author: LEVINE, J.

text:
    STATE of Florida, Appellant, v. Betsy Michelle SANCHEZ, Appellee.
    No. 4D12-2696.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Rehearing En Banc Denied March 4, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant.
    David J. Joffe of Joffe Law, P.A., Fort Lauderdale, for appellee.
   LEVINE, J.

The state appeals the order dismissing charges related to drug trafficking against appellee. The trial court found that because appellee was a licensed medical assistant and nurse practitioner, her alleged crimes would fall under section 893.13(8)(a), Florida Statutes (2009), and not under section 893.135(l)(c), Florida Statutes (2009), as charged. We find that the trial court erred in granting appellee’s motion to dismiss and conclude that appel-lee is not a practitioner as defined under the plain language of section 893.02(20).

Appellee was charged with nine offenses, including trafficking in oxycodone, conspiracy to traffic in oxycodone, unlicensed practice of health care profession, racketeering, and conspiracy to commit racketeering. As to the trafficking and conspiracy to traffic charges, the state alleged that appellee knowingly sold or delivered to a person “by means of a prescription written in bad faith and not in the course of professional practice,” various controlled substances, contrary to sections 893.135(l)(c) and 893.05. Appellee filed a motion to dismiss arguing that because she was a licensed medical assistant and nurse practitioner, her alleged crimes would fall under section 893.13(8)(a. The state argued that appellee was not a practitioner pursuant to the relevant statutory authority, and as such, should not be charged under section 893.13(8)(a). The trial court agreed with appellee and dismissed six counts and four predicate incidents. The state timely appeals the decision of the trial court.

We review de novo a trial court’s order granting a motion to dismiss a criminal information. State v. Wright, 65 So.3d 1203, 1204 (Fla. 4th DCA 2011). We also review de novo a trial court’s interpretation of a statute. State v. Gonzalez, 121 So.3d 625, 628 (Fla. 4th DCA 2013).

Appellee was charged under sections 893.135(l)(c) and 893.05. Section 893.135(l)(c) provides:

(1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s.893.13:
(c) 1. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydromor-phone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 893.03(l)(b), (2)(a), (3)(c) 3., or (3)(c)4., or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If the quantity involved:
a.Is 4 grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $50,000.
b. Is 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant shall be ordered to pay a fine of $100,000.
c. Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.

Section 893.05(1) states:

A practitioner, in good faith and in the course of his or her professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance, or the practitioner may cause the same to be administered by a licensed nurse or an intern practitioner under his or her direction and supervision only. A veterinarian may so prescribe, administer, dispense, mix, or prepare a controlled substance for use on animals only, and may cause it to be administered by an assistant or orderly under the veterinarian’s direction and supervision only.

The trial court determined that appellee should have been charged under section 893.13(8). That statute provides:

(8)(a) ... [A] prescribing practitioner may not:
1. Knowingly assist a patient, other person, or the owner of an animal in obtaining a controlled substance through deceptive, untrue, or fraudulent representations in or related to the practice of the prescribing practitioner’s professional practice;
2. Employ a trick or scheme in the practice of the prescribing practitioner’s professional practice to assist a patient, other person, or the owner of an animal in obtaining a controlled substance;
3. Knowingly write a prescription for a controlled substance for a fictitious person; or
4. Write a prescription for a controlled substance for a patient, other person, or an animal if the sole purpose of writing such prescription is to provide a monetary benefit to, or obtain a monetary benefit for, the prescribing practitioner.
(c) A person who violates paragraph (a) commits a felony of the third degree
(d) Notwithstanding paragraph (c), if a prescribing practitioner has violated paragraph (a) and received $1,000 or more in payment for writing one or more prescriptions or, in the case of a prescription written for a controlled substance described in s. 893.135, has written one or more prescriptions for a quantity of a controlled substance which, individually or in the aggregate, meets the threshold for the offense of trafficking in a controlled substance under s. 893.1[3]5, the violation is reclassified as a felony of the second degree ....

The trial court determined that appellee should have been charged under section 893.13(8), instead of section 893.135(l)(c), because the trial court concluded that ap-pellee was a practitioner. However, the relevant statute, section 893.02(20), Florida Statutes (2009), defines “practitioner” as follows:

a physician licensed pursuant to chapter 458, a dentist licensed pursuant to chapter 466, a veterinarian licensed pursuant to chapter 474, an osteopathic physician licensed pursuant to chapter 459, a natu-ropath licensed pursuant to chapter 462, or a podiatric physician licensed pursuant to chapter 461, provided such practitioner holds a valid federal controlled substance registry number.

In appellee’s motion to dismiss, she alleged that she was a licensed medical assistant and nurse. Pursuant to the plain language of section 893.02(20), a medical assistant or nurse is not listed under the definition of practitioner, nor does a medical assistant or nurse fall within the meaning of “practitioner.” Appellee is neither a physician, pursuant to chapter 458, 459 or 461; a dentist, pursuant to chapter 466; a veterinarian, pursuant to chapter 474; nor a naturopath, pursuant to chapter 462.

Further pursuant to “expressio uni-us est exclusio alterius,” a canon of statutory interpretation, the expression of one thing implies the exclusion of others. Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996). Clearly, had the legislature wanted to include licensed medical assistant or nurse within the definition of “practitioner” in section 893.02(20), it would have done so. Since appellee is not a “practitioner” under the statutory definition, section 893.05(1), which applies only to practitioners, would not apply.

Even assuming, arguendo, that appellant was a practitioner, State v. Gonzalez, 121 So.3d 625 (Fla. 4th DCA 2013), would not change the result of this case because it held that a practitioner may be charged under either section 898.135(l)(e), the statute under which appellant was charged, or section 893.13(8), the statute under which appellant claims she should have been charged. Accordingly, we reverse and remand for reinstatement of the charges.

Reversed and remanded.

WARNER and GROSS, JJ., concur.


source: Caselaw Access Project

author: CONNER, J.

license: Public Domain

text:
    HOLLYWOOD FIRE FIGHTERS, LOCAL 1375, IAFF, INC., Appellant, v. CITY OF HOLLYWOOD, Appellee.
    No. 4D12-2861.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Noah Scott Warman of Sugarman & Susskind, P.A., Coral Gables, for appellant.
    David C. Miller, Denise M. Heekin and James C. Crosland of Bryant Miller Olive, P.A., Miami, and Paul T. Ryder, Jr. of Law Offices of Paul T. Ryder, Jr., P.A., Sunrise, for appellee.
    Thomas W. Brooks of Meyer, Brooks, Demma & Blohm, P.A., Tallahassee for amicus curiae Florida Education Association.
    Paul A. Donnelly of Donnelly and Gross, P.A., Gainesville, for amicus curiae Communications Workers of America.
    G. Hal Johnson of Florida Police Benevolent Association, Tallahassee, for amicus curiae Florida Police Benevolent Association.
    Richard A. Sicking, Coral Gables, for amicus curiae Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO.
    Julie O. Bru, City Attorney, Diana Vizcaino, Assistant City Attorney, and John A. Greco, Assistant City Attorney, Miami, for amicus curiae City of Miami.
   CONNER, J.

The constitutional right of public employees to collectively bargain with their employer and the interrelated constitutional right of a bargaining unit to be free from governmental impairment of contracts with its employer are the heart of this appeal. Hollywood Fire Fighters Local 1375 (“the Union”) argues that the Public Employees Relations Commission’s (“PERC”) interpretation of section 447.4095(1), Florida Statutes (2013), which permits local governments to declare a “financial urgency” to reopen a collective bargaining agreement, violates these two constitutional rights. We disagree with the First District’s decision in Headley v. City of Miami, 118 So.3d 885 (Fla. 1st DCA 2013), which considered the same issues raised in this case, and reverse PERC’s dismissal of the Union’s unfair labor practice claim against the City of Hollywood (“the City”). We also certify conflict with Headley.

Factual Background

The Union is the bargaining unit that represents non-managerial firefighters employed by the City. The City and the Union are parties to a collective bargaining agreement (“CBA”); the one at issue in this ease took effect on October 1, 2009 and expired on September 30, 2012.

In early 2011, the City became aware that due to declining revenues, there would be a general fund shortfall of about $8.6 million for Fiscal Year 2011 (“FY2011”) and a $25 million shortfall for Fiscal Year 2012 (“FY2012”). The City implemented some measures to address the mid-year shortfall, including cutting operating expenses, deferring most capital improvement projects, and asking vendors to lower their prices. This did not result in enough savings; therefore, on May 18, 2011, the City Commission declared financial urgency for both FY2011 and FY2012. It adopted a separate resolution for each of those fiscal years, but at the time, it had not finalized its budget or adopted its millage rate for FY2012.

Representatives of the City and Union met on June 3, 2011 to bargain over the impact of the financial urgency for FY2011. The Union met with the City under protest. The City made proposals to reduce wages and overtime and increase the length of the workweek for FY2011. The Union proposed layoffs and tax increases. The City estimated it would have to lay off forty-six firefighters to resolve the shortfall for FY2011, as taxes could not be raised mid-fiscal year. Layoffs of that magnitude would result in a 50% reduction in service.

The City declared an impasse on June 10, 2011, and at a City Commission meeting on June 13, 2011, unilaterally imposed the wage and workweek changes proposed for FY2011. The following day, the City asked PERC to appoint a special magistrate to resolve the impasse. The Union informed the magistrate that it would not participate in any special magistrate proceedings.

The City and Union met on July 25, 2011 to bargain over the impact of the financial urgency for FY2012. The City presented a proposal for $5.3 million in reductions. In addition to the FY2011 changes, the City sought health insurance and pension reductions. The Union filed an unfair labor practice charge as to both FY2011 and FY2012 before any impasse was declared for FY2012.

Proceedings before the Public Employees Relations Commission

The Union alleged that the City committed unfair labor practices by (1) declaring a financial urgency for both FY2011 and FY2012 when none existed; (2) failing to participate in impasse proceedings before declaring financial urgency for FY2011; and (3) bargaining in bad faith. The Union also argued section 447.4095 (“the financial urgency statute”) was unconstitutional. An evidentiary hearing was held before a PERC hearing officer. The hearing officer, after making extensive factual determinations and conclusions of law, recommended the Union’s unfair labor practice charges be dismissed. Both sides filed exceptions to the hearing officer’s conclusions. Neither party objected to the hearing officer’s factual findings.

PERC issued a final order adopting the hearing officer’s findings of fact and conclusions of law. PERC held that the City demonstrated a compelling governmental interest by demonstrating that a financial urgency existed, and also held that the City was not required to complete impasse resolution prior to unilaterally modifying the CBA.

Whether Section 44.7.4,095, Florida Statutes, As Applied, Violates the Constitutional Rights to Collectively Bargain and to Contract

The Union’s primary argument is that the financial urgency statute, as interpreted by PERC, violates the Union’s right to collectively bargain under article 1, section 6 of the Florida Constitution and its right to contract under article 1, section 10 of the Florida Constitution, because the statute impermissibly allows for unilateral changes to CBAs. The Union asserts an as-applied challenge, not a facial challenge.

Unless allowed by law, a unilateral change in a term or condition of employment constitutes an unfair labor practice. Commc’ns Workers of Am. v. Indian River Cnty. Sch. Bd., 888 So.2d 96, 100 (Fla. 4th DCA 2004). PERC is statutorily authorized to correct an unfair labor practice through a variety of options. See § 447.503(6), Fla. Stat. (2012).

A governmental entity’s ability to unilaterally change a bargaining agreement to address a revenue shortfall was addressed in Chiles v. United Faculty of Florida, 615 So.2d 671 (Fla.1993). In Chiles, various public employee unions were unable to come to an agreement with the State over pay increases. The Legislature resolved the impasse by authorizing a 3% pay raise, and the unions ratified it. Later, state officials projected a shortfall in public revenues, and the Legislature first postponed and then eliminated the raises in response to the shortfall. The unions sued, arguing the legislative action violated the right to collectively bargain and constituted an impermissible impairment of their right to contract. Id. at 672. Our supreme court first noted that the agreement providing for a 3% pay raise was a fully enforceable contract and that once the Legislature accepted and funded the agreement, “the state and all its organs are bound by that agreement under the principles of contract law.” Id. at 672-73. The court acknowledged that the legislature must have leeway to deal with bona fide emergencies, but also noted that the right to contract protected by the Florida Constitution severely limits the Legislature’s power to alter a contract. Id. at 673. Thus, the court held, “the legislature has authority to reduce previously approved appropriations to pay public workers’ salaries made pursuant to a collective bargaining agreement, but only where it can demonstrate a compelling state interest.” Id. at 673. However, before exercising the authority to reduce appropriations, “the legislature must demonstrate no other reasonable alternative means of preserving its contract with public workers, either in whole or in part.” Id. The court then observed that political expedience alone is not a compelling reason to change a contract. Id. “Rather, the legislature must demonstrate that the funds are available from no other possible reasonable source.” Id. (emphasis added). The court held the Legislature had failed to meet this test, and ordered the reinstatement of pay raises. Id.

After Chiles, the Legislature enacted section 447.4095, Florida Statutes, which states:

In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the bargaining agent or its representative shall meet as soon as possible to negotiate the impact of the financial urgency. If after a reasonable period of negotiation which shall not exceed 14 days, a dispute exists between the public employer and the bargaining agent, an impasse shall be deemed to have occurred, and one of the parties shall so declare in writing to the other party and to the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section.

§ 447.4095, Fla. Stat. (2013).

Neither the statute, nor any other provision of Chapter 447 defines the term “financial urgency.” In Headley, as in this case, PERC defined “financial urgency” as “a dire financial condition requiring immediate attention and demanding prompt and decisive action, but not necessarily a financial emergency or bankruptcy.” Headley, 118 So.3d at 892. The First District adopted that definition, and so do we.

However, we disagree with the First District’s application of Chiles to section 447.4095. After concluding PERC’s definition of financial urgency was correct, the First District went on to conclude:

The existence of such a financial condition is a compelling state interest that can justify a unilateral modification of a CBA, but based on the plain language of the statute, section 447.4095 may only be invoked if the financial condition requires modification of the agreement. Thus, if the financial condition can be adequately addressed by other reasonable means, then a modification of the agreement is not “required.” If, however, the other reasonable alternatives available to the local government are not adequate to address the financial condition facing the local government, then section 447.4095 permits the local government to unilaterally modify the CBA.

Id. (footnote omitted). The First District asserted the above articulation “is similar to the test applied in Chiles.” Id. However, later in the opinion, the First District noted that in discussing the second prong of the test, the supreme court in Chiles stated that “the legislature must demonstrate that the funds are available from no other possible reasonable source.” Id. at 893 (quoting Chiles, 615 So.2d at 673). The First District then said:

However, we are not persuaded that this restrictive standard is constitutionally mandated or that it should be extended to section 447.4095. Accordingly, we conclude that in a proceeding under section 447.4095, the local government is not required to demonstrate that funds are not available from any other possible source to preserve the agreement; instead, the local government must only show that other potential cost-saving measures and alternative funding sources are unreasonable or inadequate to address the dire financial condition facing the local government.

Id.

By asserting that the language “the legislature must demonstrate that the funds are available from no other possible reasonable source” is not constitutionally mandated and should not be extended to section 447.4095, it appears to us that the First District adopted a modified Chiles test. District courts cannot alter the holding of Chiles with respect to the authority of the government to impair a contract and violate the union’s right to collectively bargain. See Hoffman v. Jones, 280 So.2d 431, 440 (Fla.1978) (holding that a district court does not have the authority to overrule supreme court precedent).

The hearing officer in this case specifically rejected the application of the second prong of the Chiles test in deciding whether the City engaged in an unfair labor practice. Although PERC did not specifically state in the final order whether it was applying the second prong, it appears from the language of the order that the second prong was not applied. Thus, we reverse and direct PERC to apply the Chiles standard in determining whether the City engaged in an unfair labor practice.

Because we disagree with the appropriate constitutional standard to be applied to section 447.4095, we certify conflict with the First District’s decision in Headley v. City of Miami, 118 So.3d 885 (Fla. 1st DCA 2013).

Reversed and remanded.

WARNER, J., and LEYENSON, JEFFREY R., Associate Judge, concur.

      . The hearing officer also held that he lacked the authority to rule on the constitutionality of a statute.


author: PER CURIAM.

text:
    Thomas F. SCOTT, Appellant, v. REFLECTIONS OF SEBASTIAN, LLC, Appellee.
    No. 4D12-3864.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Rich Stringer of The Stringer Firm, Sebastian, for appellant.
    John M. Stewart of Stewart, Evans, Stewart & Emmons, Vero Beach, for ap-pellee.
   PER CURIAM.

Thomas F. Scott appeals a final judgment entered for Reflections of Sebastian, LLC following a bench trial. The trial court barred Scott from presenting evidence or testifying at trial, as a sanction for Scott’s failure to comply with certain discovery deadlines. The trial court made a finding that the conduct was willful, although there was no evidence that it was. Moreover, the failure could be attributed to Scott’s prior counsel and therefore was not commensurate with the offense. We reverse the final judgment and the order imposing sanctions.

Reflections filed a complaint against Scott for breach of a promissory note. Scott filed a pro se answer but obtained counsel during discovery. After Scott failed to comply with several discovery deadlines in a pre-trial order, Reflections moved for sanctions. Neither Scott nor his counsel attended the hearing on the motion. Following the hearing, the court barred Scott from presenting any evidence or witnesses at trial. The court ruled Scott could testify on his own behalf if he allowed himself to be deposed by a certain date. The court did not find that Scott had acted willfully or contumaciously in failing to comply with the pre-trial order.

A few weeks later, and shortly before trial, Scott obtained new counsel. He moved to continue the trial and to vacate the sanctions order due to excusable neglect, contending that the missed discovery deadlines had been the fault of his prior counsel. Scott also asserted that his prior counsel had failed to inform him of the sanctions hearing or the resulting order.

When the parties appeared for trial, the court denied the continuance and did not allow Scott to present any evidence in support of his motion to vacate. The court also ruled Scott could not testify on his own behalf, finding Scott had not presented himself for deposition by the deadline in its prior order. This ruling was based on assertions by Reflections’ counsel, who contended Scott had made himself available only on the day of the court-ordered deadline, knowing that Reflections’ counsel was unavailable on that date. Scott’s counsel asserted he did not know of that unavailability, as it had been communicated only to Scott’s prior counsel. The court did not hear any evidence on these issues, but proceeded with trial and entered final judgment for Reflections. The final judgment contained a finding that Scott’s failures to provide discovery and appear for deposition were “willful, deliberate, and contumacious and without reasonable justification for non-compliance.”

We review an order imposing sanctions for an abuse of discretion. Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004). Although a trial court may impose a “broad spectrum of sanctions” for failure to obey a court order, “[t]he sanction chosen must be commensurate with the offense.” Kamhi v. Waterview Towers Condo. Ass’n, 793 So.2d 1033, 1036 (Fla. 4th DCA 2001). An order barring a party from presenting evidence and testimony is “tantamount to the severest of sanctions,” and “[ajbsent evidence of a willful failure to comply or extensive prejudice to the opposition ... the granting of such an order constitutes an abuse of discretion.” Id. (citing Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)); see also Cossio v. Arrondo, 53 So.3d 1141, 1145-46 (Fla. 3d DCA 2011) (finding order precluding defendant from presenting witnesses at trial other than herself and from introducing documents to be “one of the harshest that could have been imposed, effectively preventing [the defendant] from presenting her case”).

The trial court’s original sanctions order did not find that Scott’s failure to meet discovery deadlines was willful or contumacious. Although the court made a finding of willfulness in its final judgment, this finding was not supported by any evidence in the record, and indeed is contrary to Scott’s assertions of neglect by his former counsel. There is likewise no evidence to support a finding that Scott’s failure to present himself for deposition was willful. The only prejudice asserted by Reflections at trial was that Reflections was prepared to go to trial as scheduled and did not wish to wait.

This case is factually similar to Kamhi, where we reversed a similar sanctions order as an abuse of discretion. 793 So.2d at 1037. Given the lack of evidence of willfulness, and Scott’s assertions that the sanctioned behavior was the fault of his prior counsel, the court erred by entering such a harsh sanctions order and barring Scott from presenting any evidence or testimony without providing Scott with the opportunity to refute the allegations of willfulness.

Reversed and remanded.

WARNER, CIKLIN and GERBER, JJ., concur.


author: GROSS, J.

text:
    Allerd Charles SMITH, Appellant, v. EFFECTIVE TELESERVICES, INC., a Florida corporation, n/k/a Etech, Inc., Dilip Barot, individually, Etech Texas, LLC, a Florida Limited Liability Company, Etech Texas, LLC, a Delaware Limited Liability Company, and Matthew F. Rocco, individually, Appellees.
    Nos. 4D12-3952, 4D12-3957.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Erik Figlio, John Beranek, Robert N. Clarke, Jr., and Richard Doran of Ausley & McMuller, Tallahassee, and Peter M. Feaman, of Peter M. Feaman, P.A., Boyn-ton Beach, for appellant.
    Alan B. Rose and Roy E. Fitzgerald of Page Mracheck, Fitzgerald, Rose, Konok-pa & Dow, P.A., West Palm Beach, for appellee, Etech Texas, LLC.
    W. Chester Brewer, Jr. of W. Chester Brewer, Jr., P.A., West Palm Beach, for appellee, Matthew F. Rocco.
   GROSS, J.

The primary question presented in this case is as follows: After a judgment debt- or files a Chapter 727 assignment for the benefit of creditors, may a judgment creditor separately pursue a Chapter 726 claim that the judgment debtor fraudulently transferred assets to a third party before making the Chapter 727 assignment? In these circumstances, we hold that if a Chapter 727 assignee has abandoned or sold and assigned a judgment creditor’s fraudulent transfer claim, the judgment creditor may pursue the Chapter 726 claim. The assignee’s abandonment or sale and assignment of a claim is a condition precedent to a judgment creditor’s ability to bring suit outside of a Chapter 727 assignment. Because the impleader complaint here at issue pleaded compliance with all conditions precedent to suit, we reverse the final judgment dismissing the judgment creditor’s impleader complaint.

Allerd Smith filed an action against Effective Teleservices and its chairman Dilip Barot. Smith recovered judgments against Effective for $1.3 million and Barot for $8.7 million. Later, the circuit court entered a separate final judgment in favor of Smith, and against Effective and Barot, for $1.5 million in attorney’s fees and $451,176.69 in costs.

Next, Smith filed an impleader complaint against appellees Etech Texas, LLC and Matthew Rocco, alleging that they participated in a scheme to defraud Smith out of the ability to collect on his two judgments. The operative complaint alleged that Effective’s assets were transferred to Etech Texas, a company created by Barot, and that Etech Texas continued to run Effective’s operations at the same location, with the same employees, using the same website, and with the same customers. Rocco worked as the chief executive officer of Effective and continued in the same capacity at Etech Texas. Alleging legal theories turning on the claim of a fraudulent transfer of assets under sections 726.105(l)(a), 726.105(l)(b)2, and 726.106(1), Florida Statutes (2010), the im-pleader complaint sought various remedies including the voiding of the transfer of assets to Etech Texas or the sale of Etech Texas’s assets.

According to the complaint, after the transfer of assets to Etech Texas, Effective executed a Chapter 727 assignment for the benefit of creditors, assigning Effective’s remaining assets to an assignee. Relying upon the assignment for the benefit of creditors, Etech Texas and Rocco filed motions to dismiss the impleader complaint, claiming that Smith lacked standing to pursue the causes of action; they relied on Moffatt & Nichol, Inc. v. B.E.A. International Corp., 48 So.3d 896, 899 (Fla. 3d DCA 2010), to argue that “only an assignee has standing to pursue fraudulent transfers, preferential transfers or other derivative claims.” The circuit court granted the motions and dismissed the impleader complaint with prejudice.

Resolution of this case requires examination of two chapters of the Florida Statutes — Chapter 727, involving assignments for the benefit of creditors, and Chapter 726, the Uniform Fraudulent Transfer Act.

“An assignment for the benefit of creditors is an alternative to bankruptcy and allows a debtor to voluntarily assign its assets to a third party [assignee] in order to liquidate the assets to fully or partially satisfy creditors’ claims against the debtor.” Hillsborough Cnty. v. Lanier, 898 So.2d 141, 143 (Fla. 2d DCA 2005); see also § 727.104(l)(b), Fla. Stat. (2010). The stated intent of Chapter 727 “is to provide a uniform procedure for the administration of insolvent estates, and to ensure full reporting to creditors and equal distribution of assets according to priorities as established under this chapter.” § 727.101, Fla. Stat. (2010).

The mechanics of Chapter 727 are that the assignor assigns to the assignee “all of its assets, except such assets as are exempt by law from levy and sale under an execution”; the assets so assigned become the “estate” of the assignor. § 727.104(b), Fla. Stat. (2010); § 727.108(9), Fla. Stat. (2010) (defining an “estate” as including “all of the assets of the assignor”). A mandatory duty of the assignor is to “deliver to the assignee all of the assets of the estate in the assignor’s possession, custody, or control.” § 727.107(2), Fla. Stat. (2010). Among the duties of the assignee are to “[c]ollect and reduce to money the assets of the estate.” § 727.108(1), Fla. Stat. (2010). The assignee is authorized to prosecute the “estate’s claims and causes of action,” including actions to “recover money or other assets of the estate” and to “avoid any conveyance or transfer void or voidable by law under s.727.109(8)(c).” §§ 727.108(l)(a), 727.110(l)(a), (c), Fla. Stat. (2010).

Significant to this appeal is Chapter 727’s definition of “asset”:

“Asset” means a legal or equitable interest of the assignor in property, which includes anything that may be the subject of ownership, whether real or personal, tangible or intangible, including claims and causes of action, whether arising by contract or in tort, wherever located, and by whomever held at the date of the assignment, except property exempt by law from forced sale.

§ 727.103(1), Fla. Stat. (2010) (emphasis added).

The central question here is whether the property Effective transferred to Etech Texas prior to the assignment fits within the above definition of an estate’s “asset.” To the extent that these transfers are voidable under Chapter 726, the Uniform Fraudulent Transfer Act, we hold that the assignor’s equitable interest in the property so transferred is an asset of the estate under section 727.103(1).

The concern of both Chapter 726 and Chapter 727 is to protect the rights of creditors. Fraudulent transfer laws such as Chapter 726 “generally attemptf] to protect creditors from transactions which are designed to, or have the effect of, unfairly draining the pool of assets available to satisfy creditor claims or which dilute legitimate creditor claims at the expense of false or lesser claims.” 37 Am. Jur.2d Fraudulent Conveyances and Transfers § 1 (updated Nov. 2013). Chapter 726 “prevents debtors from placing property beyond reach of their creditors when those assets should legitimately be made available to satisfy creditor demands.” Id.

A fraudulent transfer of property is voidable at the instance of a creditor. See § 726.109(1), Fla. Stat. (2010) (using the word “voidable” to describe the application of § 726.105(l)(a)). Where the fraudulent transfer act applies, a “transferor retains equitable ownership of assets that are fraudulently transferred to a third party, and those assets remain subject to attachment by the transferor’s creditors.” 37 Am.Jur.2d Fraudulent Conveyances and Transfers § 77 (updated Nov. 2013). Such an “equitable ownership” is contemplated within the section 727.103(1) definition of “asset”; it is an “equitable interest of the assignor in property ... wherever located, and by whomever held at the date of the assignment.” Because the impleader complaint alleged a fraudulent transfer of assets, Effective retained equitable ownership of the property transferred to Etech Texas, so that the equitable interest was an asset of the estate under sections 727.104(l)(b), 727.103(9), and 727.103(1).

Chapter 726 thus works hand in hand with Chapter 727, which authorizes an as-signee to bring an action to “avoid any conveyance or transfer void or voidable by law.” §§ 727.110(l)(c), 727.109(8)(c), Fla. Stat. (2010). The assignee is authorized to bring a Chapter 726 action because the assignee is a Chapter 726 “creditor.”

Sections 726.105 and 726.106, Florida Statutes (2010), define the circumstances where a transfer by a debtor is fraudulent as to a creditor. Under Chapter 726, it is the “creditor” who may “obtain” the remedies provided by the statute against a transferee. § 726.108(1), Fla. Stat. (2010). Chapter 726 broadly defines a “creditor” as “a person who has a claim.” § 726.102(4), Fla. Stat. (2010). Authorized by section 727.110(l)(c) to avoid a voidable transfer, the assignee is a “creditor” who may bring a Chapter 726 claim.

A separate section of Chapter 727 operates to bar Smith’s fraudulent transfer claim outside of the Chapter 727 proceeding. Section 727.105 provides, in pertinent part,

Except in the case of a consensual lien-holder enforcing its rights in personal property or real property collateral, there shall be no levy, execution, attachment, or the like in respect of any judgment against assets of the estate in the possession, custody, or control of the assignee.

Assuming the occurrence of a fraudulent transfer, Smith’s Chapter 726 proceedings against the property in the possession of Etech Texas would amount to an impairment of the equitable interest in that property “in the possession, custody, or control of the assignee.”

In sum, in the context of a Chapter 727 assignment for the benefit of creditors, only the assignee may bring a Chapter 726 fraudulent transfer claim. This conclusion is consistent with the underlying rationale of both statutes, which seek to protect the rights of creditors. To allow creditors to bring their own fraudulent transfer claims, without the consent of the assignee, would undermine Chapter 727 by depleting assets of the estate and disregarding the priorities established under that statute.

This is not to say that a judgment creditor may never bring its own fraudulent transfer claim after the filing of a Chapter 727 assignment. The duties of an assignee include the decision whether to pursue or abandon a fraudulent transfer claim or “sell and assign, in whole or in part, such claims or causes of action to another person or entity on the terms that the assign-ee determines are in the best interest of the estate.” § 727.108(l)(a), Fla. Stat. (2010). If the assignee has determined that it is in the best interest of the estate to abandon or to sell and assign a fraudulent transfer claim, a judgment creditor may then prosecute the claim outside of the Chapter 727 assignment. An assign-ee’s decision to abandon or to sell and assign a claim is a condition precedent to a judgment creditor’s ability to bring a separate lawsuit.

In this case, Smith’s impleader complaint generally pleaded compliance with all conditions precedent. See Fla. R. Civ. P. 1.120(c). Thus, the pleading suggests the assignee’s acquiescence in Smith’s impleader lawsuit. If this is not the case, then that factual issue can be reached on a motion for summary judgment. At the motion to dismiss stage of the proceedings, Smith adequately pleaded the ability to pursue his fraudulent transfer claim outside of the Chapter 727 proceeding and the circuit court erred in granting the motion to dismiss.

Smith argues that his Chapter 726 fraudulent transfer claims were never an asset of Effective or Etech Texas so they were not an asset of the estate in the control of the assignee. This argument misses the point. The object of Smith’s claims is the property transferred. For the purpose of Chapter 727, the equitable interest Effective retained in the property fraudulently transferred was an asset of the assignor that became part of the estate that the assignee was obligated to marshal on behalf of the creditors. To set aside the fraudulent transfer, the assignee would not pursue Smith’s Chapter 726 claims. Rather, section 727.110(l)(c) separately authorizes the assignee to bring a section 726 action to avoid any conveyance or transfer.

We disagree with the third district in Moffatt to the extent that Moffatt appears to hold that a judgment creditor’s Chapter 726 fraudulent transfer claim is an “interest of the assignor in property” under section 727.103(1). The cause of action is the judgment creditor’s, not the assignor’s. For the reasons stated above, we agree with Moffatt’s conclusion that “[ujnder the statutory scheme as it now exists, only an assignee has standing to pursue fraudulent transfers, preferential transfers or other derivative claims,” Moffatt, 48 So.3d at 899, with the proviso that an assignee may abandon or sell and assign the claims so that they may be pursued outside of a Chapter 727 proceeding.

Finally, we reject Smith’s argument that Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987 (Fla. 4th DCA 1998), is controlling. That case involves a bankruptcy trustee’s ability to pursue an alter ego claim in the attempt to recover money owed by a bankrupt corporation from the corporation’s president. The case does not involve the interplay between Chapters 726 and 727.

Reversed and remanded for further proceedings consistent with this opinion.

WARNER and KLINGENSMITH, JJ„ concur.

      . Section 726.105 provides, in pertinent part:
      (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
      (a) With actual intent to hinder, delay, or defraud any creditor of the debtor; or
      (b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:

      2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.
      Section 726.106 states:
      (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.


author: CIKLIN, J.

text:
    William O’MALLEY, Appellant, v. RANGER CONSTRUCTION INDUSTRIES, INC., Appellee.
    No. 4D12-4158.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Rehearing Denied March 10, 2014.

      Bryan S. Gowdy and Jennifer Shoaf Richardson of Creed & Gowdy, P.A., and Steven R. Browning, Jacksonville, for appellant.
    Eric A. Peterson and Barbara J. Tag-gart of Peterson Bernard, West Palm Beach, for appellee.
   CIKLIN, J.

The appellant, William O’Malley (“O’Malley”), brought a complaint against the Appellee, Ranger Construction Industries, Inc. (“Ranger”), for negligence and failure to warn after O’Malley was involved in a single-vehicle accident on a portion of Interstate 95 that Ranger was contracted to resurface. The trial court granted Ranger’s motion for summary judgment, agreeing with Ranger that O’Malley’s theory of liability required the impermissible stacking of inferences. We find O’Malley’s case does not involve the stacking of inferences and we reverse the summary final judgment.

The trial court had the following evidence before it when ruling on the motion for summary judgment. The accident occurred at dusk on a three-lane portion of Interstate 95. At the time of the accident, it was raining and had been raining most of the day. O’Malley could not remember any details of the accident. The only witness to the accident, another driver, testified in a deposition that he was driving in the far right lane and saw O’Malley traveling in the far left passing lane at a rate of speed the witness believed to be unsafe for the inclement weather conditions. Seconds later, the witness saw O’Malley’s vehicle flying sideways through the air in front of the witness’s vehicle. The witness testified there was a thin sheet of water on the road, but he did not see any standing water. He clarified on cross-examination that he did not remember whether there were any puddles on the road. O’Malley’s vehicle came to rest in the grass next to the far right lane.

Within minutes of the accident, a state trooper arrived at the scene of the accident. O’Malley was taken to the hospital, and the trooper was not able to speak to him. In a deposition, the trooper testified that there was standing water in the middle of the far left lane. He believed O’Malley was driving in excess of the speed limit. The trooper prepared a traffic crash report and accompanying diagram which both suggested that O’Malley lost control of the vehicle upon contact with the standing water.

Up until the point of the accident, Ranger had not performed any work on the middle and far left lanes but had, in fact, resurfaced the far right lane. Ranger’s expert opined that Ranger did not do anything that changed the flow of water from the outside (far right) shoulder to the inside (far left) shoulder. The expert could not say with certainty what caused O’Mal-ley to lose control of his vehicle.

According to O’Malley’s expert, based on a review of the contract specifications and daily work reports, Ranger failed to immediately remove the standing water as required by the contract, failed to provide adequate drainage, and was responsible for creating a hazardous condition.

The court found that a jury could not reach a verdict for O’Malley without im-permissibly stacking three inferences, 1) that there was a puddle or area of standing water in the far left lane at the time of the accident, 2) that O’Malley’s vehicle came into contact with it, and 3) that this contact caused the accident. The court found no direct evidence supported any of the inferences, and that each inference did not exclude other reasonable inferences. The court also found that Ranger’s theory of causation — that O’Malley’s speed and use of cruise control in the rain caused the accident — was as reasonable as O’Malley’s theory of causation.

“The applicable standard of review on orders granting summary judgment is de novo. Summary judgment is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Additionally, all inferences must be made in favor of the non-moving party.” Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004) (citations omitted). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (citation omitted). Further, “ ‘summary judgments should be cautiously granted in negligence eases,’ especially where ... comparative fault questions exist .... ” Gibbs v. Hernandez, 810 So.2d 1034, 1038 (Fla. 4th DCA 2002) (citations omitted). However, summary judgment may be granted based on impermissible inference stacking. Cohen, 878 So.2d at 405.

The rule relied on by Ranger and the trial court is stated in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960):

[I]n a civil case, a fact may be established by circumstantial evidence as effectively and as conclusively as it may be proved by direct positive evidence. The limitation on the rule simply is that if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.

Id. at 733. There is an important exception to this rule. When a predicate inference is the only reasonable inference that can be made from the evidence, it is no longer an inference but is deemed an established fact. Voelker v. Combined Ins. Co. of Am., 73 So.2d 403, 407 (Fla.1954). “Another way of expressing the Voelker exception has been to say that an inference may be admissible into evidence, even though it is based upon another inference, if the other inference has been shown to exist beyond a reasonable doubt.” Benson v. State, 526 So.2d 948, 953 (Fla. 2d DCA 1988) (citation omitted).

There is no stacking of inferences here requiring application of these rules. Ranger has taken what is essentially one inference — that the standing water caused the accident — and attempted to stretch it out into multiple inferences. Where there is only one inference relating to causation, the non-movant to the motion for summary judgment does not have to establish that the sole inference is the only reasonable inference. Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502, 505-06 (Fla. 5th DCA 2005). Further, summary judgment should not be granted based on a non-movant’s failure to meet its trial burden of proof on the issue of causation. Le v. Lighthouse Assocs., Inc., 57 So.3d 283, 286-87 (Fla. 4th DCA 2011) (citation omitted) (holding that where a summary judgment movant did not establish an absence of a causal relationship between the negligent acts and the damages, the trial court erroneously shifted the burden of proof to the non-movant when it found the plaintiff did not put forward sufficient evidence of causation). Because the trial court erred in basing its entry of summary judgment on inapplicable inference stacking rules, we reverse.

Reversed and remanded for further proceedings.

STEVENSON and LEVINE, JJ., concur.


text:
    Richard TANNENBAUM, Appellant, v. Siobhan H. SHEA, Appellee.
    No. 4D13-1368.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Richard Tannenbaum, Valley Cottage, New York, pro se.
    Siobhan H. Shea, Palm Beach, pro se.
   GROSS, J.

The former husband challenges an order issued under Florida Rule of Civil Procedure 1.540(b) vacating a portion of an agreed order that awarded a final money judgment for back child support. We reverse because there was no legal basis under the rule to grant relief.

The parties, both attorneys, stipulated to a final judgment of dissolution of marriage in 1999. Under the applicable child support guidelines, the former husband’s child support obligation calculated at $828.16 per month. Nonetheless, the agreed judgment provided that he would pay $1,300 per month in child support commencing December 1, 1999 and $1,500 per month commencing December 1, 2000, in addition to other education, medical, and wedding expenses.

Significantly, the agreed judgment provided that “[o]nly the amount due under the guidelines ($828.16) shall be enforceable by the [court’s] contempt powers” and that the other expenses were “not enforceable by the [court’s] contempt powers.”

Over the next nine years, the former husband neglected to pay much of his child support obligations or the education and medical expenses. This led to multiple contempt proceedings, motions to enforce the final judgment, and a motion to withdraw filed by the former wife’s attorney.

In 2008, the former husband notified the circuit court that the parties had reached a settlement agreement. On November 21, 2008, the circuit court entered an “Agreed Order Containing Money Judgment” that settled “all pending motions of the parties.” Using standard language for a final money judgment, the Agreed Order awarded the former wife a $70,000 money judgment against the former husband, with interest, and ordered that “execution issue forthwith.” Important for this appeal, paragraph 7 of the Agreed Order provided that the “Court retains jurisdiction of the action, but not of the money judgment contained herein.”

Over three years later, on April 4, 2012, the former wife moved for the enforcement of the $70,000 money judgment. The former husband responded that he was current on the $828.16 child support payments punishable by contempt; accordingly, he moved to dismiss the proceedings directed at the $70,000 judgment because the circuit court had divested itself of jurisdiction over the money judgment in paragraph 7 of the Agreed Order.

Even though she did not file a motion for rehearing directed at the Agreed Order, or take an appeal, the wife responded that she never agreed “to relinquish jurisdiction of this action.” She also moved the court to set aside that part of paragraph 7 divesting the court of jurisdiction as “against law, equity, public policy and for extrinsic fraud” so that the former wife would not “be denied [the] opportunity to obtain child support past due.”

Following a hearing, on March 25, 2013, the circuit judge entered an order denying former husband’s motion to dismiss for lack of jurisdiction. As to former wife’s argument that she never agreed to the provision at issue, the trial court determined that the language in the Agreed Order was “clear and unambiguous,” and that her claim was otherwise untimely raised. Nevertheless, relying upon the “well established law that parents may not contract away the rights of their child for support,” the court, pursuant to Rule 1.540(b)(4), struck the provision relinquishing jurisdiction over the money judgment, reasoning as follows:

[T]his Court finds that the language contained in the Agreed Order Containing Money Judgment ... relinquishing this Court of its jurisdiction over the Money Judgment for child support and related child expenses was not in the best interests of the child as it deprived the parents and/or child of the ability to enforce the Money Judgment in the state in which the child resides. Therefore, this language is void as against public policy and that portion of the Money Judgment is stricken and set aside.

The circuit court erred on both procedural and substantive grounds. First, the provision in the Agreed Order did not violate public policy because it did not preclude the former wife from seeking enforcement of the money judgment by instituting an action on a judgment in the civil division of a Florida circuit court or commencing collection proceedings in New York. Second, even if the provision were “void as against public policy,” it rendered the Agreed Order merely “voidable,” so that relief was not authorized under Florida Rule of Civil Procedure 1.540(b)(4).

Paragraph 7 of the Agreed Order divested the court of jurisdiction over the $70,000 money judgment. We read that to mean that the former wife was precluded from pursuing collection remedies within the context of the ongoing case in the family division of the circuit court. Nothing in the Agreed Order prevented the former wife from filing an action on the $70,000 judgment in the civil division of a Florida circuit court and pursuing her collection remedies in the newly filed action.

“Every judgment gives rise to a common law cause of action to enforce it, called an action upon a judgment.” Burshan v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 805 So.2d 835, 840-41 (Fla. 4th DCA 2001). The “main purpose of an action on a judgment, a separate cause of action from the original judgment, [i]s to obtain a new and independent judgment” which will ‘facilitate the ultimate goal of securing satisfaction of the original cause of action.’ ” Corzo Trucking Corp. v. West, 61 So.3d 1285, 1288 (Fla. 4th DCA 2011) (quoting Burshan, 805 So.2d at 841). As we wrote in Corzo,

[i]n defending an action on a judgment, a “defendant cannot avail himself of defenses which he might have interposed in the original action.” Restatement (First) of Judgments § 47 cmt. e. However, a defendant may “interpose defenses which have arisen since the rendition of the judgment, such as payment, release, accord and satisfaction, or the [s]tatute of [l]imitations.” Id.

61 So.3d at 1288. In addition to filing an action on a judgment in Florida, the former wife also might have used the $70,000 judgment to collect from the former husband in New York.

For these reasons, contrary to the circuit judge’s conclusion, the Agreed Order did not “contract away” the right of the child for support or deprive the child of the ability to enforce the money judgment in Florida. The order was therefore not void as against public policy.

The second reason for reversal derives from the operation of Rule 1.540(b)(4), which allows for relief from a “void” judgment but not a “voidable” one. If paragraph 7 was void as against public policy, then the Agreed Order was merely “voidable.”

“ ‘The general purpose of [rule 1.540(b) ] is to enable the court to grant relief against an unjust decree ....’” Smith v. Frank Griffin Volkswagen Inc., 645 So.2d 585, 588 (Fla. 1st DCA 1994) (quoting Cutler Ridge Corp. v. Green Springs, Inc., 249 So.2d 91, 93 (Fla. 3d DCA 1971)). “As an exception to the rule of finality,” Rule. 1.540’s application is “narrow,” Molinos Del S.A. v. E.I. DuPont de Nemours & Co., 947 So.2d 521, 524 (Fla. 4th DCA 2006), and is constrained by the time restrictions contained in the rule. See Wright v. Scott, 658 So.2d 1215, 1215 (Fla. 1st DCA 1995). Such limitations conform the rule to the Florida Supreme Court’s mandate that Rule 1.540 never “‘serve as a substitute for the new trial mechanism prescribed by Rule 1.530 nor as a substitute for appellate review of judicial error.’ ” Curbelo v. Ullman, 571 So.2d 443, 444 (Fla.1990) (quoting Fiber Crete Homes, Inc. v. Div. of Admin., 315 So.2d 492, 493 (Fla. 4th DCA 1975)).

In applying rule 1.540(b)(4), “a distinction exists between a judgment that is void and one that is voidable.” Krueger v. Ponton, 6 So.3d 1258, 1261 (Fla. 5th DCA 2009). “A void judgment is so defective that it is deemed never to have had legal force and effect.” Sterling Factors Corp. v. U.S. Bank Nat'l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007). As legally ineffective and a nullity, “[a] void judgment may be attacked” pursuant to Rule 1.540(b)(4) “at any time because the judgment creates no binding obligation on the parties.” Fisher v. State, 840 So.2d 325, 331 (Fla. 5th DCA 2003) (emphasis removed).

“In contrast, a voidable judgment is a judgment that has been entered based upon some error in procedure that allows a party to have the judgment vacated, but the judgment has legal force and effect unless and until it is vacated.” Zitani v. Reed, 992 So.2d 403, 409 (Fla. 2d DCA 2008) (citation omitted). “A voidable judgment can be challenged by motion for rehearing or appeal and may be subject to collateral attack under specific circumstances, but it cannot be challenged at any time as void under rule 1.540(b)(4).” Sterling Factors Corp., 968 So.2d at 665; see also Decker v. Kaplus, 763 So.2d 1229, 1230 (Fla. 5th DCA 2000).

“Generally, a void judgment is one entered without subject matter jurisdiction or personal jurisdiction....” Zitani, 992 So.2d at 409 (citation omitted); see also Miller v. Preefer, 1 So.3d 1278, 1282 (Fla. 4th DCA 2009) (“A void judgment is one entered in the absence of the court’s jurisdiction over the subject matter or the person.”). Also, “[a] judgment is void if, in the proceedings leading up to the judgment, there is ‘[a] violation of the due process guarantee of notice and an opportunity to be heard.’ ” Shiver v. Wharton, 9 So.3d 687, 690 (Fla. 4th DCA 2009) (quoting Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006)). Where, however, the “court is legally organized and has jurisdiction of the subject matter and the adverse parties are given an opportunity to be heard, then errors, irregularities, or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void.” Krueger, 6 So.3d at 1261 (citing Phenion Dev. Group, Inc. v. Love, 940 So.2d 1179 (Fla. 5th DCA 2006)).

Analogous to the case at hand, in Department of Health & Rehabilitative Services v. Morley, 570 So.2d 402, 403 (Fla. 5th DCA 1990), the wife filed a Uniform Reciprocal Enforcement of Support Act (“URESA”) complaint in 1987 against her separated husband seeking monetary support for herself and their two minor children; from this complaint, the husband was ordered to pay $25 per week per child. Several months later, the wife and husband filed a petition for dissolution of marriage, which included a marital settlement agreement where the husband agreed to relinquish his parental rights over the children in exchange for the wife assuming all of the children’s support costs. Id. The trial court then entered a final judgment of dissolution, incorporating the settlement agreement as part of the judgment. Id.

Two years later, the wife, and the Department of Health and Rehabilitative Services, appealed a final judgment in a URE-SA action which held that the husband had no child support obligation due to the final judgment of dissolution. They argued that the provision abdicating the husband’s child support was “void insofar as it permanently relieve[d the husband] of any ongoing support obligation regardless of any demonstrated need of support.” Id. at 403-04. Recognizing that the provision was contrary to public policy, the fifth district nonetheless affirmed the final URESA judgment, finding the challenge untimely since the provision’s inclusion merely rendered the judgment voidable. Id. at 404. As the court explained:

[D]oes the incorporation of a void agreement into a final judgment likewise render the final judgment void? The answer is no. In the case sub judice, the final judgment of dissolution incorporating the settlement agreement was itself voidable, though not void, under the general rule that if a court has jurisdiction over the person and the subject matter, an error in the judgment does not make the judgment void, but rather reversible on appeal.
As noted, the final judgment of dissolution was not appealed. Because the identical issue (support) was litigated between the identical parties ... before two judges of the same court ... , and the final judgment of dissolution was issued later in time than the URESA order, the final judgment of dissolution, albeit voidable, remains nonetheless presumptively valid and binding on the litigants.

Id. (citations omitted). This Court has followed suit in similar circumstances. See Miller, 1 So.3d at 1282-83 (finding a final judgment, despite its incorporation of a settlement agreement containing an illegal covenant restraining trade, merely voidable since the trial court had jurisdiction over the subject matter of the litigation and personal jurisdiction over the parties at the time it was entered); see also Palmer v. Palmer, 109 So.3d 257, 258-59 (Fla. 1st DCA 2013) (finding a final judgment voidable, as against void, where it required the husband to pay a penalty to the wife for delays in refinancing the marital home).

Similarly, in this case, even if the Agreed Order’s divestiture of jurisdiction over the money judgment was void as against public policy, the order itself was merely voidable, since the trial court had personal and subject matter jurisdiction over the parties and there was no due process violation. Generally, if errors affect only the substance of a final judgment, they must be corrected within the ten-day time limit of rule 1.530 or by appellate review. Here, the trial court reversibly erred in vacating the offending provision pursuant to Rule 1.540(b)(4) because the Agreed Order was not “void” within the meaning of the rule. Furthermore, insofar as the former wife challenges the language of paragraph 7 as being against her wishes, or as the product of fraud, such claim is time-barred. See Fla. R. Civ. P. 1.540(b)(1) (permitting a court to set aside a final judgment for “mistake, inadvertence, surprise, or excusable neglect” within one year of the order’s rendition); Fla. R. Civ. P. 1.540(b)(3) (placing one year limitation on fraud claims).

Reversed and, remanded.

WARNER and LEVINE, JJ., concur.

      . See Fla. R. Civ. P. Form 1.988.

      . See Susan G. v. Martin L., 186 A.D.2d 29, 587 N.Y.S.2d 635, 637 (N.Y.1992); Evoy v. Amandio, 34 Misc.3d 410, 932 N.Y.S.2d 874 (N.Y.Sup.Ct.2011). The Agreed Order stated that former husband’s address was in New York. New York has statutory collection remedies similar to the Florida Enforcement of Foreign Judgments Act. See §§ 55.501-55.509, Fla. Stat. (2009).


text:
    Harry H. HAHAMOVITCH, Appellant, v. Dianne L. HAHAMOVITCH, Appellee.
    No. 4D10-1077.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellant.
    Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for appellee.
   PER CURIAM.

We reverse the order on appeal to the extent that it awarded the wife attorney’s fees for the travel time of her counsel. See Mandel v. Decorator’s Mart, Inc. of Deerfield Beach, 965 So.2d 311, 315 (Fla. 4th DCA 2007) (“[W]ithout proof that a competent local attorney could not be obtained, an award of attorney’s fees from an opponent should not include travel time over and above what a local attorney would charge.”); Belmont v. Belmont, 761 So.2d 406, 407 (Fla. 2d DCA 2000) (reversing fees in a dissolution case for the time the wife’s Polk County counsel spent traveling to and from Sarasota County); Chandler v. Chandler, 330 So.2d 190, 191 (Fla. 2d DCA 1976) (“[W]e are faced with the question of whether [t]ravel time is properly included in an award of attorneys’ fees. We think not.”).

We acknowledge that there may be special circumstances in which travel fees may be taxed in a dissolution case. See Wright v. Wright, 577 So.2d 1355, 1357-58 (Fla. 1st DCA 1991) (wife did not act unreasonably in selecting counsel 60 miles away from her residence, which was located in a small community where the husband was a prominent physician); Bohner v. Bohner, 24 So.3d 622, 623 (Fla. 4th DCA 2009) (trial court did not abuse its discretion in including the additional time expended traveling to hearings caused by the husband’s vexatious litigation). But in this case no such special circumstances were shown. There was no evidence that competent counsel could not be obtained in Palm Beach County, nor was there a finding that the travel time was required due to any excessive or vexatious litigation by the husband.

On remand, the trial court is directed to eliminate attorney travel time from the fee award. Although the parties dispute how much of the fee award was based on the inclusion of attorney travel time, we leave this determination to the trial court in the first instance.

We find no abuse of discretion, however, in the award of costs, even though some of the costs were not within the scope of the Statewide Uniform Guidelines for Taxation of Costs in Civil Action. See Payne v. Payne, 481 So.2d 551, 553 (Fla. 2d DCA 1986). The “suit money” authorized in dissolution proceedings under section 61.16, Florida Statutes, contemplates a broader range of expenses than the costs which are ordinarily taxable in other civil cases. Id.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR, CONNER and KLINGENSMITH, JJ., concur.


text:
    Roderick GRANDISON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2510.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Roderick A. Grandison appeals his conviction of attempted second degree murder, arguing that the trial court erred in instructing the jury that the lesser included offense of attempted manslaughter by act included an intent to kill element. On the authority of Williams v. State, 123 So.3d 23 (Fla.2013), we hold that it was fundamental error for the trial court to instruct the jury that the lesser included offense of attempted manslaughter by act included an intent to kill element where Grandison was convicted of an offense not more than one step removed from attempted manslaughter. Accordingly, we reverse his conviction and sentence and remand for a new trial.

Grandison was charged with the attempted first degree murder of his wife. At trial, the court gave the instruction that “[t]o prove the crime of attempted voluntary manslaughter, the State [ ] must prove the following element beyond a reasonable doubt: Roderick A. Grandison committed an act which was intended to cause the death of Sheila Grandison ....” (emphasis added). Grandison did not object to the instruction. He was subsequently convicted of attempted second degree murder, a lesser included offense.

In Williams, the Florida Supreme Court held that the jury instruction on attempted manslaughter by act, which requires the jury to find that the defendant committed an act intended to cause death, constitutes fundamental error where the defendant is convicted of an offense no more than one step removed from attempted manslaughter. Id. at 24.

As the state concedes, Williams controls in this case. Since Grandison was convicted of an offense not more than one step removed from attempted manslaughter, the jury instruction was fundamental error.

Reversed and Remanded.

DAMOORGIAN, C.J., GROSS and TAYLOR, JJ., concur.


text:
    Javon O’CONNOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1330.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Javon O’Connor, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Javon O’Connor appeals the circuit court’s order summarily denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand based on the State’s concession that the circuit court failed to attach records of O’Connor’s sentencing which could refute his claim of illegal sentencing upon violation of probation.

On remand, the circuit court should determine whether O’Connor’s status as a youthful offender, as imposed originally, was maintained in his sentencing for violation of probation. O’Connor has not demonstrated that his violation of probation was based on merely a technical violation, even though he made that argument. Upon revocation of probation, the circuit court could sentence this youthful offender up to the statutory maximum for his offenses, notwithstanding the subsequent nolle pros of the offense on which the violations were based. See State v. Jenkins, 762 So.2d 535 (Fla. 4th DCA 2000). However, it still was required in this case to maintain his youthful offender status upon sentencing for violation of probation. See St. Cyr v. State, 106 So.3d 487 (Fla. 4th DCA 2013). We cannot determine from the record on appeal whether this was accomplished.

Accordingly, we reverse the summary denial of the motion to correct illegal sentence and remand with directions that O’Connor be sentenced as a youthful offender or to attach those portions of the record refuting O’Connor’s claim.

Reversed and remanded with directions.

STEVENSON, MAY and LEVINE, JJ., concur.


author: MAY, J.

text:
    Susan B. GREN, as Personal Representative of the Estate of Robert L. Gren, III, Appellant, v. Eileen GREN, as Personal Representative of the Estate of Robert L. Gren, II and as the Successor Trustee of the Robert L. Gren, II Living Trust dated July 2010, Appellee.
    No. 4D13-1603.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Steven B. Dolchin of Steven B. Dolchin, P.A., Hollywood, for appellant.
    No brief filed on behalf of appellee.
   MAY, J.

The ex-wife of the Grantor of a trust appeals an order dismissing her Petition for Construction of Trust Instrument. She argues the trial court erred in ruling on the Successor Trustee’s motion to dismiss after having compelled arbitration, pursuant to a provision of the trust. We agree and reverse.

The Grantor set up a living trust, naming himself as Trustee and his current wife as Successor Trustee. When the Grantor died, his current wife was appointed personal representative of his estate, and became the Successor Trustee. The two named beneficiaries were the current wife and the Grantor’s son from his prior marriage.

The Grantor’s son passed away three months after the Grantor. The ex-wife was appointed personal representative of her son’s estate. A dispute arose between the Successor Trustee and the ex-wife over distribution provisions in the trust instrument.

The ex-wife filed a Petition for Construction of Trust Instrument. The petition alleged that it was unclear whether the son’s estate was entitled to the half-share of the residue when he survived the death of the Grantor, but died during the time the Successor Trustee deferred distribution of the residual trust estate.

In response, the Successor Trustee filed a Motion to Compel Arbitration, pursuant to a provision in the trust instrument. The trial court granted the motion to compel. Six months later, the Successor Trustee filed a Motion to Dismiss with Prejudice and Bar any Further Related Claims in Arbitration. She alleged the ex-wife had failed to take any action since the court compelled arbitration. The ex-wife had not filed a request for arbitration, provided any names of potential arbitrators, or attempted to schedule arbitration.

The Successor Trustee complained that the ex-wife was preventing her from winding down the Grantor’s affairs. As a result of the ex-wife’s inaction, the Successor Trustee claimed she was unable to file tax returns and disburse assets, and she had suffered hardship and mental anguish. She argued that dismissal was her only remedy.

The trial judge conducted a hearing. The ex-wife conceded that she had not filed for arbitration until just prior to the hearing. She explained that she had been involved with another probate matter, which had been only recently resolved. She argued that the trust did not require that the arbitration occur within a certain time and that the timeliness issue should be heard by an arbitrator, not the trial judge.

The Successor Trustee urged the trial court to grant the motion to dismiss because filing for arbitration eight months after the court compelled arbitration was unreasonable. Without articulating a basis for its decision, the trial court dismissed the ex-wife’s petition with prejudice. From this order, the ex-wife has appealed.

The ex-wife argues the trial court erred in dismissing her petition because a delay in giving notice of arbitration is a question of fact to be decided by an arbitrator, not the trial court. She also argues that the delay did not constitute a waiver to arbitration. Neither the trust’s arbitration provision nor the court’s order compelling arbitration specified a time period within which to arbitrate the dispute. Her letter to the American Arbitration Association demanding arbitration was made well within the five-year statute of limitations provided by section 95.11(2)(b), Florida Statutes (2011). Lastly, she argues the order compelling arbitration divested the trial court of jurisdiction.

We have de novo review. See Equity Premium Inc. v. Twin City Fire Ins. Co., 956 So.2d 1257, 1259 (Fla. 4th DCA 2007) (citing MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004)).

Courts favor arbitration as an alternative to litigation. See, e.g., Seifert v. U.S. Home Corp., 750 So.2d 638, 636 (Fla.1999); Pub. Health Trust of Dade Cnty. v. M.R. Harrison Constr. Corp., 415 So.2d 756, 758 (Fla. 3d DCA 1982). In deciding a motion to compel arbitration, a trial court is restricted to three issues: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert, 750 So.2d at 636; § 682.03, Fla. Stat. (2012).

Once those issues are determined, “ 'permitting the parties to litigate the dispute in the courts instead of proceeding by arbitration as agreed would constitute a departure from the essential requirements of law.’ ” N. Am. Van Lines v. Collyer, 616 So.2d 177, 178 (Fla. 5th DCA 1993) (citing Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980)). Timeliness of a demand for arbitration is a fact question reserved for an arbitrator, not the trial judge. Thenet v. Jenne, 968 So.2d 46, 46 (Fla. 4th DCA 2007). Delay does not waive arbitration. Alderman v. City of Jacksonville, Fire & Rescue Div., 902 So.2d 885, 887 (Fla. 1st DCA 2005).

Here, the parties did not dispute the validity of the trust or the existence of an arbitrable issue. The Successor Trustee did not argue that the ex-wife waived her right to arbitration by petitioning the court to construct the trust instrument. Procedurally, the trust only required that the arbitrator “be a practicing lawyer” with ten years of experience primarily devoted to wills and trusts. It did not require that the demand for arbitration be made within a specific or reasonable time period.

Once the trial court granted the Motion to Compel Arbitration, factual issues other than the three Seifert issues, including the timeliness in initiating the arbitration proceeding, belonged to the arbitrator. Collyer, 616 So.2d at 178-79. We therefore reverse and remand the case for reinstatement of the petition and arbitration of the dispute.

Reversed and Remanded for Reinstatement of the Petition.

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


author: GERBER, J.

text:
    JP MORGAN CHASE BANK, N.A., as Servicer of J.P. Morgan Mortgage Acquisition Trust 2007-CH1, Appellant, v. The ESTATE OF Janet NEU, Barrett S. Lazarus, as Successor Trustee of the Janet L. Neu Revocable Trust, and Marvine Calloway, Appellees.
    No. 4D13-2058.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Monterey Campbell and Kristie Hatch-er-Bolin of GrayRobinson, P.A., Lakeland, and Steven A. Lessne and Jeffrey T. Kuntz of GrayRobinson, P.A., Fort Laud-erdale, for appellant.
    Richard L. Williams, Key Biscayne, and John Kirkpatrick, Coral Gables, for appel-lees.
   GERBER, J.

The bank appeals from the Broward County circuit court’s non-final order granting the second successor trustee’s motion to disburse the proceeds from the sale of the settlor’s home. The bank argues that the Broward County court violated the principle of priority when it ordered the disbursement because the sale proceeds already were the subject of the bank’s earlier-filed declaratory judgment action filed in the Palm Beach County circuit court. We agree with the bank’s argument and reverse.

The bank filed a declaratory judgment action in the Palm Beach County circuit court. The bank’s amended complaint alleged as follows. The settlor owned a Palm Beach County home which was encumbered by the bank’s mortgage. The settlor transferred the home to herself as the trustee of her trust. After the settlor died, the successor trustee continued paying the mortgage for a time. Then, without the bank’s consent, the successor trustee sold the home. The successor trustee’s attorney, acting as the settlement agent, received the sale proceeds. The bank demanded that the successor trustee direct his attorney to disburse the sale proceeds to the bank, but the successor trustee refused to do so. The bank sought an order directing the successor trustee and the successor trustee’s attorney to disburse the sale proceeds to the bank.

After the bank filed its declaratory judgment action in Palm Beach County, a trust beneficiary filed an action in Broward County to discharge the successor trustee. The Broward County court granted the motion and appointed the second successor trustee. The second successor trustee then filed a motion in the Broward County court to compel the first successor trustee’s attorney to tender the sale proceeds to the second successor trustee.

Shortly thereafter, the first successor trustee’s attorney filed in the bank’s Palm Beach County action a motion for leave to deposit the sale proceeds with the Palm Beach County court. The motion alleged that the first successor trustee’s attorney was the subject of competing claims to the sale proceeds by the bank and the second successor trustee.

Before the Palm Beach County court could hear the first successor trustee’s motion to deposit the sale proceeds, the Bro-ward County court heard the second successor trustee’s motion to tender the sale proceeds. The bank appeared at the hearing for the limited purpose of contesting the Broward County court’s possible exercise of jurisdiction over the sale proceeds. The bank told the Broward County court that it objected to the sale proceeds “being essentially taken from the subject matter” of the Palm Beach County action. The first successor trustee’s attorney told the Broward County court of his pending motion to deposit the sale proceeds in the Palm Beach County court due to the conflicting claims. The first successor trustee’s attorney also told the Broward County court: “[I]t’s ultimately going to be decided in the Palm Beach County case who is entitled to that money and what will happen with it.”

The Broward County court entered an order granting the second successor trustee’s motion and directing the first successor trustee’s attorney to disburse the sale proceeds to the second successor trustee.

This appeal followed. The bank argues that the Broward County court violated the principle of priority when it ordered the disbursement because the sale proceeds already were the subject of the bank’s declaratory judgment action in the Palm Beach County court. We review the Broward County court’s decision to proceed with the hearing on the motion to tender the sale proceeds for an abuse of discretion. Cf. Parker v. Estate of Bealer, 890 So.2d 508, 512 (Fla. 4th DCA 2005) (“Absent extraordinary circumstances ... a trial court abuses its discretion when it fails to respect the principle of priority.”) (citation and quotations omitted).

We agree with the bank’s argument. The bank’s Palm Beach County action will decide whether the bank or the trust is entitled to the sale proceeds. Because the Palm Beach County court’s jurisdiction attached first to the disposition of the sale proceeds, the Broward County court violated the principle of priority by ordering the disbursement of the sale proceeds. See Parker, 890 So.2d at 512 (“[W]here two courts have concurrent jurisdiction of a cause of action, the first court to exercise jurisdiction has the exclusive right to hear all issues or questions arising in the case.”) (citation and quotations omitted). The Broward County court should have stayed action on the second successor trustee’s motion until the resolution of the Palm Beach County action.

Based on the foregoing, it is unnecessary to consider the bank’s other arguments on appeal. We reverse the Bro-ward County court’s order granting the second successor trustee’s motion to disburse the sale proceeds. We remand with instructions for the Broward County Court to order the second successor trustee to return the sale proceeds to the first successor trustee’s attorney to hold in escrow pending the Palm Beach County court’s determination of the first successor trustee’s attorney’s motion to deposit the sale proceeds with the Palm Beach County court.

Reversed and remanded for proceedings consistent with this opinion.

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


text:
    GEICO GENERAL INSURANCE COMPANY, Petitioner, v. Kelly PATON, Respondent.
    No. 4D13-2166.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Rafael De La Grana and James K. Clark of Clark, Robb, Mason, Coulombe & Buschman, Miami, for petitioner.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach and Richard M. Benrubi of Liggio & Benrubi, P.A., West Palm Beach, for respondent.
   PER CURIAM.

Geico General Insurance Company petitions for a writ of certiorari from two trial court orders that permit discovery of its attorney’s billing records. The records were sought by the respondent in support of her claim for attorney’s fees in the litigation below. We grant the petition because the respondent failed to make the showing required to obtain her opponent’s attorney’s fee records.

This case is controlled by Estilien v. Dyda, 93 So.3d 1186 (Fla. 4th DCA 2012). That case took the view that “the records of one’s opponent are, at best, only marginally relevant to the general issue of determining an appropriate amount of attorney’s fees to be awarded in a given case.” Id. at 1188 (quoting HCA Health Srvcs. of Fla., Inc. v. Hillman, 870 So.2d 104 (Fla. 2d DCA 2003)). Estilien held that:

[W]here the billing records of opposing counsel are sought solely for the purpose of supporting a claim for attorney’s fees, ‘[t]he party seeking production must establish that the requested material is actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney’s fee hearing, and that substantially equivalent material cannot be obtained from another source.’

93 So.3d at 1188-89 (quoting Hillman, 870 So.2d at 107). Respondent requested the discovery, in part, to support the award of a “multiplier.” She failed to make the showing required by Estilien.

Petition for writ of certiorari granted; orders under review quashed.

DAMOORGIAN, C.J., STEVENSON, and GROSS, JJ., concur.


text:
    Elroy A. PHILLIPS, Appellant, v. CITY OF WEST PALM BEACH, Appellee.
    No. 4D13-782.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Elroy A. Phillips, Miami, pro se.
    Christopher Van Hall, City Attorney, and Kimberly Rothenburg, Assistant City Attorney, West Palm Beach, for appellee.
   GERBER, J.

The plaintiff appeals from the circuit court’s final order granting the city’s motion to dismiss his fourth amended complaint with prejudice and denying his motion for leave to amend the fourth amended complaint. The plaintiff argues the court violated his due process rights by raising the statute of limitations as the basis for its order when the city never alleged a statute of limitations defense. The plaintiff also argues the court erred in denying his motion for leave to amend because the amendment could have cured the statute of limitations issue and thus would not have been futile. We agree with both arguments and reverse.

In September 2011, the plaintiff filed a complaint against the city’s current and former police chiefs, several city police officers, and a DEA agent. In July 2012, the plaintiff filed his fourth amended complaint, which added the city as a defendant. For purposes of our review, we must accept the fourth amended complaint’s allegations as true. See Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (“In reviewing an order granting a motion to dismiss ... [a] court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true.”) (internal quotations and citations omitted). The fourth amended complaint alleged the following:

15. On June 8, 2001, plaintiff was arrested by officers of the West Palm Beach Police Department. Upon his arrest, plaintiffs property was seized ... and ... subsequently turned over to [the DEA agent].
16. Beginning in 2005 plaintiff sued [the DEA agent] for the return of the property. In 2006 [the DEA agent] submitted a sworn affidavit to the U.S. District Court stating that he had given the disputed property to plaintiffs attorney. [The DEA agent] lied to the Court. [The DEA agent] never gave plaintiffs attorney the property.
17. . . .
18. In 2006 plaintiff initiated another suit against [the DEA agent] for damages relating to the property. During litigation in September 2009, [the DEA agent and the city police officers] submitted sworn declarations along with documents stating that the disputed property was either donated or destroyed in February or May 2002.
19. The sworn declarations and documentation are perjurious statements and fabricated documents because the disputed property was in plaintiffs December 2-20, 2002 federal trial as potential evidence. So, it is impossible that the property was donated or destroyed in February or May 2002.
20. The defendants have committed wrongful, unauthorized acts or omissions which have permanently deprived the plaintiff of his property.
21. Plaintiff had a right of possession of the property.
22. The unlawful conversion of the property has been fraudulently concealed and the actions of the defendants were in bad faith or with willful or malicious purpose or in a manner exhibiting willful disregard of human rights, safety or property.
23. To the extent that the property was wrongfully converted, a conversion in law has transpired.
24. To the extent that the disputed property was donated or destroyed, the defendants are guilty of negligence ....
25.The City of West Palm Beach and the Chief and Ex-Chief(s) of the West Palm Beach Police Department are liable for the actions, inactions, errors and omissions of [i]ts employees.

The plaintiffs Count I alleged: “The defendants have permanently deprived the plaintiff of his personal property committing the tort of Conversion.” The plaintiffs Count II alleged: “To the extent that the property was destroyed or donated, the defendants are guilty of ... Negligence .... ”

One of the officers filed a motion to dismiss the fourth amended complaint. The officer argued, among other things, that he was immune from suit and that the statute of limitations barred the plaintiffs claim.

The city then moved to dismiss the fourth amended complaint. The city argued that the plaintiff failed to state causes of action for conversion and negligence. The city did not argue that the statute of limitations barred the plaintiffs claims.

The circuit court granted the officer’s motion to dismiss. The court also entered an agreed order dismissing the remaining individual defendants, thus leaving the city as the only defendant.

The plaintiff then filed a motion for leave to amend the fourth amended complaint as to the city. In the motion, the plaintiff sought to drop his conversion claim and supplement his negligence claim.

The circuit court later entered an order granting the city’s motion to dismiss with prejudice and denying the plaintiffs motion for leave to amend. The circuit court’s order states: “Plaintiffs causes of action are barred by the statue (sic) of limitations.” The circuit court reasoned, in pertinent part, as follows:

[I]n reviewing Plaintiff’s own submissions, it is clear that that he first learned of the facts which would support his cause of action when the government responded to his July 1, 2005 Motion for Return of Property.... Additionally, in 2005 and 2006, Plaintiff filed complaints in federal court concerning the same property.... Plaintiff filed the present action on September 7, 2011, more than six (6) years after discovering facts giving rise to his cause of action and more than four (4) years after filing suit in federal court concerning the same property.

This reasoning is nearly identical to language contained in the court’s order granting the officer’s motion to dismiss on statute of limitations grounds.

The plaintiff filed a motion for reconsideration. In the motion, the plaintiff argued that the city had not alleged a statute of limitations defense. The plaintiff also argued that the statute of limitations did not bar his claim because he allegedly did not learn until September 2008 that the city’s police department allegedly disposed of his property. The court denied the motion.

This appeal followed. The plaintiff raises two arguments. First, the plaintiff argues the court violated his due process rights by raising the statute of limitations as the basis for its order when the city had not alleged a statute of limitations defense. Second, the plaintiff argues that his motion for leave to amend would not have been futile in light of his allegation that he did not learn until September 2008 that the city’s police department allegedly disposed of his property.

As to that portion of the order granting the city’s motion to dismiss with prejudice, our review is de novo. See Edwards, 51 So.3d at 1213 (“A trial court’s order granting a motion to dismiss is reviewed de novo.”); Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009) (“A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.”) (citation and quotations omitted). As to that portion of the order denying the plaintiffs motion for leave to amend, we review for an abuse of discretion. See Cousins Rest. Assocs. ex rel. Cousins Mgmt. Corp. v. TGI Friday's, Inc., 843 So.2d 980, 982 (Fla. 4th DCA 2003) (“Trial courts’ decisions on motions for leave to amend are reviewed under an abuse of discretion standard. Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.”) (internal citations and quotations omitted).

We agree with the plaintiffs arguments. First, as to the due process argument, the plaintiff is correct that the city never raised a statute of limitations defense, and thus the dismissal of his action on that ground violates his due process rights. See GMAC Mortg., LLC v. Choengkroy, 98 So.3d 781, 782 (Fla. 4th DCA 2012) (“[A] trial judge may not sua sponte dismiss an action based on affirmative defenses not raised by proper pleadings[,] as a dismissal under these circumstances denies the parties due process because the claim is being dismissed without notice and an opportunity for the parties and counsel to be heard.”) (citations and internal quotations omitted).

Second, as to the amendment argument, the plaintiff is correct that his motion for leave to amend would not have been futile in light of his allegation that he did not learn until September 2008 that the city’s police department allegedly disposed of his property. The statute of limitations on a negligence claim is four years. § 95.11(3)(a), Fla. Stat. (2011). A negligence claim does not accrue until the existence of a redressable harm or injury has been established and “the injured party knows or should know of either the injury or the negligent act.” McLeod v. Bankier, 63 So.3d 858, 860 (Fla. 4th DCA 2011) (citations and quotations omitted). Here, although the plaintiff sought return of his property as early as 2005, he alleges that, because of the DEA agent’s allegedly false affidavit and declaration, he did not learn until September 2008 that the city’s police department allegedly disposed of his property. He filed his claim against the city in July 2012, which was within the four-year limitations period. Thus, the plaintiffs motion for leave to amend would not have been futile.

Based on the foregoing, we reverse the circuit court’s order granting the city’s motion to dismiss with prejudice and denying the plaintiffs motion for leave to amend. Upon the filing of the plaintiffs fifth amended complaint, the city is not precluded from renewing its motion to dismiss on the ground that the plaintiff has failed to state a cause of action, as the circuit court did not address that argument in its order dismissing the plaintiffs fourth amended complaint.

Reversed and remanded for proceedings consistent with this opinion.

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


text:
    Robert CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-786.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    No brief filed for appellee.
   GERBER, J.

The patient appeals from the circuit court’s order granting the treatment center’s petition to impose involuntary psychotropic treatment upon the patient. The patient argues the court erred in entering the order without competent, substantial evidence: (1) that his multidisciplinary treatment team deemed his treatment necessary and essential; or (2) that he received, in writing, an individualized treatment plan which he had an opportunity to assist in preparing. See Morgan v. State, 94 So.3d 677, 679 (Fla. 4th DCA 2012) (“[O]n appellate review of an order requiring a forensic patient to accept involuntary psychotropic treatment, the record must contain competent, substantial evidence ... to substantiate compliance with section 916.107, [Florida Statutes].”) (citation and quotations omitted). We agree with the patient’s arguments and reverse.

On the first argument, section 916.107(3)(a), Florida Statutes (2013), provides, in pertinent part:

A forensic client shall be asked to give express and informed written consent for treatment. If a client refuses such treatment as is deemed necessary and essential by the client’s multidisciplinary treatment team for the appropriate care of the client, such treatment may be provided ....

§ 916.107(3)(a), Fla. Stat. (2013) (emphasis added). To establish compliance with section 916.107(3), “testimony from all treatment team members is not necessary.” Dinardo v. State, 742 So.2d 287, 289 (Fla. 1st DCA 1998). However, “[c]ase law requires ... at least some evidence that the multidisciplinary team has discussed and approved the necessity of treatment .... ” Louisma v. State, 78 So.3d 50, 52 (Fla. 4th DCA 2012).

Here, the treatment team physician testified that the “whole treatment team” met with the patient “to go over his initial ... treatment stabilization plan.” However, the physician did not testify that the treatment team approved the treatment plan or deemed it necessary and essential. Thus, no competent, substantial evidence exists to show compliance with section 916.107(3)(a). See Smith v. State, 117 So.3d 858, 859 (Fla. 4th DCA 2013) (“The psychiatrist never testified that the other members, of the multidisciplinary team approved of the necessity of the treatment plan”); Troutman v. State, 112 So.3d 638, 639 (Fla. 4th DCA 2013) ([“T]he psychiatrist did not testify that the other team members approved of the necessity of the recommended treatment.”); Martin v. State, 94 So.3d 700, 701 (Fla. 4th DCA 2012) (“The order ... suffers from a ... lack of evidentiary support showing that the proposed treatment was discussed with and approved by appellant’s multidisciplinary treatment team.”); Morgan, 94 So.3d at 680 (“The record on appeal does not contain any evidence that [the patient’s] multidisciplinary team discussed or approved the necessity for this treatment.”).

On the second argument, section 916.107(2)(d), Florida Statutes (2013), provides:

Not more than 30 days after admission, each client shall have and receive, in writing, an individualized treatment or training plan which the client has had an opportunity to assist in preparing.

§ 916.107(2)(d), Fla. Stat. (2013). Here, no evidence exists that the patient received, in writing, an individualized treatment plan. Moreover, although the treatment team physician testified that the treatment team met with the patient to discuss the treatment plan, the physician admitted that she did not fully discuss medications with him, as the discussion appeared to agitate him. Thus, no competent, substantial evidence exists to show compliance with section 916.107(2)(d).

Based on the foregoing, we reverse the circuit court’s order and remand with instructions to hold a hearing for the treatment center to present evidence of the treatment team’s compliance with sections 916.107(3)(a) and 916.107(2)(d).

Reversed and remanded with instructions.

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


text:
    James SEARS, Appellant, v. DEPARTMENT OF REVENUE on behalf of Ashley Sears, Appellee.
    No. 4D13-3977.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    James Sears, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Appellee confesses that the circuit court erred in its order denying appellant’s “Motion to Vacate An Order Adopting Hearing Officer’s Recommendations” on the basis that the motion to vacate was not timely filed. Appellee confesses that the motion to vacate was timely filed in accordance with the mailbox rule. See Haag v. State, 591 So.2d 614, 617-18 (Fla.1992). Based on the foregoing, we reverse the court’s order denying the motion to vacate. We remand for consideration of the motion to vacate on its merits.

Reversed and remanded with instructions.

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