convictions were not related to Appellant’s practice as a mortgage broker, and Appellant has never been the subject of a customer complaint or disciplinary action in regards to her practice.

As a result of her convictions, OFR sought to revoke her mortgage broker’s license. At the time, section 494.0041(2)(a), Florida Statutes (2004), provided for discretionary disciplinary action against any mortgage broker who pled nolo contendere to a crime involving fraud. The disciplinary actions that could be taken included revocation of a license, suspension of a license, and placement on probation. § 494.0041(1), Fla. Stat. (2004).

An informal evidentiary hearing was held on the sole issue of whether Appellant’s license should be revoked because of her convictions for crimes involving fraud. Appellant had multiple clients and friends testify on her behalf about her reputation for being an ethical professional. The hearing officer recommended that Appellant be permitted to retain her license and only be put on probation because she had demonstrated remorse for her actions and had shown that her dishonest actions in her personal life did not affect her honesty with her professional actions. The recommendation was adopted in a final order by OFR in 2004.

Appellant successfully renewed her license each biennium period since the date of the 2004 final order. In 2009, the Governor restored all of Appellant’s civil rights, except the right to possess or own a firearm.

Changes in the Law for Mortgage Broker Licensing

The federal government responded to the 2008 mortgage crisis by enacting the Secure and Fair Enforcement for Mortgage Licensing Act (“SAFE Act”) to establish a Nationwide Mortgage Licensing System and Registry for the residential mortgage industry. 12 U.S.C. § 5101 (2008). The law created the term “loan originator” to encompass mortgage brokers and mortgage lenders, and it required all loan originators to apply through and be registered with the national system. 12 U.S.C. § 5102(4), (6). It also required each state to implement the SAFE Act’s minimum standards or face federal intervention. 12 U.S.C. § 5107. The minimum standards for issuing a loan originator license included that an applicant “has not been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign, or military court — at any time preceding such date of application, if such felony involved an act of fraud, dishonesty, or a breach of trust, or money laundering.” 12 U.S.C. § 5104(b)(2)(B) (emphasis added).

In 2009, the State of Florida amended Chapter 494, regarding regulation of the mortgage broker trade, to come in compliance with the SAFE Act. § 494.001, Fla. Stat. (2009). The new provisions require all mortgage brokers to file new applications for licensure as “loan originators” through the national system since the previous mortgage broker licenses ceased to be valid licenses. § 494.001(14), Fla. Stat. (2010).

Section 494.0011, Florida Statutes (2010), empowers OFR to adopt rules for loan originator licensure in accordance with Chapter 494 and the SAFE Act. Section 494.0011(2)(c) states that the office may adopt rules:

Establishing time periods during which a loan originator ... or mortgage broker license applicant ... is barred from licensure due to prior criminal convictions of, or guilty or nolo contendere pleas ... regardless of adjudication.
1. The rules must provide:
a. Permanent bars for felonies involving fraud, dishonesty, breach of trust, or money laundering[.]

(emphasis added).

OFR established Florida Administrative Code rule 69V-40.00112 to implement section 494.0011, Florida Statutes. Subsection (1) of the rule states, “As part of the application review process, the Office is required to consider a relevant person’s law enforcement record when deciding whether to approve an application for li-censure as a loan originator.” Fla. Admin. Code R. 69V-40.00112(1). The rule provides that an applicant is not eligible for licensure if the applicant has ever committed a Class A crime. Fla. Admin. Code R. 69V-40.00112(3). “Class ‘A’ crimes include all felonies involving an act of fraud, dishonesty, or a breach of trust, or money laundering.” Fla. Admin. Code R. 69V-40.00112(13).

OFR’s Application of New Laws to Appellant

Appellant timely filed her loan originator application through the national registry in December 2010 pursuant to the applicable statute because her last renewal was issued in 2009. In 2011, OFR served Appellant with a Notice of Intent to Deny Application for Loan Originator License, primarily because of her 2002 felony convictions involving fraud. Appellant petitioned for a formal hearing on the matter, but was granted only an informal hearing by OFR because the office found it was unclear whether disputed issues of fact existed. OFR issued an amended notice of intent to deny Appellant’s application, limiting the grounds solely to Appellant’s 2002 convictions.

After some delay, an informal hearing was held. Both parties submitted various exhibits and Appellant testified on her own behalf. During the proceedings, Appellant maintained that the issue of whether her 2002 convictions should be grounds for revoking her license was the subject of the proceedings in 2004 and, therefore, res judicata and collateral estoppel would operate to preclude that issue from being litigated at the present hearing.

The hearing officer issued a detailed order, noting that Appellant’s convictions were a result of a vulnerable time in her life and they did not affect or harm her clients. However, the officer recommended that Appellant’s application for li-censure be denied because the officer was “constrained by the law as it currently exists,” which mandates that an applicant who has pled nolo contendere to a felony involving fraud is not eligible for a license. This recommended order was adopted in full in a final order by OFR.

Neither Res Judicata nor Collateral Estoppel is Applicable

Although we affirm the final administrative order denying Appellant’s application, we write to address two issues raised. “Our standard of review, where the facts are not in dispute and the administrative agency is interpreting the law, is to determine if the agency ‘has erroneously interpreted a provision of law.’ ” Fanizza v. State, Comm’n on Ethics, 927 So.2d 28, 26 (Fla. 4th DCA 2006) (quoting § 120.68(7)(d), Fla. Stat. (2002)).

Our Supreme Court has recognized that “the principles of res judicata do not always neatly fit within the scope of administrative proceedings” and should be applied with great caution. Thomson v. Dep’t of Envtl. Regulation, 511 So.2d 989, 991 (Fla.1987). In Thomson, the Court held, “The proper rule in a case where a previous permit application has been denied is that res judicata will apply only if the second application is not supported by new facts, changed conditions, or additional submissions by the applicant.” Id. Likewise, with collateral estoppel, the doctrine will not be applied if there is a change in circumstances creating a new issue to be litigated. See Haskin v. Haskin, 781 So.2d 431, 482 (Fla. 4th DCA 2001); Krug v. Meros, 468 So.2d 299, 303 (Fla. 2d DCA 1985) (“[W]e note that the doctrine of estoppel by judgment does not apply where unanticipated subsequent events create a new legal situation.”). “[T]he determination of whether a significant change in circumstances has occurred lies primarily within the discretion of the administrative agency.” Delray Med. Ctr., Inc. v. State Agency for Health Care Admin., 5 So.3d 26, 29 (Fla. 4th DCA 2009).

In the instant case, the hearing officer correctly concluded that neither res judicata nor collateral estoppel bar OFR from deciding the issue before the court in 2012: whether Appellant’s 2002 convictions make her ineligible for a loan originator license under the 2010 amendments to Chapter 494. Between 2009 and 2011, the Florida statutes and administrative rules regarding mortgage broker licensure underwent significant change in the wake of the 2008 mortgage crisis. Many of the previous statutes governing Appellant’s mortgage broker license were amended or repealed and replaced with provisions in compliance with the federal SAFE Act. The hearing officer properly acted in her discretion to find that this was a significant change in circumstances, as well as an unanticipated subsequent event that created a new legal situation, to prevent the application of res judicata and collateral estoppel in Appellant’s case. Thomson, 511 So.2d at 991; Delray Med. Ctr., 5 So.3d at 29; Krug, 468 So.2d at 303.

Appellant’s Reliance on Kauk v. Department of Financial Services was not Preserved

In support of her arguments, Appellant filed the recent opinion of one of our sister courts as supplemental authority. In Kauk v. Department of Financial Services, 131 So.3d 805 (Fla. 1st DCA 2014), the First District was faced with the issue of whether OFR could impose a per se bar to licensure as an insurance agent in Florida for an applicant who was previously convicted of a felony involving a crime of fraud where OFR found that the applicant was fully rehabilitated and his civil rights had been restored. Id. at 806-08. The law that was applied to deny the applicant an insurance agent license operated the same as the law applied to deny Appellant’s license in the instant case: “to permanently preclude the licensure of any applicant who commits a felony involving fraud.” Id. at 807.

The First District relied on Sandlin v. Criminal Justice Standards & Training Commission, 581 So.2d 1344 (Fla.1988), to avoid finding the statute unconstitutionally overbroad:

[T]he statute at issue in Sandlin barred from certification as a law enforcement officer any person who had been convicted of any felony or a misdemeanor involving perjury or a false statement. The Sandlin court refused to construe this statute as imposing a per se bar against certification of a pardoned felon, reasoning that such a construction would render the statute an unconstitutional infringement on the executive’s clemency power by diminishing the effect of a pardon. The court held that, because the Legislature is presumed to have intended a constitutional result when drafting any statute, the statute could not be read as imposing an absolute bar against certification of a pardoned felon....
... The Sandlin court recognized that persons seeking to practice certain professions or employments can be required to demonstrate their good moral character, even though they may have been fully pardoned for previous crimes.... The court emphasized that a licensing agency is permitted to deny a license to a pardoned felon when the serious character of the criminal conduct underlying his conviction justifies the decision. Ultimately, the court held that a licensing agency may take into account and rely on the facts underlying pardoned convictions and may give weight to the general policy expressed in a statute precluding licensure due to criminal convictions:

Id. at 808-09 (internal quotations and citations omitted). The First District further explained that it was constrained, by that court’s prior precedent, to extend the rule in Sandlin to prevent a statute from imposing a per se bar against licensure of a felon whose civil rights have been restored, in addition to those who have received a full pardon. Id. at 809. The court’s opinion notes that while “there may be wisdom in the distinction between one who has been pardoned and one who has had his civil rights restored ... we are not at liberty to embrace such a distinction.” Id. (citing G.W. Liquors of Collier, Inc. v. Dep’t of Bus. Regulation, 556 So.2d 464, 465 (Fla. 1st DCA 1990) (extending Sand-lin to bar an automatic licensure rejection of convicted felons even without a full pardon)).

The Kauk opinion concluded that “Sand-lin does not allow the denial of a license to a restored felon due to prior convictions when the licensing agency has made findings of complete rehabilitation and fitness to hold a license.” Id. at 810. As such, the First District reversed the denial of the applicant’s licensure and remanded for OFR to properly consider his application in light of its holdings. Id.

Based on the First District’s analysis in Kauk, Appellant in the instant case attempts to raise the issue of whether the denial of her application constitutes an unconstitutional infringement on the executive’s clemency power under article IV, section 8(a) of the Florida Constitution. However, Appellant raises this argument for the first time by filing Kauk as supplemental authority on appeal, and Appellant failed to raise any constitutional challenge in her initial brief. See Stanton v. Fla. Dep’t of Health, 129 So.3d 1083, 1085 (Fla. 1st DCA 2013) (“It is a well-established maxim of appellate practice that ‘[c]laims for which an appellant has not presented any argument ... are insufficiently presented for review and are waived.’ ” (quoting Hammond v. State, 34 So.3d 58, 59 (Fla. 4th DCA 2010))); J.A.B. Enters, v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992) (“[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.”). Furthermore, a constitutional challenge based on an infringement on the executive’s clemency power was never raised in Appellant’s pleadings before the OFR hearing officer or at the informal hearing.

As such, this argument has not been preserved for review and, accordingly, we may only review the issue for fundamental error. Aills v. Boemi, 29 So.3d 1105, 1108-09 (Fla.2010). The “application of an unconstitutional statute constitutes fundamental error, whereas unconstitutional application of an otherwise constitutional statute does not.” B.C. v. Dep’t of Children & Families, 864 So.2d 486, 491 (Fla. 5th DCA 2004) (citing Alexander v. State, 450 So.2d 1212, 1216 (Fla. 4th DCA 1984)).

No Fundamental Error exists with OFR’s Denial of Appellant’s Application for Licensure

The First District’s decision in Kauk avoided declaring a statute’s per se bar against insurance agent licensure for felons convicted of crimes involving fraud as unconstitutional by presuming, in reliance on Sandlin, that the legislature intended that licensure could be granted for felons who have demonstrated rehabilitation and fitness to hold a license and whose civil rights have been restored under the governor’s clemency power. Because the licensure statute in Kauk is substantially the same as the statute and administrative rule in the instance case, the holding in Kauk can be applied to find that the legislature did not intend for section 494.0011, Florida Statutes, or administrative rule 69V-40.00112 to have an unconstitutional result; thus, a per se bar against licensure for felons convicted of crimes involving fraud will be construed as to not apply to felons whose civil rights have been restored. These applicants will then be evaluated for their rehabilitation and fitness for licensure in light of the past conviction(s).

This constitutional construction of the statute and rule precludes a finding that the statute and rule are facially unconstitutional, and so fundamental error cannot be applied. B.C., 864 So.2d at 491. Thus, to the extent that OFR’s application of the loan originator licensure statute, section 494.0011, is unconstitutional, this would not constitute fundamental error. Alexan der, 450 So.2d at 1216; see also Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So.3d 269, 285 (Fla. 1st DCA 2012) (Schwartz, Senior Judge, dissenting), review denied, 108 So.3d 655 (Fla.2012) (“In common with all appellate contentions, a claim relating to unconstitutionality is waived unless it is timely and appropriately advanced and preserved below.”).

Agreeing with OFR that collateral es-toppel and/or res judicata are not applicable, and further finding no fundamental error, we must affirm the administrative order below.

Affirmed.

GROSS and GERBER, JJ., concur.

      . In Appellant's Petition for Formal Hearing as to OFR’s Amended Notice of Denial, she challenged Chapter 2009-241, Laws of Florida (the amendments to Chapter 494, Florida Statutes), as "unconstitutional on its face and its effect to the extent it detrimentally affects [Appellant’s] protected property interest in her professional employment” and asked the hearing officer to take official recognition of Wilson v. Pest Control Commission of Florida, 199 So.2d 777 (Fla. 4th DCA 1967), and Du-bin v. Department of Business Regulation, 262 So.2d 273 (Fla. 1st DCA 1972), in support of that challenge. However, the hearing officer declined to address the constitutional argument, stating that it lacked authority as an executive agency officer to declare a statute or rule unconstitutional, and Appellant did not challenge that finding on appeal.

      . We note that we have not determined that OFR’s application of the loan originator licen-sure statute was done in an unconstitutional manner, inasmuch as Appellant had not received a pardon and, unlike the First District Court of Appeal, we are not constrained by G.W. Liquors to extend the Sandlin holding.


text:
    HSBC BANK USA, NATIONAL ASSOCIATION, Etc., Appellant, v. CENTRE COURT RIDGE CONDOMINIUM ASSOCIATION, INC., Appellee.
    Nos. 5D13-3209, 5D13-3408.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.
    Ari J. Glazer, of Moskowitz, Mandell, Salim & Simowitz, P.A., Fort Lauderdale, for Appellant.
    Jacob A. Brainard, and Scott C. Davis, of Business Law Group, P.A., Tampa, for Appellee.
   PER CURIAM.

Appellant, HSBC Bank USA, National Association, as Trustee for Luminent Mortgage Trust 2007-2, challenges an order denying its motion to vacate a default, set aside a default judgment and cancel a foreclosure sale. Appellant contends that the default judgment entered against it should have been set aside because of defective service of process. We agree and reverse.

Appellant obtained title to a unit in Cen-tre Court Ridge Condominium in August 2012. In December 2012, Appellee, Center Court Ridge Condominium Association, Inc., foreclosed against Appellant for back assessments and interest.

When Appellant failed to appear and defend, Appellee obtained a clerk’s default against Appellant. Ultimately, the trial court entered a foreclosure judgment against Appellant for $36,029.81 and scheduled a foreclosure sale. Subsequently, the court denied Appellant’s motion to vacate the default, set aside the foreclosure judgment and cancel the foreclosure sale. The issue on appeal is whether proper service was effected.

Appellee claims it properly served process by following the procedures outlined in sections 48.181 and 48.151, Florida Statutes (2012). It claims that Appellant was served when a process server delivered the summons and complaint to Florida’s Secretary of State. Appellant claims that service should have been perfected pursuant to sections 48.181 and 48.161, Florida Statutes (2012), and because it was not, Appellant received nothing from either Appellee or the Secretary of State. It is undisputed that Appellant is a nonresident bank engaged in business in this state. As such, pursuant to section 48.181(1), Florida Statutes, Florida’s Secretary of State is the agent “on whom all process in any action or proceeding against [Appellant] ... may be served.” Section 48.161(1), Florida Statutes, provides that substituted service on a nonresident shall be made, among other methods, by leaving a copy of the process with a fee, with the Secretary of State’s Office or by mailing the copies and fee by certified mail to the Secretary of State’s Office. Notice of the service and a copy of the process must then be sent by registered or certified mail by the plaintiff to the defendant. Section 48.151, Florida Statutes, delineates another method of service of process. Notably, however, by its terms, it does not apply to substituted service or process on nonresidents. § 48.151(2), Fla. Stat. (2012). Based on these statutory provisions, Appellee had two choices to perfect service on Appellant — either perfect substituted service under section 48.161, Florida Statutes, or perfect actual service.

In this case, Appellee did not send “notice of service and a copy of the process” to Appellant by certified or registered mail, as required by section 48.161(1), Florida Statutes. Therefore, process was not perfected and the trial court lacked jurisdiction. See Pelycado Onroerend Goed B.V. v. Ruthenberg, 635 So.2d 1001, 1005 (Fla. 5th DCA 1994) (holding a trial court lacks jurisdiction when a party fails to strictly comply with the statutes regarding service).

REVERSED with instructions to withdraw the judgment and dismiss the action.

EVANDER, LAMBERT, JJ., and HARRIS, C.M., Senior Judge, concur.


text:
    Morin MAGLOIRE and Germain Jean Claude, Appellants, v. The BANK OF NEW YORK as Trustee for the certificate holders CWABS, Inc. Asset-Backed Certificates, Series 2006-23, Appellee.
    No. 4D11-4540.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.

      S.Tracy Long of Law Offices of S. Tracy Long, P.A., Deerfield Beach (withdrawn as counsel after filing brief); Morin Magloire and Germain Jean-Clause, Laud-erdale Lakes, pro se.
    Michael P. Bruning of Connolly, Geaney, Ablitt & Willard, P.C., West Palm Beach, for appellee.
   PER CURIAM.

The homeowners appeal the trial court’s order granting final summary judgment of foreclosure in favor of the bank. The homeowners argue that the trial court erred in granting the bank’s motion for summary judgment after the trial court previously dismissed the case for lack of prosecution. We agree.

On October 10, 2008, the bank filed a mortgage foreclosure complaint based on a mortgage and note executed by the homeowners in September of 2006. On October 15, 2008, the homeowners filed an answer to the complaint, in the form of a letter to the court, explaining that they had “experienced a serious hardships [sic] that have prevented [them] from making the mortgage payments on [their] primary residence.” Additionally, they stated that they were trying to work with the lender “to work out a re-instatement or re-payment plan.”

On November 19, 2009, the trial court filed a notice of intent to dismiss the bank’s complaint after there had been no record activity in the case since November 5, 2008. The trial court set a hearing on the issue, and the bank filed a statement asserting good cause as to why the action should remain pending. Within its response, the bank stated that it was currently evaluating the homeowner’s loan to determine if the homeowners would qualify for a settlement offer, and asked the court to allow the case to remain open until the bank could complete negotiations with the homeowners. On December 16, 2009, the trial court entered a final order of dismissal of the bank’s complaint, because there was “no record activity > 1 yr (since 11/5/2008) and no good cause.”

On June 28, 2010, the bank filed a motion for summary judgment. Then, on November 9, 2011, a hearing was held on the bank’s motion for summary judgment. On the same date, the trial court entered a summary final judgment of foreclosure in favor of the bank. The homeowners appeal this order.

There were no transcripts provided of the motion for summary judgment hearing, and it is therefore unknown whether the homeowners raised the issue of the previous dismissal of the case and the trial court’s subsequent lack of jurisdiction over the case. However, “the issue of subject-matter jurisdiction ... may be raised for the first time on appeal.” Rudel v. Rudel, 111 So.3d 285, 291 (Fla. 4th DCA 2013).

“Whether a court has subject matter jurisdiction is a question of law reviewed de novo.” Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005).

A trial court lacks jurisdiction to hear a case once it has been dismissed. See Gardner v. Nioso, 108 So.3d 1122,1123 (Fla. 1st DCA 2013) (“[B]y the trial court’s dismissal of the action against them, and the subsequent affirmance of that dismissal, the trial court no longer has jurisdiction over Appellees.”); Harrison v. La Placida Cmty. Ass’n, 665 So.2d 1138,1141 (Fla. 4th DCA 1996) (“Once [the defendant] was dismissed, the trial court no longer had jurisdiction over her.’); Ludovici v. McKiness, 545 So.2d 335, 336 n. 3 (Fla. 3d DCA 1989) (“A trial court lacks jurisdiction to vacate an order of dismissal without prejudice after the order becomes final. An exception to this finality is a Rule 1.540 motion. The trial court has jurisdiction to entertain a timely motion for rehearing or to revisit the cause on the court’s own initiative within the time allowed for a rehearing motion.”) (internal citations omitted); Derma Lift Salon, Inc. v. Swanko, 419 So.2d 1180, 1180-81 (Fla. 3d DCA 1982). (“The trial court’s order of dismissal entered May 11, 1982, albeit ‘without prejudice,’ was a final appealable order, subject to the further jurisdiction of the trial court only upon a timely filed motion for rehearing under Florida Rule of Civil Procedure 1.530.”) (internal citation omitted). Since there was no motion for rehearing or motion to vacate filed or ruled upon regarding the order of dismissal in the instant case, the trial court did not have jurisdiction to enter an order granting the bank’s subsequently-filed motion for summary judgment. Additionally, although the trial court’s final order of dismissal was entered “without prejudice to refile,” the bank never refiled the complaint prior to filing its motion for summary judgment.

The bank argues that the trial court’s order should be allowed to stand because it exercised its powers of “equitable jurisdiction” in granting the bank’s motion for summary judgment. However, we find the bank’s argument, basically that equitable jurisdiction can replace subject-matter jurisdiction, unconvincing. See Black’s Law Dictionary 18(c) (9th ed. 2009) (quoting William Q. de Funiak, Handbook of Modem Equity 38 (2d ed. 1956)) (“[T]he term equity jurisdiction does not refer to jurisdiction in the sense of the power conferred by the sovereign on the court over specified subject-matters or to jurisdiction over the res or the persons of the parties in a particular proceeding but refers rather to the merits. The want of equity jurisdiction does not mean that the court has no power to act but that it should not act, as on the ground, for example, that there is an adequate remedy at law.”) (emphasis added) (internal quotation marks omitted).

Therefore, we reverse the trial court’s order granting the bank’s motion for summary judgment and remand the case to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

GROSS, GERBER and CONNER, JJ., concur.

      . "[T]he action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.” Fla. R. Civ. P. 1.420(e) (emphasis added).

      . The type of jurisdiction at issue in the instant case is that of subject-matter jurisdiction. See Bernard v. Rose, 68 So.3d 946, 948 (Fla.3d DCA 2011) (referring to the trial court’s jurisdiction over a case after a dismissal for lack of prosecution as that of subject-matter jurisdiction).


author: GROSS, J.

text:
    Gordon Phelps KELLEY, III, Appellant, v. Joanna KELLEY, individually, and Joanna Kelley and Northern Trust Bank of Florida, N.A., as Co-Trustees of the Marital Trust created under the 2008 will; Bank of New York, Camille Weiss and Errett Van Nice, as Co-Trustees of the Gordon P. Kelley, Jr., Agreement, Amnesty International of the U.S.A., Inc., Cousteau Society and World Wildlife Fund, Appellees.
    Nos. 4D13-21, 4D13-576.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.

      Edward Downey and R. Lee McElroy, IV of Downey & Downey, P.A., Palm Beach Gardens, for appellant.
    Bernard Allen and Frank T. Adams of Katz Barron Squitero Faust, Miami, for appellee Joanna Kelley.
    James R. George and Tattiana Brenes-Stahl of Greenberg Traurig, P.A., Fort Lauderdale, for appelle, Northern Trust Bank of Florida, N.A.
    Douglas F. Hoffman of Rudolf & Hoffman, P.A., for appellees Amnesty International of the U.S.A., Inc., Cousteau Society and World Wildlife Fund.
   GROSS, J.

At issue is a third party’s ability to collaterally attack a foreign state’s judgment within the confínes of the Full Faith and Credit Clause. Appellant Gordon Kelley III (“Gordon III”), a son disinherited under his father’s will, challenges two orders that dismissed his actions seeking to invalidate his father’s exercise of a limited power of appointment on the grounds that his father was not legally married to his second wife, the intended beneficiary of the appointment. Specifically, Gordon III alleged his father’s 1979 Nevada divorce to a prior wife was void since neither party satisfied that state’s jurisdictional residency requirement, making the father’s marriage to his current wife bigamous-and thus void as against public policy.

Focusing on the full faith and credit aspect of the claim, a collateral attack on a foreign state’s judgment may be entertained only if the attack would be permissible in the foreign state. Since both Gordon Ill’s father and his prior wife bound themselves to the divorce decree by participating in the Nevada proceeding and since, by statute, Nevada prohibits third-party attacks on divorce decrees binding upon the parties, so too Gordon III is barred from collaterally attacking the decree in Florida. Accordingly, we affirm.

Factual Background

The seeds of this controversy were planted on February 23, 1956, when Gordon Ill’s grandfather, Gordon P. Kelley (“Gordon I”), created the Gordon P. Kelley Trust Fund (“the Kelley Trust”), an irrevocable trust benefiting his children. Per the Kelley Trust’s terms, upon Gordon I’s death, the trust estate was split into separate trust funds, with each of his children receiving “so much of the net income of such funds as the Trustees in their discretion ... deemfed] reasonably necessary to provide for the[ir] support and education.” Any remaining income not disbursed to the child would accumulate and be added to the child’s trust principal.

The Kelley Trust conferred upon each child the limited testamentary power to appoint a beneficiary for the trust principal, with the limitation that the selection fall within four recipient classes: (1) Gordon I’s lawful descendants, (2) the spouses of such descendants, (8) the child’s spouse, or (4) certain charitable organizations. Failure to make a valid appointment would result in the principal being distributed to the child’s descendants per stripes.

Relying upon this provision, Gordon Ill’s father (“Gordon Jr.”) exercised his power of appointment through Article IV(A) of his last will and testament (“the Will”), directing that his trust principal pass into a “Marital Trust.” As defined within the Will, the Marital Trust dictated that Gordon Jr.’s wife, appellee Joanna Kelley (“Joanna”), receive discretionary income during her lifetime, with the remainder passing upon her death to appellees Amnesty International of the U.S.A. Inc, the Cousteau Society, and the World Wildlife Fund. The Will expressly disinherited Gordon III.

Procedural Posture

Following Gordon Jr.’s death, Joanna, as personal representative for his estate, petitioned for administration, requesting that the Will be admitted into probate. Not succumbing to his disinherited status, Gordon III responded by filing a petition in the probate court seeking (1) to revoke probate and (2) to declare the exercise of Gordon Jr.’s power of appointment improper as conferred under the Kelley Trust. In addition, Gordon III filed a complaint in the circuit court seeking declaratory relief pursuant to sections 86.041 and 736.0201(4)(e)-(f), Florida Statutes (2010), mirroring the language of the second amended petition’s Count IV. in Count TV, Gordon III sought a declaration finding Gordon Jr.’s exercise of his power of appointment invalid since Joanna was not his legal spouse, and thus was “not a permissible appointee” under the Kelley Trust. The count alleged that in 1979 Gordon Jr.’s first wife, Holly Burguieres, “appeared in Nevada for a ‘quickie divorce’ ” and secured a divorce decree after falsely asserting she was a resident of Nevada. Evidence of the ruse was allegedly memorialized by a financial agreement confirmed and incorporated by the trial court in its final dissolution judgment, which reflects that Burguieres actually resided in Mexico City.

Alleging that neither Burguieres nor Gordon Jr. satisfied Nevada’s six-week residency requirement, Gordon III contended the Nevada court lacked subject matter jurisdiction over their case, rendering the divorce decree void. Building upon this revelation, since Gordon Jr. was still legally “married” to Burguieres, his marriage to Joanna would be bigamous— and thus void as against public policy— making Gordon Jr.’s exercise of his power of appointment in Joanna’s favor invalid, since she did not fall within the four classes of beneficiaries permitted by the Kelley Trust. As a result, Gordon III averred “all assets of the [Kelley Trust] are distributable to [himself] as the default taker.”

The Trial Court’s Order

Upon the appellees’ collective motions, the trial court entered an order dismissing Counts III and IV of the second amended petition, confirming the validity of Joanna’s marriage to Gordon Jr. With regard to Count IV, the trial court found Gordon III substantively barred from collaterally attacking the Nevada decree since Gordon Jr.’s participation in the proceeding bound himself — and Gordon III — to the judgment. Facing the same allegations as Count IV, the trial court entered a nearly identical order dismissing Gordon Ill’s complaint for declaratory relief. As the issues presented in Gordon Ill’s complaint and second amended petition overlap, both cases have been consolidated for the purposes of this appeal.

Full Faith and Credit

Gordon III contends the trial court was “not required or entitled to give full faith and credit to the [Nevada divorce decree] as neither spouse resided in Nevada thus causing the 1979 divorce decree to be void.” This claim crumbles against the Full Faith and Credit Clause of the Federal Constitution.

Since a trial court’s decision to dismiss a complaint seeking declaratory relief is afforded great deference, Palumbo v. Moore, 111 So.2d 1177, 1178 (Fla. 5th DCA 2001) (citing Travelers Ins. Co. v. Emery, 579 So.2d 798, 800 (Fla. 1st DCA 1991)), our review is for an abuse of discretion. Laganella v. Boca Grove Golf & Tennis Club, Inc., 690 So.2d 705, 706 (Fla. 4th DCA 1997). Within this evaluation, we “accept the factual allegations of the operative complaints as true and consider them in the light most favorable to the” appellant/petitioner. Knight v. Merhige, 188 So.3d 1140, 1141 (Fla. 4th DCA 2014). In the declaratory judgment setting, “ ‘[t]he test of the sufficiency of a complaint ... is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.’ ” S. Riverwalk Invs., LLC v. City of Fort Lauderdale, 934 So.2d 620, 622 (Fla. 4th DCA 2006) (quoting Golf Club v. City of Plantation, 111 So.2d 166, 171 (Fla. 4th DCA 1998)).

“The Full Faith and Credit Clause is one of several provisions in the Federal Constitution designed to transform the several States from independent sovereignties into a single, unified Nation.” Allstate Ins. Co. v. Hague, 449 U.S. 302, 322, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981) (Stevens, J., concurring). Through the clause’s application, “[a] judgment entered in one state must be respected in another provided that the first state had jurisdiction over the parties and the subject matter.” Nevada v. Hall, 440 U.S. 410, 421, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979). Where subject matter or personal jurisdiction is lacking, however, the clause is tempered by limitation. As the United States Supreme Court has explained:

[A] judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits — had jurisdiction, that is, to render the judgment. Consequently, before a court is bound by the judgment rendered in another State, it may inquire into the jurisdictional basis of the foreign court’s decree. If that court did not have jurisdiction over the subject matter or the relevant parties full faith and credit need not be given.

Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass’n, 455 U.S. 691, 704-705, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982) (internal citations and footnote omitted); Trauger v. AJ. Spagnol Lumber Co., 442 So.2d 182, 183 (Fla.1983) (“The full faith and credit clause does not ... protect a judgment which was entered by a court that did not have personal or subject matter jurisdiction in the action .... ” (citing Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940))).

Consistent with full faith and credit, a divorce decree obtained in a foreign state is impeachable in Florida only if the judgment is susceptible to collateral attack under the foreign state’s jurisprudence. See Johnson v. Muelberger, 340 U.S. 581, 589, 71 S.Ct. 474, 95 L.Ed. 552 (1951). This rule “provide[s] a substantial degree of uniformity regarding the vulnerability of divorce decrees to collateral attack,” enhancing the finality of each state’s judgments. In re Marriage of Winegard, 278 N.W.2d 505, 508 (Iowa 1979). Furthermore, collateral attacks wilt against judgments involving parties who have had their day in court; where “there has been participation by the [parties] in the divorce proceedings” and “the [parties] ha[ve] been accorded full opportunity to contest the jurisdictional issues,” any further attack on the judgment is barred by res judicata. Sherrer v. Sherrer, 334 U.S. 343, 351, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948) (footnote omitted); Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451 (1948).

In this case, Burguieres initiated the Nevada dissolution proceedings by filing a verified complaint with the trial court, in which she attested to Nevada’s limited jurisdictional requirements. After Gordon Jr. answered the complaint without raising a jurisdictional challenge, Bur-guieres appeared in court and confirmed her residency allegations. As a result, the trial court, in its written order, made a factual finding that Burguieres

is now and has been for more than six weeks preceding the filing of the complaint herein a bona fide resident of and domiciled in the State of Nevada and has been physically and corporally present in said State each and every day for said period of time, and all of said time plaintiff has had and still has the intent to make said State her home residence and domicile for an indefinite period of time.

Given the participation by both Gordon Jr. and Burguieres, Gordon Ill’s claim falls squarely within Nevada’s statutory prohibition on “all third-party attacks on Nevada divorce decrees that are binding on the parties to the divorce action.” Madden v. Cosden, 271 Md. 118, 314 A.2d 128, 132 (1974) (citation omitted). As provided by Section 125.185, Nevada Revised Statutes (2010):

No divorce from the bonds of matrimony heretofore or hereafter granted by a court of competent jurisdiction of the State of Nevada, which divorce is valid and binding upon each of the parties thereto, may be contested or attacked by third persons not parties thereto.

The driving force behind Nevada’s statutory impediment on collaterally attacking divorce decrees has its origins in the state’s decision to establish itself as a premiere divorce destination. A low barrier to attacking a Nevada divorce decree would have been bad for business. As one commentator explains:

To escape states with harsh laws, people with money (or, more frequently, wives of people with money) could get on a train and head for a “divorce mill.” Throughout much of the twentieth century, the divorce mill was Nevada. It needed the business, and moral qualms, for whatever reason, have never played a big role in Nevada jurisprudence. In 1927, Nevada reduced its residence period to three months, and in 1931, in a “frenzied attempt to head off ... threatened rivalry” from other states, Nevada reduced the residence period still further, to six weeks. “Going to Reno” became almost a synonym for getting a divorce.

Lawrence M. Friedman, A Dead Language: Divorce Law and Practice Before No-Fault, 86 Va. L. Rev. 1497, 1504-05 (2000). Since both Gordon Jr. and Burgui-eres participated in the divorce proceedings and are bound by the Nevada decree, Nevada law precludes Gordon Ill’s collateral attack. The Faith and Credit Clause therefore bars his full assault on the Nevada judgment in Florida.

Nevertheless, even overlooking this statutory bar, Gordon Ill’s claim is also ineffective as an assertion of intrinsic — as against extrinsic — fraud. Like many states, Nevada courts adhere to the rule “that a decree of divorce may be annulled by an independent proceeding for that purpose [only] upon proof of extrinsic fraud.” Colby v. Colby, 78 Nev. 150, 369 P.2d 1019, 1021 (1962) (citations omitted); Confer v. Second Judicial Dist. Court in & for Washoe Cnty., 49 Nev. 18, 234 P. 688, 689 (1925). Intrinsic fraud encompasses ‘“fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried.’ ” Thompson v. Crawford, 479 So.2d 169, 183-84 (Fla. 3d DCA 1985) (quoting DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla.1984)); see also Calvert v. Calvert, 61 Nev. 168, 122 P.2d 426, 427 (1942). Extrinsic fraud, on the other hand, is fraud “the effect of which prevents a party from having a trial, or from presenting all of his case to the court, or which operates, not upon the matters pertaining to the judgment itself, but to the manner in which it is procured.” Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061, 1061 (1934) (citation omitted).

In this case, since Gordon Jr. appeared through counsel and the face of the record depicts competent, substantial evidence from which the Nevada trial court could find the existence of jurisdiction, the fraud asserted is intrinsic — i.e., Burguieres lied. See, e.g., Colby, 369 P.2d at 1021 (“Nothing appears from the record before us tending to establish that Benjamin was prevented by Sarah’s conduct from a fair opportunity to assert his rights in or present his defenses to the Nevada action.... Clearly the ‘fraud’ here contended for is intrinsic; it is not extrinsic.”). Accordingly, absent assertions of extrinsic fraud, Gordon Ill’s collateral attack lacks sufficient backing to survive dismissal.

Florida Jurisprudence

To blunt our ruling, Gordon III contends the Florida Supreme Court’s decision in In re Estate of Kant, 272 So.2d 153 (Fla.1972), provides the child of a decedent, as a lineal descendant, with unbridled “standing to challenge and impeach the validity of a divorce decree [in Florida] when it will affect the validity of a later marriage to the reputed surviving spouse.” In Kant, the deceased’s children alleged in an answer to a petition for letters of administration that the deceased’s marriage to his current wife was void since the wife’s prior divorce to a different spouse in Mexico had never been “rendered.” In re Estate of Kant, 265 So.2d 524, 525 (Fla. 3d DCA 1972). At trial, the children presented evidence that the divorce decree was actually a forgery. Kant, 272 So.2d at 155. As a result, the trial court denied the petition for letters of administration, finding that the current wife “was in fact not the widow of the deceased because she had not been lawfully divorced from her prior husband.” Id.

On appeal, the central issue was whether the children had standing “to attack collaterally the validity of the Mexican divorce.” Id. at 156. Noting that the “answer to this question depends upon whether the ... children had any rights prejudiced by the alleged Mexican divorce decree,” our Supreme Court held the children “did have such rights because at the time of such alleged divorce they, as lineal descendents (sic) of their father, ... were his sole heirs.” Id. As a result, since the children were “strangers to the appeal,” “[b]eing neither parties to the action, nor entitled to manage the cause, nor appeal from the judgment,” the court held “they [we]re by law allowed to impeach it.” Id. (quoting Freeman on Judgments, Vol. 1, page 636, Section 819).

The crucial difference between Kant and this case is that the Full Faith and Credit Clause was not at issue, since “[sjtates are not required to give full faith and credit to divorces rendered in foreign nations ” such as Mexico. In re Schorr’s Estate, 409 So.2d 487, 489 (Fla. 4th DCA 1981) (emphasis added). Bound by the precepts of full faith and credit, Gordon III was required — unlike the children in Kant — to demonstrate his ability to bring the action under the foreign state’s jurisprudence. Since, as discussed previously, Gordon III failed to meet this hurdle, his action was impotent and properly subject to dismissal.

Affirmed.

CIKLIN, J., and KASTRENAKES, JOHN, Associate Judge, concur.

      . We affirm without discussion the dismissal of Count III, which sought to invalidate Gordon Jr.’s exercise of his power of appointment upon technical grounds.


text:
    Steve BUCK, as Personal Representative of the Estate of Joan Brown, deceased, Appellant, v. COLUMBIA HOSPITAL CORPORATION OF SOUTH BROWARD, d/b/a Westside Regional Medical Center, a Florida company, Appellee.
    No. 4D13-2165.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.

      Jonathan M. Streisfeld and Scott J. Weiselberg of Kopelowitz Ostrow Ferguson Weiselberg Keechl, Fort Lauderdale, for appellant.
    Fann & Petruccelli, P.A., Fort Lauder-dale, and Mark Hicks, Dinah Stein, and Shannon Debus-Horn of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for appel-lee.
   FORST, J.

The trial court dismissed the complaint filed by Appellant Steve Buck based on his failure to comply with the pre-suit requirements of Chapter 766, Florida Statutes (2012). Appellant argues the trial court erred by applying Chapter 766 to his complaint because the complaint stated a claim of simple negligence, as opposed to medical negligence. We disagree with Appellant and affirm.

Background

Appellani/Plaintiff Steve Buck, as personal representative of the decedent’s estate, filed a complaint against Appellee/De-fendant Westside Regional Medical Center for the wrongful death of the decedent. The complaint alleged the following facts:

• On or about May 5, 2012, [the decedent] was brought to Westside and admitted due to complications related to her chronic obstructive pulmonary disease [“COPD”].

• On or about May 7, 2012, [the decedent] was scheduled to have x-rays; consequently, she was transported from her room to the radiology floor.

• Prior to the x-rays being taken, [Appel-lee’s] transport techs moved [the decedent] from the transport gurney and lifted her onto the x-ray table. In the course of moving [the decedent] from the gurney to the x-ray tables, [Appellee’s] employees and/or agents accidentally dropped [the decedent] onto the hard x-ray table surface causing her to sustain a fracture of her lumbar spine.

Because of the decedent’s age, medical condition, and other factors, the treatment options for the broken back were limited, and her condition began to decline. The complaint alleges that the broken back, “sustained at the hands of [Appellee],” ultimately caused the accidental death of the decedent.

Appellee moved to dismiss the complaint, alleging that Appellant failed to comply with the pre-suit requirements of Chapter 766, Florida Statutes, which covers causes of action in medical negligence cases. Section 766.106 defines a “ ‘[c]laim for medical negligence’ or ‘claim for medical malpractice’ [as] a claim, arising out of the rendering of, or the failure to render, medical care or services.” § 766.106(l)(a), Fla. Stat. (2012).

At a hearing Appellee’s motion, Appellant argued that the pre-suit requirements of Chapter 766 do not apply because the four corners of the complaint in this case state a cause of action in general negligence, as opposed to medical negligence. The trial court ultimately disagreed and granted Appellee’s motion to dismiss. The complaint was dismissed, with prejudice, and a final judgment was entered in favor of Appellee.

On appeal, Appellant argues that the trial court erred by dismissing his complaint because the four corners of the complaint state a cause of action in ordinary negligence as opposed to medical negligence.

Decedent was injured as a Result of Medical Negligence

We review an order dismissing a complaint with prejudice de novo. Stubbs v. Plantation Gen. Hosp. Ltd. P’ship, 988 So.2d 683, 684 (Fla. 4th DCA 2008) (“Stubbs I”) (quoting Palumbo v. Moore, 111 So.2d 1177, 1178 (Fla. 5th DCA 2001)). “A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences from those facts[;] ... [a] court may not properly go beyond the four corners of the complaint in testing the legal sufficiency of the allegations set forth therein.” Id. (internal quotations and citations omitted).

A claim for negligence is subject to Chapter 766’s pre-suit requirements “if the wrongful act is directly related to the improper application of medical services and the use of professional judgment or skill.” , Stubbs v. Surgi-Staff, Inc., 78 So.3d 69, 70 (Fla. 4th DCA 2012) (“Stubbs II ”) (internal quotations and citations omitted). On the other hand, “[cjlaims of simple negligence or intentional torts which do not involve the provision of medical services do not require compliance with Chapter 766 presuit requirements.” Indian River Mem’l Hosp. v. Browne, 44 So.3d 237, 238 (Fla. 4th DCA 2010). When determining whether a complaint alleges a cause of action in medical negligence versus simple negligence, “[t]he key inquiry is whether the action arises out of medical diagnosis, treatment, or care.” Stubbs II, 18 So.3d at 70-71 (internal quotations and citations omitted).

In addressing this issue, balance is required. On the one hand, “[ijrreparable harm can be shown where a court incorrectly denies a motion to dismiss for failure to follow pre-suit requirements, as doing so would eliminate the cost-saving features the Act was intended to create.” Palms W. Hosp. Ltd. P’ship v. Burns, 83 So.3d 785, 788 (Fla. 4th DCA 2011) (citing Dr. Navarro’s Vein Ctr. of the Palm Beach, Inc. v. Miller, 22 So.3d 776, 778-79 (Fla. 4th DCA 2009)). On the other hand, the Florida Supreme Court has declared “that the pre-suit screening procedures should be read in a way which favors access to the courts.” Id. (citing Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002)).

The Florida Supreme Court, in Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla.1992), addressed the pertinent “medical negligence” terms:

First, there is no ambiguity to clarify in the words “diagnosis,” “treatment,” or “care,” and we find that these words should be accorded their plain and unambiguous meaning. In ordinary, common parlance, the average person would understand “diagnosis, treatment, or care” to mean ascertaining a patient’s medical condition through examination and testing, prescribing and administering a course of action to effect a cure, and meeting the patient’s daily needs during the illness. This parallels the dictionary definitions of those terms. According to Webster’s Third International Dictionary (1981), “diagnosis” means “the art or act of identifying a disease from its signs and symptoms.” Id. at 622. “Treatment” means “the action or manner of treating a patient medically or surgically.” Id. at 2435. “Care” means “provide for or attend to needs or perform necessary personal services (as for a patient or child).” Id. at 338. Likewise, in medical terms, “diagnosis” means “[t]he determination of the nature of a disease.” Stedman’s Medical Dictionary 428 (25th ed. 1990). “Treatment” means “[mjedical or surgical management of a patient.” Id. at 1626. And “care” means “the application of knowledge to the benefit of ... [an] individual.” Id. at 249.

Id. at 1187.

The complaint at issue in this case alleges the decedent sustained injuries while she was in the hospital being treated for her COPD. During the course of her treatment, and while she was being transported from her gurney to an x-ray table by hospital employees and/or agents, she was dropped and injured. As such, this case is very similar to Stubbs II. In that case, we held the trial court correctly applied the Chapter 766 pre-suit requirements to a complaint that alleged “[a] hospital orderly ... instructed [the appellant] to move from a test bed to a gurney and that she fell while attempting this due to [the orderly’s] negligence in failing to exercise reasonable care in- assisting her and in failing to prevent her fall.” Stubbs II, 78 So.3d at 70, 71.

We are aware that our holding in Stubbs II was based in part upon discovery which revealed that the “orderly” referenced in the complaint “was a nurse, not an orderly” and the court’s decision referenced the nurse’s “provision of medical care and services.” Id. at 71. Moreover, Judge May’s concurring opinion presents “[her] view [that] once a medical procedure has begun, whatever happens during that procedure should be subject to the requirements for filing a medical negligence action if the allegations are directed at medical personnel.” Id. at 72 (May, J., concurring) (emphasis added). In the instant case, we do not know if the individuals who were transporting the decedent were doctors, nurses, “transport tech,” or orderlies. However, we find that is not determinative, as the complaint itself leads to the conclusion that these hospital employees or agents were engaged in “the rendering of ... medical care or services” in that they were involved in lifting the decedent from the transport gurney and placing her bn the x-ray table as part of a medical procedure (medical imaging by use of x-rays). As such, they were providing for or attending to the patient’s needs and/or performing “necessary personal services.” Silva, 601 So.2d at 1187.

Our conclusion finds support in the case law addressing this issue that found that the complaint constituted a claim of medical negligence: Stubbs II, 78 So.3d at 71-72 (patient was being moved from a “test bed” to a gurney); Indian River Memorial Hospital, 44 So.3d at 238 (patient fell out of a stretcher and the medical negligence related to the failure to properly secure her on the stretcher). See also S. Miami Hosp. v. Perez, 38 So.3d 809, 812 (Fla. 3d DCA 2010) (claim for damages attributable to patient’s fall from a hospital bed in the critical care unit deemed a medical negligence action); Neilinger v. Baptist Hosp. of Miami, Inc., 460 So.2d 564, 566 (Fla. 3d DCA 1984) (patient “was descending from an examination table under the direction and care of hospital employees”); Corbo v. Garcia, 949 So.2d 366, 368-69 (Fla. 2d DCA 2007) (plaintiff was injured while connected to physical therapy “electric stimulation” machinery that was allegedly not properly maintained); Goldman v. Halifax Med. Ctr., Inc., 662 So.2d 367, 368 (Fla. 5th DCA 1995) (the complaint alleges that the operator of mammographic equipment “negligently applied excessive pressure and caused one of [the plaintiffs] silicone breast implants to rupture” and that the equipment had not been properly calibrated); St. Anthony’s Hosp., Inc. v. Lewis, 652 So.2d 386, 387 (Fla. 2d DCA 1995) (“The duty of the hospital to select and review health care personnel arises under the medical malpractice statute [and] the negligent medical treatment ‘is both necessary to the claims against the [hospital] and inextricably connected to them.’”) (quoting Martinez v. Lifemark Hosp. of Fla., Inc., 608 So.2d 855, 857 (Fla. 3d DCA 1992)).

The cases in which the court found that the claims related to “ordinary” negligence are markedly different: Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 470 (Fla. 3d DCA 2006) (nurse spilled hot tea on patient); Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 219 (Fla. 4th DCA 2005) (concluding the medical treatment had not begun when the plaintiff was hit in the head with a dental x-ray machine); Tenet St. Mary’s, Inc. v. Serra-tore, 869 So.2d 729 (Fla. 4th DCA 2004) (patient injured when hospital employee, attempting to return the patient’s chair to an upright position by kicking the footrest, inadvertently kicked the patient); Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1004 (Fla. 3d DCA 1997) (finding that the “regimented collection of urine samples is not a ‘medical service’ ”). It is further noted that none of these “ordinary negligence” decisions were predicated on the negligent employee’s job title or responsibilities, i.e. whether they were “medical personnel.”

Conclusion

We find that the instant action arises out of the provision of medical care and is “directly related to the improper application of medical services and the use of professional judgment or skill.” See Stubbs II, 78 So.3d at 70 (internal quotations and citations omitted). Accordingly, the trial court correctly dismissed the complaint by applying the pre-suit requirements of Chapter 766, and we affirm.

Affirmed.

GROSS and GERBER, JJ., concur.


text:
    J.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-973.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   FORST, J.

Appellant, a child, appeals the trial court’s final disposition finding him guilty of loitering and prowling. Appellant argues that the trial court erred in denying his motion for judgment of dismissal because the State faded to present a prima facie case of the elements of the offense. We agree and reverse.

Background

A law enforcement officer was responding to a report of a “burglary in progress” at 4:00 in the morning in a residential neighborhood when he came upon Appellant walking in the area. Appellant was the only person noticed by the officer in this area. He pulled up next to Appellant in a marked police vehicle while he was in full police uniform. The officer stopped his vehicle, exited, and said, “Police stop,” because Appellant was in the area where the crime was committed and matched the description in the BOLO for the burglary (black male wearing a red shirt). Appellant made eye contact -with the officer then took off running. The officer chased Appellant but eventually lost sight of him.

After running from multiple officers, Appellant was found hiding behind an air conditioning unit in the bushes behind a building. An officer observed Appellant removing his shirt in an effort to conceal himself. Appellant was arrested and taken into custody. At the time of his arrest, Appellant explained that he did not live in the immediate area but he was on his way home from his girlfriend’s house.

The State charged Appellant with loitering and prowling. At trial, Appellant moved for judgment of dismissal, arguing that it is not unusual for a person to be walking down the street in a red shirt in a residential area at this time of day and that the alleged crime (“loitering and prowling”) was not completed when the officers came upon Appellant. The trial court denied the motion, as well as Appellant’s renewed motion at the end of his case. Ultimately, Appellant was found guilty of loitering and prowling. This appeal followed.

The State has not established both elements of the test for establishing loitering and prowling.

We review a motion for judgment of dismissal de novo. A.W. v. State, 82 So.3d 1136, 1138 (Fla. 4th DCA 2012). A motion for judgment of dismissal must be granted if the evidence, viewed in the light most favorable to the State, does not support a conviction. Id.

The offense of loitering and prowling consists of two elements: “(1) the defendant loitered or prowled ‘in a place, at a time, or in manner not usual for law-abiding individuals,’ and (2) the loitering was under ‘circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.’” E.F. v. State, 110 So.3d 101, 104 (Fla. 4th DCA 2013) (quoting § 856.021, Fla. Stat. (2011)).

The first element is proven when the State establishes that “the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved.” Id. (quoting E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999)); see also P.R. v. State, 97 So.3d 980, 983-84 (Fla. 4th DCA 2012) (holding that the first element of loitering and prowling requires proof that the officer observed “unusual conduct indicating incipient criminal activity”); V.E. v. State, 539 So.2d 1170, 1171 (Fla. 3d DCA 1989) (“This element has been read to require a threat of immediate, future criminal activity.”) (emphasis added). “A mere vaguely suspicious presence is insufficient to satisfy this element.” E.F., 110 So.3d at 104 (internal quotations and citation omitted). The idea is that the defendant engaged in “suspicious criminal conduct which comes close to, but falls short of, actual commission or attempted commission of a substantive crime.” Id. (quoting B.J. v. State, 951 So.2d 100, 103 (Fla. 4th DCA 2007)); see also P.R., 97 So.3d at 983 (“Rather, the defendant’s behavior must point toward an imminent breach of the peace or threat to public safety.”) (internal quotations and citation omitted).

In the instant case, the facts do not indicate “incipient behavior” pointing towards the threat of an immediate, future crime; rather, the fact that Appellant was walking early in the morning with no one else around is “[a] mere vaguely suspicious presence.” E.F., 110 So.3d at 104; V.E., 539 So.2d at 1171. Although Appellant matched the description of the BOLO for the earlier burglary and was in the same area, no testimony was presented to indicate that Appellant was there to commit another burglary or some other offense or was otherwise threatening public safety.

Because it is clear that the State failed to present sufficient evidence to satisfy the first element of the offense, we need not address the sufficiency of the evidence as to the second element. Where sufficient evidence was not presented to prove a prima facie case for loitering and prowling, denying Appellant’s motion for judgment of dismissal was improper. We therefore reverse the final disposition encompassing a finding of guilt and adjudication of delinquency as to the loitering and prowling charge.

Reversed.

STEVENSON and CIKLIN, JJ„ concur.

      . BOLO is the acronym for "Be on the Lookout.”

      . The issue of whether the police had reasonable suspicion to detain and question Appellant regarding the recent reported burglary is not at issue in this appeal, which involves only the separate and specific charge of loitering and prowling.