text:
    Christina PARNELL, Appellant, v. Brett Allen PARNELL, Appellee.
    No. 5D12-785.
    District Court of Appeal of Florida, Fifth District.
    April 12, 2013.

      Robin I. Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for Appellant.
    James M. Campbell, Orlando, for Appel-lee.
   PER CURIAM.

The parties to this action were divorced in 2008. As part of the final judgment, the trial court included a contact and access schedule and specifically reserved jurisdiction to revise the former husband’s contact schedule upon the parties’ child starting school. Two years later, the former husband filed a supplemental petition to modify that schedule. The matter proceeded to trial, and at its conclusion, the judge made various findings of fact, issued an oral ruling on the petition, and noted that the parties had stipulated to most of the holiday schedule during the course of the trial. The judge further directed the parties to “figure out” .the remaining holiday-and summer-break schedule issues and work together to prepare a proposed order.

Six days later, the former wife filed a motion to disqualify the trial judge. Among other accusations, the motion alleged that the judge had made “inappropriate, disparaging statements about her attorneys and improperly used profane language during the case.” Based upon those allegations, the trial judge granted the motion, additionally recusing himself from all future cases involving the former wife’s counsel, Norman Levin, and the associates within the firm.

Two months later, the same trial judge entered a final judgment on the former husband’s petition for modification. On appeal, the former wife disputes the trial judge’s authority to enter the final judgment following his disqualification from the case. Prior to the supreme court’s decision in Fischer v. Knuck, 497 So.2d 240 (Fla.1986), upon the disqualification or re-cusal of a judge, any subsequent action on the case by that judge was void. See Airborne Cable Television, Inc. v. Storer Cable TV of Fla., Inc., 596 So.2d 117, 118 (Fla. 2d DCA 1992). In Fischer, the supreme court set forth an exception that allows a trial judge to retain the authority to perform the ministerial act of reducing a ruling to writing, provided that the judge “has heard the testimony and arguments and rendered an oral ruling in a proceeding _” 497 So.2d at 243. The court went on to state that any substantive change in the judge’s ruling would not be considered a ministerial act. Id.

In the instant case, while the trial court ruled on many of the issues raised and the parties stipulated as to others, there remained issues left for the parties to “figure out.” Nothing within the record on appeal reflects a meeting of the minds on those issues, and the parties contested whether the judgment entered complied with the oral pronouncements and whether it contained provisions not pronounced at the conclusion of the trial. The judgment provided details not articulated in the trial court’s oral pronouncement, and, in family law cases where the parents are unable to resolve issues without court intervention, the devil is often in the details. As such, the ministerial act exception to the disqualification rule does not apply. Accordingly, the trial judge’s modification order is reversed as void.

REVERSED and REMANDED.

PALMER, LAWSON and COHEN, JJ„ concur.

      . A different judge handled the earlier proceedings.

      . The judge inappropriately used profanity during the course of the trial. However, a review of the transcript calls into question other allegations within the motion to disqualify. The accusation of disparaging remarks about Mr. Levin, who was not the attorney in the firm handling this trial, took one comment of the trial judge and assigned motives not evident from the record. The comment concerned a finding of imputed income contained with a child support guideline worksheet but omitted from the original final judgment prepared by Mr. Levin.


source: Caselaw Access Project

author: TORPY, J.

license: Public Domain

text:
    BLUE EARTH SOLUTIONS, etc., et al., Appellants, v. FLORIDA CONSOLIDATED PROPERTIES, LLC, Appellee.
    No. 5D12-1436.
    District Court of Appeal of Florida, Fifth District.
    April 12, 2013.
    Michael J. Scaglione of The Scaglione Law Firm, P.A., Coral Gables, for Appellants.
    No Appearance for Appellee.
   TORPY, J.

Appellants challenge a temporary injunction entered following an evidentiary hearing. We reverse.

This is a classic example of what often occurs when parties attempt to consummate a complex business transaction without the benefit of legal representation. What makes this case especially remarkable is that this business transaction involved almost half a million dollars. Within twenty days after the so-called closing of the sale of business assets, the entire transaction unraveled, culminating in legal proceedings. Appellee sued Appellants for breach of contract, among other things, and sought an injunction. Both parties were represented by lawyers in the lower court proceedings. In an effort like trying to put toothpaste back in the tube, Appel-lee’s counsel scheduled an “emergency” hearing before the trial court. Within the one-hour time constraint reserved by Ap-pellee’s counsel, the trial court attempted to sort through this quagmire and afford some temporary relief. Unfortunately, despite the trial court’s best efforts, the resulting order is legally untenable.

The parties executed what was labeled a “Standard Asset Purchase Contract and Receipt,” wherein Appellants agreed to sell certain assets to Appellee. The document is not a model of clarity. To further complicate matters, although the contract provided that all documents necessary to close would be signed at closing, the parties “closed” the transaction before executing these ancillary documents — the most significant of which was a lease of the business premises where the assets were located. The written agreement contemplated that the “seller” would “assign,” and Appellee would assume, the lease on the premises at closing. Both parties acknowledged, however, that there was no lease to assign because one of the Appellants (or some entity controlled by one of the Appellants) owned the building. Instead, the parties orally agreed that a new lease would be prepared and executed after closing. The parties also orally agreed that Appellants and Appellee would both occupy the business premises for some undetermined time after closing. Conflicting testimony was presented regarding the rental payment amount. There was no evidence of .any discussion regarding the duration of the lease and its non-monetary terms, such as who would provide insurance, pay the taxes, or maintain the premises. A written lease was clearly contemplated but not executed before Appellants declared Appellee in default, locked Appel-lee out of the premises, repossessed the assets, and sold some of the assets to cover purported damages. From closing until the lockout, Appellee only occupied the premises for twenty days.

The trial court issued a temporary injunction. It concluded that Appellants’ actions in locking Appellee out of the premises constituted a wrongful self-help “eviction.” Accordingly, it ordered Appellants to restore Appellee to possession of the “portion of the premises” that Appellants “conveyed” to Appellee pursuant to the asset purchase agreement. For obvious reasons, the order did not specify what “portion” of the premises was involved, nor did it make any provisions for the payment of rent, utilities, taxes, maintenance, or other terms of the ostensible lease during the injunction period. Although the court conditioned the injunction on the posting of an injunction bond, the condition of the bond was limited to damages for a wrongful injunction, not the payment of rent and other expenses associated with the lease of the premises.

A mandatory injunction should be issued in only the rarest of circumstances where the rights are clear and certain. Spradley v. Old Harmony Baptist Church, 721 So.2d 735, 737 (Fla. 1st DCA 1998). Here, on the evidence presented at the abbreviated hearing, it is doubtful that the parties had a meeting of the minds on the essential terms of the so-called lease. Even if they had, the agreement clearly fell far short of the requisite certainty for purposes of obtaining the extraordinary relief of a mandatory injunction. Similarly, the injunction order itself lacks the requisite definiteness. Because the violation of an injunction order is punishable by contempt, the injunction order itself must “describe in reasonable detail the act or acts restrained without reference to a pleading or another document....” Fla. R. Civ. P. 1.610(c); Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002); see also Somerstein v. City of Miami Beach, 819 So.2d 158, 162 (Fla. 3d DCA 1975) (“[T]he acts or things enjoined should be specified in the decree with such reasonable definiteness and certainty ... that a defendant bound by the decree readily may know what he must refrain from doing without the matter being left to speculation and conjecture.”). The order here does not adequately apprise Appellants of what is required.

The injunction order also must be reversed for other reasons. The trial court’s finding of a “wrongful” eviction, even if correct, is insufficient to support the remaining aspects of the injunction. The trial court failed to' address Appellants’ claim that they were entitled to repossess the business assets based upon Appellee’s default. A temporary injunction may be entered only where the party seeking the injunction establishes: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) considerations of public interest support entry of the injunction. Yardley, 826 So.2d at 470. Here, the order fails to address whether Appel-lee has an adequate remedy at law for the alleged wrongs. Absent unusual circumstances, claims of the nature described in the complaint may be redressed in an action for money damages. See, e.g., Speer v. Evangelisto, 662 So.2d 1340 (Fla. 2d DCA 1995) (holding that where alleged conversion of business assets already complete, injunction to undo acts not available). The injunction order also improperly references other documents to describe the acts restrained, in violation of rule 1.610(c). Finally, as for the requirement that Appellants deposit money into the registry of the court, this order is not authorized under the facts of this case. The money is not the subject of the suit and is recoverable, if at all, only as a component of money damages. See Geany v. Packers of Indian River, Inc., 660 So.2d 1144 (Fla. 4th DCA 1995) (holding that court erred in requiring appellant to deposit sale proceeds into court registry where underlying suit involved lien on items sold rather than sale proceeds).

REVERSED.

SAWAYA and COHEN, JJ„ concur.


author: PALMER, J.

text:
    Katheryn CURTIS, Appellant, v. Christopher CURTIS, Appellee.
    No. 5D12-1537.
    District Court of Appeal of Florida, Fifth District.
    April 12, 2013.

      John R. Hamilton, of Foley & Lardner, LLP, Orlando, for Appellant.
    H. Kyle Fletcher, Oviedo, for Appellee.
   PALMER, J.

Katheryn Curtis (wife) appeals the trial court’s order denying her petition seeking an injunction for protection against domestic violence against Christopher Curtis (husband). Determining that the trial court erred in denying the petition without holding an evidentiary hearing, we reverse.

The wife filed a sworn petition seeking an injunction against the husband for protection against domestic violence. The petition contained the wife’s account of a violent physical altercation between the parties and a copy of the arrest report prepared by the police after taking the husband into custody in connection with that altercation. The petition alleged that the wife was afraid and that, if he were allowed back into the marital home, the husband would hurt her because the parties have a history of physical violence.

The trial court entered an order summarily denying the wife’s petition the day it was filed. The pre-printed form stated that the wife “failed to comply with one or more statutory requirements applicable to that petition including the following,” after which the court handwrote:

Petitioner is protected by conditions of release in Case No. 2012MM2069A — and may refile if any of those change.

The court attached a docket sheet from the husband’s pending criminal prosecution for the altercation. The sheet stated that the husband had been released on bond and listed the bond’s conditions.

The wife filed a motion for rehearing, arguing that her petition was sufficient to require either an ex parte temporary injunction or a hearing on the petition. The trial court denied the motion, ruling:

The petitioner cannot reasonably fear that she is in danger of becoming a victim of domestic violence when the respondent currently has conditions of release designed to protect her that are more restrictive than an injunction could provide. The respondent is being electronically monitored. Whether the petitioner has been a victim of domestic violence will in this situation be determined in the criminal case. Only one judge should set the rules of contact between these parties.

The wife argues that the trial court erred in denying her petition without first conducting a hearing. We agree.

Section 741.30(1), Florida Statutes (2011), creates a cause of action for an injunction for protection against domestic violence. To state a cause of action, the petitioner must file a sworn petition alleging either (1) reasonable cause to believe that the petitioner is in imminent danger of becoming a victim of domestic violence, or (2) that the petitioner has been a victim of domestic violence. Section 741.30(4) states that, upon the filing of the petition, “the court shall set a hearing to be held at the earliest possible time.” Similarly, rule 12.610(b)(3) of Florida’s Family Law Rules of Procedure provides that the court must set a hearing.

Here, the trial court reasoned that the wife’s petition was insufficient because it failed to establish a reasonable fear of domestic violence, since she was protected by conditions of the husband’s bond. However, the petition alleged sufficient facts that the wife had reasonable cause to believe that she was in imminent danger of becoming, and had already been, a victim of domestic violence. As such, the trial court erred in denying the wife’s petition without first conducting a hearing. See Gonzales v. Clark, 799 So.2d 451 (Fla. 5th DCA 2001); Sanchez v. State, 785 So.2d 672 (Fla. 4th DCA 2001).

The trial court also erred in concluding that the husband’s bond conditions were sufficient to fully protect the wife from domestic violence. First, the bond conditions were not the same as the conditions which can be imposed under the domestic violence injunction statute. For example, section 741.30(6)(a) authorizes a trial court to award the petitioner the exclusive use and possession of the parties’ dwelling; to enter an order of temporary support; and to order the respondent to participate in treatment, intervention, counseling services, or a batterers’ intervention program. Additionally, the protections afforded in the criminal proceeding may not be sufficient to protect the wife because, since she is not a party to that proceeding, she may not receive timely notice of any dismissal of that case or of any change in the husband’s bond conditions.

REVERSED and REMANDED.

SAWAYA and EVANDER, JJ., concur.

      . See § 741.30, Fla. Stat. (2011).


author: LAWSON, J.

text:
    The LANGLEY LIMITED PARTNERSHIP, LLLP, Appellant, v. SCHOOL BOARD OF LAKE COUNTY, FLORIDA, Appellee.
    No. 5D12-2044.
    District Court of Appeal of Florida, Fifth District.
    April 12, 2013.

      Michael M. Brownlee, of Brownstone, P.A., Winter Park, for Appellant.
    Stephen W. Johnson, of McLin Burnsed, Leesburg, for Appellee.

      . Limited Liability Limited Partnership.

   LAWSON, J.

The Langley Limited Partnership, LLLP, (“Langley”), timely appeals a final judgment which ordered Langley to deed forty acres of property to the School Board of Lake County, Florida, (“School Board”), pursuant to a 2005 written agreement between the parties. Reviewing the issue de novo, we agree with Langley that the School Board’s claims for breach of contract and specific performance are time-barred, and reverse the final judgment.

The genesis of the dispute in this case traces back to a separate lawsuit in which the School Board objected to the annexation of a parcel of property owned by Langley into the City of Mascotte. To settle that suit, the parties entered the 2005 agreement at issue in this suit, in which the School Board agreed to dismiss its legal challenge to the annexation in exchange for Langley’s promise to deed forty acres of land to the School Board. This agreement was executed on February 14, 2005. Relevant to this dispute, the 2005 agreement gave the parties time within which to agree on a forty-acre parcel meeting certain criteria set forth in the agreement, but ultimately provided that if the School Board and Langley [could not] agree to the location of a suitable school site by June 15, 2005:

Langley shall deed to the School Board forty (40) acres contained in the parcel identified in Exhibit “A” adjacent to S.R. 33 with a maximum of four hundred (400) foot frontage on S.R. 33 and in a location, configuration, size and dimension that the School Board determines meets the requirements of the rules and regulations of the Florida Department of Education, Lake County, Florida and the School Board re: requirements and preferences for selection of school sites.

The parties were unable to agree on the terms of a deed. The School Board identified a parcel that it wanted conveyed, but Langley flatly rejected the proposal, responding:

[H]ow could you possibly think that we would allow you to “cherry pick” an irregularly shaped property like this and exclude all wetlands? You must square it off and take the good with the bad!

The parties were also never able to resolve a controversy regarding Langley’s desire that any deed contain a restriction requiring the School Board to use the acreage as a school site. The School Board refused to accept a deed restricting its use of the land to a school, and Langley refused to provide a deed that did not include the restriction.

On June 14, 2006, the School Board filed its first lawsuit against Langley alleging breach of the 2005 agreement and seeking specific performance. Using the June 15, 2005 date (by which the agreement required Langley to transfer acreage to the School Board) as the date of Langley’s breach, this suit was filed at the very end of the one-year statute of limitations set forth' in section 95.11(5)(a), Florida Statutes, for an action seeking specific performance of a contract.

As a matter of strategy, apparently, the sole theory that the School Board pled or pursued in the 2006 suit was that Langley breached its agreement by failing to convey the specific “irregularly shaped” parcel to which Langley objected. Accordingly, the only relief sought was an order compelling Langley to convey the “irregularly shaped” parcel to the School Board. The School Board did not seek to enforce the general provision that Langley transfer a compliant forty-acre parcel by June 15, 2005. Following a trial on the matter, the court entered a final judgment in Langley’s favor on July 15, 2009. The trial court found that Langley did not breach the agreement by refusing to convey the “irregularly shaped” parcel because that parcel did not meet the requirements of the contract. For example, the contract required Langley to convey a parcel with “a maximum of four hundred (400) foot frontage on S.R. 33,” whereas the “irregularly shaped” parcel included approximately 650 feet of frontage on S.R. 33. Tellingly, the final judgment itself indicated that relief may have been warranted if the School Board had pursued an alternative theory and remedy. The School Board did not appeal this final judgment.

Almost a year later, by letter to Langley dated October 22, 2010, the School Board demanded that Langley execute a proposed deed for a different forty-acre parcel which did comply with the terms of the agreement (except, according to Langley, the School Board’s proposed deed still did not contain any restriction on the School Board’s use of the property). Langley never tendered an executed deed, and the School Board filed a new lawsuit on November 2, 2010, again alleging breach of the contract and seeking specific performance. Langley answered the complaint, raising the statute of limitations as a bar. The trial court ultimately ruled against Langley on this affirmative defense and entered judgment in favor of the School Board, ordering Langley to convey a forty-acre parcel to the School Board in accordance with the 2005 agreement.

Both parties agree that a one-year limitations period applies to the School Board’s specific performance claim, section 95.11(5)(a), Florida Statutes, with a longer five-year limitations period applicable to the breach of contract claim generally. § 95.11(2)(b), Fla. Stat. Langley argues that the School Board’s cause of action accrued on June 15, 2005, the date by which the agreement required Langley to transfer acreage to the School Board. As such, Langley contends that the five-year statute of limitations expired before the School Board filed its second suit on November 2, 2010. In reaching its decision, the trial court did not disagree with Langley as to the accrual date for the School Board’s cause of action, but ruled that the 2006 suit tolled the statute of limitations, relying on DuPont v. Parker & Co. of Florida, 190 So.2d 388, 391 (Fla. 3d DCA 1966) (holding that a statute of limitations is tolled for a person “prevented from exercising his legal remedy by the pendency of other legal proceedings”).

On appeal, the School Board correctly concedes that the trial court’s reliance on DuPont was misplaced, and that the 2006 litigation did not toll the statute of limitations for its 2010 claims. See § 95.051(2), Fla. Stat. (2011) (“A disability or other reason does not toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.”); cf. Major League Baseball v. Morsani, 790 So.2d 1071, 1077 (Fla.2001) (“the plain language of the tolling statute limits its reach to conditions that actually ‘toll’ the statute of limitations”); Hearndon v. Graham, 767 So.2d 1179, 1185 (Fla.2000) (“the tolling statute specifically precludes application of any tolling provision not specifically provided therein”). However, the School Board argues that the statute of limitations did not begin to run in 2005 because its cause of action did not accrue until after October 22, 2010, when it finally provided Langley with the legal description for a forty-acre parcel of property that was consistent with the terms of the contract.

Although the School Board is correct in asserting the general proposition that a statute of limitations begins to run only “ ‘when a cause of action accrues[,]’” Hearndon, 767 So.2d at 1184 (quoting section 95.031, Florida Statutes), we disagree with its contention that its cause of action against Langley did not accrue until 2010. A cause of action accrues “ ‘when the last element constituting the cause of action occurs.’ ” Id. at 1185-86 (quoting § 95.031, Fla. Stat.). The contract in this case did not condition Langley’s performance on the School Board’s tender of an acceptable legal description or deed. Rather, the contract clearly and unambiguously required Langley to deed property, meeting certain outlined conditions, to the School Board by June 15, 2005. Langley breached the contract on June 15, 2005, when it failed to deed a compliant forty-acre parcel to the School Board. Langley’s breach was the last element required for the School Board to bring its breach of contract claim. See Clark v. Estate of Elrod, 61 So.Sd 416, 418 (Fla. 2d DCA 2011) (“Florida case law consistently holds that a cause of action for breach of contract accrues and the limitations period commences at the time of the breach”) (quoting Technical Packaging, Inc. v. Hanchett, 992 So.2d 309, 313 (Fla. 2d DCA 2008)). Because the School Board did not file suit within the applicable limitations periods, its action against Langley is barred.

Accordingly, we reverse the judgment in favor of the School Board and remand with directions that the trial court either dismiss the School Board’s action or enter judgment in favor of Langley.

REVERSED AND REMANDED WITH DIRECTIONS.

JACOBUS and BERGER, JJ., concur.

      . The parties agree that a legal issue surrounding a statute of limitations question is an issue of law subject to de novo review. See, e.g., Hamilton v. Tanner, 962 So.2d 997 (Fla. 2d DCA 2007).

      . It appears to us that the "rule against splitting causes of action” should have applied as well, such that res judicata principles should have barred a second suit alleging a new breach of contract theory. See, e.g., Leahy v. Batmasian, 960 So.2d 14 (Fla. 4th DCA 2007). However, Langley never raised this defense below.-

      . As concluded by the Second District, the rule in Dupont was superseded by the Legislature’s 1974 adoption of section 95.051, codifying the "specific instances that toll the running of any statute of limitations.” Swartzman v. Harlan, 535 So.2d 605, 607 (Fla. 2d DCA 1988), implied overruling on other grounds recognized by Panagakos v. Laufer, 779 So.2d 296 (Fla. 2d DCA 1999). Additionally, the 2006 litigation in no way prevented the School Board from pursuing the theory pled in the 2010 suit — as that theory could have been alleged as an alternative theory in the 2006 litigation.


author: EVANDER, J.

text:
    Marc WINTHROP, Appellant, v. Desiree CASTELLANO, Appellee.
    No. 5D12-4759.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2013.
    Megan Costa Devault and Carrie Ann Wozniak, of Akerman Senterfitt, Orlando, for Appellant.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, for Appellee.
   EVANDER, J.

Marc Winthrop (the father) appeals from an order that substantially restricted his rights of contact with his thirteen-year-old daughter, Talia. We quash that part of the trial court’s order requiring the father’s in-person contact with the child to take place in a “therapeutic environment.” The record reflects that the trial court’s order was entered after a hearing in which the only matter to be addressed was Thanksgiving contact. As such, the trial court’s imposition of additional restrictions on the father’s right to in-person contact with his daughter was violative of the father’s due process rights.

In 2000, a final judgment of paternity was entered determining that Winthrop was the legal and natural father of Talia and providing for shared parental responsibility. The parties’ relationship has been extremely acrimonious resulting in a significant amount of litigation regarding the parties’ time-sharing rights. In 2011, the parties resolved a modification proceeding by a court-approved stipulation, in which it was agreed that Talia would reside primarily with her mother in Florida. The father, a New York resident, would, inter alia, be entitled to have reasonable contact and access with the minor child when he was in Central Florida. The agreement further provided that the father would be entitled to have the child with him in New York for the Thanksgiving holiday weekend in even-numbered years.

Talia has been battling cancer for the past six years. She has been treated at Sloan-Kettering Cancer Center in New York City, as well as Arnold Palmer Children’s Hospital in Orlando, Florida. Unfortunately, her medical condition worsened in 2012.

On November 1, 2012, the father filed an emergency motion to establish Thanksgiving contact. The father wished to pick-up Talia and fly with her to New York for ten days. The mother objected and filed an “Amended Expedited Motion for Temporary Relief and Response to Father’s Emergency Motion to Set Thanksgiving Contact.” The trial court set an evidentia-ry hearing for November 9, 2012 and advised the parties that the only matter to be addressed would be Thanksgiving contact.

During the evidentiary hearing, the trial court heard substantial testimony regarding Talia’s medical condition and her desire to “not see her father.” The trial court’s ensuing order provided that Talia would not be required to fly to New York for the Thanksgiving holiday. We find no error in the trial court’s determination of that issue. However, the trial court went on to find that until there was family counseling between the parties and the minor child, all future contact between the father and the child was to take place in a therapeutic setting:

That until further Order of the Court, all contact (other than telephone and Skype and other contact as be necessary for medical treatment, hospital visitation, and medical counseling and discussion), between the minor child and her Father be in a therapeutic environment.

We agree with the father that the trial court’s order violated his due process rights by significantly modifying his time-sharing rights when the only matter to be addressed at the November 9, 2012 hearing was the upcoming Thanksgiving contact. See, e.g., Ryan v. Ryan, 784 So.2d 1215, 1217 (Fla. 2d DCA 2001) (“A parent has a constitutional right to the due process of law, including notice and an opportunity to be heard, in a proceeding that affects the parent’s custody of his or her children.”) (citing Shaw v. Shaw, 455 So.2d 1156 (Fla. 5th DCA 1984); see also Aiello v. Aiello, 869 So.2d 22 (Fla. 2d DCA 2004) (holding that father’s due process rights were violated when trial court, while purporting to consider only father’s emergency motion for enforcement of final judgment regarding child visitation, effectively modified judgment by ordering mother to allow father to have supervised visitation until court heard mother’s petition to modify judgment; father had right to unsupervised visitation under judgment, father was not given notice and opportunity to be heard regarding imposition of supervised visitation, and there were no allegations of an emergency that would justify violating the father’s due process rights); Gelato v. Basch, 658 So.2d 664, 665 (Fla. 4th DCA 1995) (holding that mother’s due process rights were violated when temporary change of custody was ordered at hearing that concerned only mother’s motion to allow her fiancée to move into her house with the children).

Accordingly we quash that portion of the trial court’s order requiring that further in-person contact between the father and his daughter occur in a therapeutic environment. We otherwise affirm the trial court’s order.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

LAWSON and COHEN, JJ„ concur.

      . Given the child's medical condition, it is reasonable for the trial court to conclude that the child should not be required to travel to New York.

      . Although somewhat ambiguous, we conclude that the trial court’s order did not limit the father's right to telephone and Skype contact with Talia to matters "necessary for medical treatment, hospital visitation, and medical counseling and discussion.”


author: PER CURIAM.

text:
    Michael DUCLOS, Appellant, v. Jeanette RICHARDSON, Appellee.
    No. 1D12-0217.
    District Court of Appeal of Florida, First District.
    April 22, 2013.
    Rehearing Denied June 3, 2013.

      Rhonda B. Boggess, Gina A. Peretti of Taylor, Day, Currie, Boyd & Johnson, and Amy M. McGuiness of Lynn Leonard & Associates, Jacksonville, for Appellant.
    Glenn E. Cohen and Rebecca Cozart of Barnes & Cohen and-Michael J. Korn of Korn & Zehmer, Jacksonville, for Appel-lee.
   PER CURIAM.

Michael Duelos, the defendant in the automobile negligence action below, appeals the trial court’s post-verdict order granting Jeanette Richardson’s motion for new trial and directed verdict or JNOV as to permanent injury. Because the reasons given' for the JNOV were insufficient grounds upon which to disregard the jury’s verdict, the directed verdict or JNOV of permanency is reversed and remanded for entry of judgment in accordance with the verdict.

In the trial proceedings, the plaintiff sought monetary damages for injury to her neck resulting from an automobile accident with the defendant, under section 627.737(2), ■ Florida Statutes. Under the statute, the plaintiff could recover damages in tort from the defendant “arising out of the ... operation, or use of [defendant’s insured] motor vehicle only in the event that the injury ... consists in whole or in part of: ... (b) Permanent injury within a reasonable degree of medical probability.” Accordingly, to prove that her injury arose out of the defendant’s use of his vehicle and was permanent within a reasonable degree of medical probability, the plaintiff presented the expert testimony of three physicians. These witnesses agreed that the plaintiffs neck injury was permanent.

In response, the defense called Dr. Von Thron, an orthopedic surgeon, licensed in Florida, to testify and present his expert opinion regarding the permanent nature of the plaintiffs neck injury arising out of the accident. Dr. Von Thron had examined the plaintiff in preparation for the lawsuit and reviewed the plaintiffs medical records of treatment she had received over the years. He testified about his observations of the condition and functioning of the plaintiffs neck and generally summarized his review of the plaintiffs medical records pertaining to her neck, including his medical opinion that the plaintiff has arthritis in her neck. The following exchange took place concerning the permanency of Plaintiffs neck injury:

DEFENSE COUNSEL: Do you have an opinion, within a reasonable degree of medical probability, whether Ms. Richardson sustained a permanent injury as a result of the May 2006 accident?
WITNESS: From the records, it does not appear that she did.

He then explained how. he reached this conclusion, based on the records of treatment Plaintiff sought and the reports of other doctors of activities Plaintiff was able to enjoy.

When asked his opinion, within a reasonable degree of medical probability, whether the plaintiff sustained a permanent aggravation of an existing condition, the doctor testified that she did not. He explained this conclusion based on his review of the medical records at the time of the accident and explained how he evaluated permanence of an injury or aggravation. Finally, while agreeing that the plaintiff had neck pain and might continue to need treatment for pain, the doctor opined that the plaintiff did not need future medical treatment “for injuries from this accident.” The surgeon did not change his opinion about the permanence upon cross examination but clarified that in his opinion, the neck injury caused by the accident was temporary and that the plaintiffs more recent neck pain stemmed from another cause, specifically arthritis.

After Dr. Von Thron’s testimony, the plaintiff moved for directed verdict on the issue of permanency. After hearing argument, the trial court denied the motion and found that the witness was “still qualified as an expert” and that the jury would determine the weight and credibility of the doctor’s expert opinion. At the close of all the evidence, the plaintiff renewed her motion for a directed verdict “on an aggravation of a preexisting condition” or to strike Dr. Von Thron’s expert opinion testimony “because there’s no basis for it.” The trial court again denied a directed verdict and ruled that the jury could weigh the doctor’s opinion against the testimony of the other experts and the documents and surveillance video in evidence.

The jury returned a verdict awarding the plaintiff damages for some of her past medical expenses, as previously directed by the court, but found that her neck injury from the accident was not permanent and awarded nothing for future medical expenses the plaintiff might incur. The plaintiff filed a timely motion for new trial and renewed her motion for a directed verdict or JNOV that the accident had caused the permanent aggravation of a pre-existing condition.

After hearing the plaintiffs post-verdict motion, the trial court granted the JNOV and granted a new trial. The court ruled that Dr. Von Thron’s testimony was “incredulous” and was “confusing, mistaken and not reasonable in light of all the other evidence in the case and expert medical testimony regarding permanency of Plaintiffs injuries resulting from the accident.” The trial court granted a new trial “in light of the manifest weight of the evidence regarding ‘permanency’.”

“The standard of review of a trial court’s ruling on a motion for judgment notwithstanding the verdict is de novo.” Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So.3d 806, 309 (Fla. 1st DCA 2011). As stated in Lindon v. Dalton Hotel Corp., 49 So.3d 299, 303 (Fla. 5th DCA 2010):

A motion for directed verdict or JNOV should be granted only if no view of the evidence could support a verdict for the nonmoving party and the trial court therefore determines that no reasonable jury could render a verdict for that party. See Ceeile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999). If there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.

Accordingly, we review the trial court’s order in light of the evidence, or lack thereof, in the record on appeal to determine if any reasonable jury could have rendered the verdict that the auto accident in this case caused no permanent injury to the plaintiffs neck and that she should recover no monetary damages for future treatment of that injury.

If a jury rejects expert medical testimony that an injury cause by an auto accident is permanent without any contrary evidence on the record, a JNOV or directed verdict is warranted. Wald v. Grainger, 64 So.3d 1201 (Fla.2011); State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061 (Fla. 4th DCA 1995). Even if contrary expert evidence is presented, a directed verdict is justified “[wjhere an expert’s testimony is so equivocal, confusing, and internally contradictory and irreconcilable as utterly to lack any probative value.” Simmons-Russ v. Emko, 928 So.2d 397, 398 (Fla. 1st DCA 2006). On the other hand, “the trial court may not weigh the evidence or assess a witness’s credibility” and must deny a directed verdict “if the evidence is conflicting or if different conclusions and inferences can be drawn from it.” Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So.2d 398, 399 (Fla. 2d DCA 1988). If an expert opinion is sufficient to raise a fact question for the jury and the jury makes a determination supported by that expert opinion, a motion for JNOV should be denied. Hancock v. Schorr, 941 So.2d 409 (Fla. 4th DCA 2006).

After careful review of the transcript of Dr. Von Thron’s testimony, we disagree with the trial court that the doctor’s opinions were so confusing, contradictory, etc. as to lack any probative value. The witness clearly responded to counsel’s questions and did not waiver from his expert medical opinion that the neck injury suffered by Plaintiff as a result of the auto accident in 2006 was not permanent and did not require future treatment. Dr. Von Thron’s qualifications as an expert were not genuinely contested. The doctor’s testimony did not mislead the jury by introducing outside considerations, such as the subjects prohibited by the court’s pre-trial orders on the motions in limine. The jury was free to consider the weight and credibility of the opinions of the plaintiffs expert witnesses versus those of Dr. Von Thron, as well as all the other evidence presented. The trial court’s JNOV based on its determination that the defense’s expert’s opinion testimony was not credible and should not be given any weight invaded the province of the jury.

Accordingly, the order granting JNOV and new trial is REVERSED and this case REMANDED for entry of judgment in accordance with the jury’s verdict.

. PADOVANO, CLARK, and SWANSON, JJ., concur.


text:
    MILLER ELECTRIC COMPANY and Commercial Risk Management, Appellants, v. Eric OURSLER, Appellee.
    No. 1D12-2385.
    District Court of Appeal of Florida, First District.
    April 22, 2013.
    Rehearing Denied May 31, 2013.

      Mark K. Eckels and Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for Appellants.
    Lawrence M. Malman, Coral Gables, and Jay M. Levy of Jay M. Levy, P.A., Miami, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) awarding palliative care to Claimant in reliance on the opinions of expert medical advisor (EMA) Dr. Lang, and striking the E/C’s affirmative defense of fraud. For the reasons set forth herein, we REVERSE these rulings as premature. The facts are as follows.

Factual Background

In December 2000, Claimant injured his back at work, and the E/C accepted the injury as compensable. The E/C authorized Dr. Ibars, who placed Claimant at maximum medical improvement (MMI) in 2001, provided palliative care in 2002, and referred Claimant to pain management in 2008. The E/C then authorized Dr. De-Meo, who provided palliative care until August 2010, when, apparently having been shown surveillance video of Claimant obtained by the E/C, Dr. DeMeo opined the compensable injury is no longer the major contributing cause (MCC) of any need for treatment. Based on Dr. De-Meo’s opinion, the E/C denied further medical treatment. Claimant filed petitions for benefits (PFBs) seeking further treatment with Drs. Ibars or DeMeo, but the E/C contested the PFBs (presumably again based on Dr. DeMeo’s opinion).

On April 27, 2011, Claimant went to an unauthorized doctor, Dr. Mouhanna. Dr. Mouhanna prescribed medication and recommended further studies and treatment. In July 2011, a hearing was held at which Claimant then attempted to introduce into evidence, in support of his PFBs, a medical opinion from Dr. Mouhanna that the work injury is the MCC- of Claimant’s need for treatment. The JCC ruled (and the ruling is not challenged) that Dr. Mouhanna was not an independent medical examiner (IME) in this case. The JCC reserved ruling, however, as to whether Dr. Mouh-anna could be deemed authorized as having provided emergency treatment.

Despite having reserved ruling on the admissibility of Dr. Mouhanna’s medical opinions, the JCC sua sponte appointed an expert medical advisor (EMA) to resolve, as he wrote in the order appointing the EMA, “the conflicting opinions between Dr. Mouhanna (if found to be admissible)[,] Dr. Ibars, [and] Dr. Demeo.” The EMA appointed at that time was later disqualified, and replaced with a second doctor to serve as EMA. The subsequent EMA’s opinion was that the work injury is the MCC of Claimant’s continuing need for care. The E/C asserted, however, that Claimant had misrepresented his medical history to that EMA, and by doing so had forfeited all workers’ compensation benefits, as stated in sections 440.09(4) and 440.105(4)(b)l., Florida Statutes. In the final order of April 2012, the JCC found Dr. Mouhanna “provided treatment on ‘an emergent basis,’ ” accepted the EMA’s opinion on MCC, and struck the E/C’s fraud defense as untimely.

Legal Analysis

Regarding the fraud defense, there is no specific time period in which a fraud' defense must be asserted, because “a party is not required to anticipate false testimony from the opposing party, and is, therefore, not required to discovér evidence which would refute false testimony.” Oakdell, Inc. v. Gallardo, 505 So.2d 672, 675 (Fla. 1st DCA 1987), quoted in E. Airlines v. Griffin, 654 So.2d 1194, 1200 (Fla. 1st DCA 1995) (Ervin, J., concurring and dissenting). The proper inquiry for the JCC is whether the E/C’s assertion of the fraud defense violated Claimant’s right to due process. See Isaac v. Green Iguana, Inc., 871 So.2d 1004 (Fla. 1st DCA 2004) (holding failure to assert fraud defense pretrial violates other party’s right to due process). Although timeliness may play into, due process considerations, here the JCC rejected the fraud defense as “untimely” without any indication, in either the order or the record, that he had considered due process. This was error. Such error was not harmless because even though—as will be discussed infra—no EMA should have been appointed (and thus Claimant should never have seen the subsequent EMA), Claimant could nonetheless be barred from receiving benefits if he is found to have made false statements for the purpose of obtaining workers’ compensation benefits (the reversal of the JCC’s error in appointing an EMA does not erase the fact of what took place at the evaluation, or otherwise estop the E/C from asserting a fraud defense; there was no “entrapment” forcing Claimant to make fraudulent statements). On remand, the JCC is permitted to receive evidence on, and rule on, the due process component— and the merits, if the JCC reaches them— of the fraud defense.

Regarding the disqualification of the first EMA, we affirm without further comment. Regarding the JCC’s appointment of an EMA before having received into evidence the medical opinion of Dr. Mouhanna—the opinion that created the conflict necessitating resolution by EMA— was undoubtedly premature, but the prematurity of that contingent appointment was cured by his ultimate ruling that Dr. Mouhanna’s medical opinion was admissible, a ruling evidenced by the April 2012 order. Notwithstanding that cure, there is reversible error at the trunk of the EMA tree—the JCC erred in admitting Dr. Mouhanna’s medical opinion on this record, over the intent of the Legislature set forth in section 440.13(5)(e), Florida Statutes—and, thus, on remand the EMA’s medical opinion on MCC should be excluded, and the JCC should not rely on it.

Regarding the admissibility of Dr. Mouhanna’s medical opinion, there is reversible error. Section 440.18(5)(e) states that the only admissible medical opinion evidence in workers’ compensation cases is that from an authorized treating provider, an IME, or an EMA. Because some medical care from unauthorized providers can later be determined to be covered by workers’ compensation by operation of law, such as that care given in emergency situations or in a period during which an E/C wrongfully denies medical care, such providers’ medical opinions can become admissible as a matter of law. To demonstrate that the care at issue is or was authorized as a matter of law, however, claimants must first convince the JCC, via admissible evidence, of certain prerequisite facts, set forth in section 440.18(2)(c), Florida Statutes. See Parodi v. Florida Contracting Co., Inc., 16 So.3d 958 (Fla. 1st DCA 2009). These facts are akin to elements of proof, and as such the law is substantive; accordingly, the facts required of each claimant are those set forth in the statute in effect on that claimant’s date of accident. See generally Butler v. Bay Ctr./Chubb Ins. Co., 947 So.2d 570, 572 (Fla. 1st DCA 2006) (“Substantive law prescribes applicable duties and rights, while procedural law prescribes the means and methods by which these duties and rights are applied and enforced. Whereas parties have vested rights in the substantive law, they do not have vested rights in the procedure. As such, procedural or remedial changes to law apply without regard to the date of a claimant’s accident.” (citations omitted)).

Here, the applicable version of section 440.13(2)(c) requires Claimant to prove that the care at issue “is compensa-ble and medically necessary,” that there was “a specific request for the treatment,” and that “the employer or carrier [was] given a reasonable time period within which to provide the treatment or care.” (Notably, the version applicable to Mr. Parodi also required proof that the care is “initial,” and “is in accordance with established practice parameters and protocols of treatment as provided for in this chapter,” which the Parodi opinion characterized as “reasonable”-ness. Additionally, both versions of section 440.13(2)(c) require a claimant seeking “to recover any amount personally expended for the treatment or service” to prove either that he “has requested the employer to furnish that treatment or service and the employer has failed, refused, or neglected to do so within a reasonable time,” or that “the nature of the injury requires such treatment, nursing, and services and the employer or his or her superintendent or foreman, having knowledge of the injury, has neglected to provide the treatment or service.” Claimant here is not seeking reimbursement of personal expenditures.) Once these facts are proven to the satisfaction of the JCC, the care from unauthorized providers becomes authorized, and only then do the medical opinions of those providers become admissible.

Now, the astute reader will make three observations. First, some of these prerequisite facts — for example, that a claimant made a specific request — are not medical opinions, but can be established by any admissible evidence (including lay testimony). Second, other prerequisite facts — for example, that the unauthorized care is or was compensable (compensability generally indicating that the care is/was causally related to the compensable injury to the degree required by chapter 440)— are matters of medical opinion and as such require medical opinion evidence. And third, section 440.13(5)(e) excludes only medical opinions from certain sources, not testimony or evidence admitted “for fact purposes only” — that is, the source himself is not incompetent to testify; only his medical opinion is inadmissible.

The import of these three observations is that a claimant seeking either to establish that certain care from unauthorized providers should be authorized, or to introduce medical opinions ordinarily excluded by section 440.13(5)(e), can establish the factual circumstances of the care at issue with “fact-purposes only” evidence from the provider of that care, but must also present medical opinions from another source, one who is already qualified under section 440.13(5)(e) to provide medical opinions, to establish (if at issue and challenged) the compensability and medical necessity (and reasonableness, if required by the applicable version of section 440.13(2)(c)) of the care at issue. A claimant cannot use medical opinion evidence barred by section 440.13(5)(e) to “bootstrap” itself — or other medical opinions from the same source — into evidence. To permit such bootstrapping would contravene the legislative intent of section 440.13(5)(e), and potentially violate the separation of powers doctrine, which forbids the court, in interpreting a statute, from “questioning] the merit of a policy preference or ... substituting] its preference for the legislature’s judgment.” Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355, 357 (Fla. 1st DCA 2008). Once the provider of care in controversy becomes an authorized provider, however, section 440.13(5)(e) no longer bars that provider’s medical opinion. That provider may then be used as a source of medical opinion to support claims for benefits other than authorization of the very care that provider had provided — for example, medical opinions regarding work restrictions that could justify an award of indemnity benefits.

Claimant in this case did not provide admissible medical opinion evidence of compensability (causal relationship) or medical necessity of Dr. Mouhan-na’s care. Therefore, the JCC erred in admitting Dr. Mouhanna’s medical opinion into evidence; it follows there was no conflict of medical opinion, and no need for an EMA. On remand, Claimant should be permitted to obtain and present the missing evidence, not as a second chance, but because as the case progressed below Claimant relied — and should be entitled to rely — on the JCC’s favorable ruling admitting Dr. Mouhanna, and in fact is procedurally forbidden from appealing rulings wholly favorable to him. See, e.g., Dep’t of Health v. Fresenius Med. Care Holdings, Inc., 935 So.2d 686, 687 (Fla. 1st DCA 2006) (“An appeal of a wholly favorable judgment must be dismissed.”); cf. Gomez Lawn Serv., Inc. v. The Hartford, 98 So.3d 212, 217 (Fla. 1st DCA 2012) (holding employer had standing to appeal order at least partially adverse to its interests).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Curtis W. LEE, Appellant, v. BOARD OF TRUSTEES, JACKSONVILLE POLICE & FIRE PENSION FUND, Appellee.
    No. 1D12-0587.
    District Court of Appeal of Florida, First District.
    April 22, 2013.
    Rehearing Denied June 3, 2013.
    Robert M. Dees of Milam Howard Ni-candri Dees & Gillam, P.A., Jacksonville, for Appellant.
    Robert D. Klausner, Stuart A. Kaufman, and Shaun H. Malvin of Klausner & Kaufman, P.A., Plantation, for Appellee.
    Jonathan D. Kaney, Jr., of Kaney & Olivari, P.L., Ormond Beach, for Amicus Curiae First Amendment Foundation, Inc.
   PER CURIAM.

We reverse the order denying appellant’s motion for attorney’s fees. Section 119.12, Florida Statutes (2009), authorizes an award of fees when an agency has “refused to permit a public record to be inspected or copied” in violation of chapter 119. Although fees are not warranted when the entity in charge of the public records at issue was reasonably and understandably unsure of its status as an agency, New York Times Co. v. PHH Mental Health Services, Inc., 616 So.2d 27 (Fla.1993), there is no comparable requirement when agency status is not in doubt, nor has there been since the 1984 amendment of section 119.12, when the legislature removed the necessity of showing that an agency “unreasonably” refused inspection of public records. See, e.g., Johnson v. Jarvis, 74 So.3d 168 (Fla. 1st DCA 2011); Weeks v. Golden, 764 So.2d 633 (Fla. 1st DCA 2000); Office of State Attorney for the Thirteenth Judicial Circuit of Fla. v. Gonzalez, 953 So.2d 759 (Fla. 2d DCA 2007). Accordingly, the lower court erred as a matter of law by concluding that the agency had violated section 119.07 by refusing to disclose certain records, yet plaintiff was not entitled to attorney’s fees because the agency’s violation was neither knowing, willful, nor done with malicious intent. As the supreme court observed in PHH, “refusal by an entity that is clearly an agency within the meaning of chapter 119 will always constitute unlawful refusal.” PHH, 616 So.2d at 29.

REVERSED and REMANDED.

PADOVANO, CLARK, and SWANSON, JJ., concur.


author: SAWAYA, J.

text:
    Wanda I. ROMAN, Individually, and as a Personal Representative of the Estate of Luis Angel Valentin, Deceased and on Behalf of His Survivors, Appellant, v. Sean BOGLE, as the Personal Representative of the Estate of Lickson Gabriel, Deceased, Appellee.
    No. 5D12-1431.
    District Court of Appeal of Florida, Fifth District.
    May 3, 2013.
    Rehearing and Rehearing En Banc Denied June 5, 2013.

      Brandon G. Cathey, of Swope, Rodante P.A., Tampa, and Alexander M. Clem, of Morgan & Morgan, P.A., Orlando, for Appellant.
    Scott A. Cole, and Kathryn L. Smith of Cole, Scott & Kissane, P.A., Miami, and Joseph T. Kissane, and Blake Cole, of Cole, Scott & Kissane, Jacksonville, for Appellee.
   SAWAYA, J.

The dangerous instrumentality doctrine provides that an automobile owner may be held vicariously liable for damages caused by a negligent driver who operates the vehicle with the owner’s consent. The question presented is whether application of the doctrine necessarily makes the driver an agent of the owner for purposes of determining whether the provisions of a release, which releases and discharges the owner and his “agents,” apply to relieve the negligent driver of liability.

This case involves a tragic automobile accident that took the lives of the driver of the vehicle, Lickson Gabriel, and his passenger, Luis Valentin. The accident allegedly occurred when, in the early morning hours, Lickson failed to stop at a red light and collided with a semi-trailer. A wrongful death action was filed by Wanda Roman, individually and as the personal representative of the estate of her deceased son, Luis. The action was filed against Sean Bogle, as Personal Representative of the estate of Lickson, and the owner of the vehicle, Lesore Gabriel, who is Lickson’s father. The latter was included as a defendant pursuant to the dangerous instrumentality doctrine. For reasons not disclosed in the record, Roman executed a release that lies at the center of the current dispute between the parties. That release provides in pertinent part:

In consideration of an immediate cash payment[ ] of TEN THOUSAND DOLLARS AND NO/OO ($10,000.00) to THE ESTATE OF LUIS VALENTIN, receipt whereof is hereby acknowledged by the Releasor, her heirs, personal representatives and assigns, Releasor hereby releases and discharges Releasees, its parents, employees and subsidiaries including, but not limited to, LESORE GABRIEL AND FIRST ACCEPTANCE INSURANCE COMPANY, INC. including their officers, agents, employees, successors and assigns, from any and all claims, demands, damages, costs, expenses, and causes of action, whether direct or derivative, whether based on tort, contract or any other theory of legal recovery, for damages of every type and nature, including but not limited to compensatory damages and punitive damages, for injuries already sustained or that may hereafter be sustained in connection with the December 10, 2008[,] automobile accident which forms the basis of this claim.

The answer filed by Bogle included the affirmative defenses of release and accord and satisfaction based on the release executed by Roman. The release was attached as an exhibit. Roman did not file a reply to the affirmative defenses. Bogle filed a motion for judgment on the pleadings asserting that pursuant to the dangerous instrumentality doctrine, Lickson was the agent of Lesore by virtue of the fact that he was driving Lesore’s automobile with Lesore’s consent. The trial court agreed with that argument, granted the motion, and entered judgment in favor of Bogle based on the release.

Roman appeals, contending that procedurally, the lack of a reply triggers an automatic denial of the allegations in the answer and the affirmative defenses, and that the trial court failed to apply the proper standard that governs motions for judgment on the pleadings. She also argues that Lickson was not named in the release because the release was not intended to apply to him and that he was not the agent of Lesore simply because he was driving Lesore’s vehicle when the accident occurred.

Bogle asserts that the lack of a reply essentially means that Roman did not attempt to avoid the affirmative defenses based on the release and therefore did not deny those defenses. Bogle argues, as he did to the trial court, that this document released Lesore Gabriel, his insurance carrier, and “their ... agents_” That argument is premised on the assertion that Lickson was the agent of Lesore under the dangerous instrumentality doctrine because he drove Lesore’s automobile at the time of the accident with Lesore’s consent.

We will briefly address first the procedural arguments made by the parties. A motion for judgment on the pleadings is a procedural device that allows trial courts to render a judgment as a matter of law prior to trial based solely on the pleadings. Thompson v. Napotnik, 923 So.2d 537, 539 (Fla. 5th DCA 2006). When a defendant files the motion, “all well pleaded allegations in the complaint must be accepted as true and all allegations in the answer which are automatically denied must be accepted as false, the crucial question being whether a cause of action would be established by proving the plaintiffs allegations.” Faircloth v. Garam, 525 So.2d 474, 475 (Fla. 5th DCA 1988); see also Martinez v. Fla. Power & Light Co., 863 So.2d 1204, 1205 (Fla.2003); Williams v. Howard, 329 So.2d 277, 280 (Fla.1976); Plumbing Serv. Co. v. Progressive Plumbing, Inc., 952 So.2d 1211, 1212 (Fla. 5th DCA 2007). Matters outside the pleadings may not be considered when deciding the motion. Faircloth. When a defendant files affirmative defenses and the plaintiff does not reply, the affirmative defenses are deemed denied and therefore false. Brewster v. Castano, 937 So.2d 1268, 1269 (Fla. 2d DCA 2006) (“When there has been no reply to an affirmative defense, it is deemed to be denied and therefore false.”); Ferris v. Ferris, 660 So.2d 418, 418 (Fla. 4th DCA 1995); Jaramillo v. Dubow, 588 So.2d 677, 677-78 (Fla. 3d DCA 1991); Hertz Commercial Leasing Corp. v. Seebeck, 399 So.2d 1110, 1111 (Fla. 5th DCA 1981); Fla. R. Civ. P. 1.110(e) (“Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.”).

We agree with Roman that a reply to the affirmative defenses was not necessary in order to deny them. Moreover, it appears from the record and the order under review that the trial court did not apply the proper standard in deciding the motion. But even if it had, we believe that the trial court erroneously applied the dangerous instrumentality doctrine to interpret the release to mean that Lickson was his father’s agent and therefore Lickson and his estate are released from liability for his negligent operation of his father’s automobile.

The dangerous instrumentality doctrine is a judicially created doctrine, emanating from the common law of England that made its way into the jurisprudence of this state when the Florida Supreme Court adopted it in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). The doctrine provides that:

[0]ne who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality on the highway by one so authorized by the owner.

Id. at 638 (on petition for rehearing). The doctrine is premised on “the theory that the one who originates the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation.” Kraemer v. Gen. Motors Acceptance Corp., 572 So.2d 1363, 1365 (Fla.1990). Its purpose is to require financial responsibility for the carnage on the road caused by negligent drivers of automobiles entrusted to them by the owner. See id.

There are decisions, some of rather ancient vintage, that seem to designate the origins of the doctrine as flowing from common law principles governing respon-deat superior based on agency relationships. See, e.g., Orefice v. Albert, 237 So.2d 142, 144 (Fla.1970); Weber v. Porco, 100 So.2d 146, 149 (Fla.1958); May v. Palm Beach Chem. Co., 77 So.2d 468, 472 (Fla.1955) (“A study of the origin and application of the doctrine of vicarious liability on the part of an automobile owner shows clearly that whatever may be the limitations of its scope of application, liability is bottomed squarely upon the doctrine of respondeat superior arising from a principal and agent relationship implied in law.”); see also Lynch v. Walker, 159 Fla. 188, 81 So.2d 268, 271 (1947), overruled on other grounds, Meister v. Fisher, 462 So.2d 1071 (Fla.1984). On the other hand, there are decisions that recognize the origins of the doctrine as emanating from common law principles of master and servant. Susco Car Rental Sys. of Fla. v. Leonard, 112 So.2d 832, 886 (Fla.1959); Anderson; Saullo v. Douglas, 957 So.2d 80, 86 (Fla. 5th DCA 2007); Burch v. Sun State Ford, Inc., 864 So.2d 466, 470 (Fla. 5th DCA 2004). Moreover, in Saullo, this court specifically stated that the doctrine is not based on respondeat superior and agency principles. Saullo, 957 So.2d at 86.

Despite the conflicting statements in the case law, as the doctrine has evolved and expanded over the many years since its adoption, the significance of its origins and the common law principles upon which they are based has steadily diminished in importance when determining the scope and reach of the doctrine. The courts began to increasingly recognize the purpose of the doctrine as a more significant factor. If it were otherwise, the courts would have had a very difficult time expanding the doctrine to lessors and bailors. In Lynch, for example, the court expanded the reach of the doctrine when it held that a bailor for hire may be vicariously liable for the negligent operation of the vehicle by the bailee. 31 So.2d at 271-72. The court noted that “ ‘[b]ailment’, ‘agency’ and ‘masters and servants’ are distinct concepts and involve different relationships,” and that confusion existed in attempting to define the distinctions for purposes of applying the dangerous instrumentality doe-trine, especially “as to the basis of liability of a bailor-owner of an automobile for torts committed by his bailee.” Id. at 271. The court attached little significance to the distinctions because it determined that the doctrine is based on “a common and basic factor to wit: When an owner authorizes and permits his automobile to be used by another he is liable in damages for injuries to third persons caused by the negligent operation so authorized by the owner.” Id.

The court in Susco attempted to eliminate the confusion altogether by explaining:

Some of the apparent inconsistencies in the cases result from efforts to reason within the confines of inapplicable principles, such as those of respondent superior. Confusion can be reduced by recognition that liability under this doctrine is imposed independent of other theories of vicarious responsibility in tort law.

112 So.2d at 836. Susco was followed by Meister, wherein the court explained the doctrine as follows:

This form of vicarious liability is not based on respondent superior or an agency conception, but on the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.

462 So.2d at 1072 (quoting Jordan v. Kelson, 299 So.2d 109, 111 (Fla. 4th DCA 1974)) (emphasis omitted). The court in Rippy again reiterated that “[t]he doctrine is based on ‘the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrument by anyone operating it with his knowledge and consent.’ ” 80 So.3d at 307 (quoting Meister).

This court in Saullo followed Meister and held that “[t]he doctrine is not based on respondeat superior or agency, but on ‘the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.’ ” 957 So.2d at 86 (quoting Meister) (emphasis omitted); see also Burch, 864 So.2d at 470 (“Although originally only applicable in the master-servant context, the doctrine was later extended to bailments, including lessor-lessee relationships.”).

Whatever utility may have derived from the perceived need to establish the parentage of the doctrine’s origins, we do not believe such endeavors are necessary to resolve the issue in this case. As the courts have repeatedly stated, the doctrine is based on the declared principle that an owner of a vehicle may be vicariously liable for the negligence of a driver who operates the vehicle with the owner’s knowledge and consent. Application of this principle does not make the driver an agent any more than it does an employee, bailee, or lessee. While the doctrine may apply to instances where an agency relationship exists between the owner and driver, that relationship is not necessary in order to make the doctrine applicable and it cannot be determined as a matter of law that such an agency relationship existed in the instant case.

“The essential elements necessary to establish an actual agency relationship are (1) acknowledgment by the principal that the agent will act for him, (2) acceptance by the agent of the undertaking, and (3) control by the principal over the agent’s actions.” Amstar Ins. Co. v. Cadet, 862 So.2d 736, 741 (Fla. 5th DCA 2003) (citing Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003) and Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990)). Here, there is no evidence in this record that any agency relationship existed between the driver and the owner and even if there were, it would have been impermissible to consider matters beyond the confínes of the pleadings. Faircloth. Whether an agency relationship exists is generally a question for the jury to resolve and the party alleging the relationship has the burden of proving its existence. Font v. Stanley Steemer Int'l, Inc., 849 So.2d 1214, 1216 (Fla. 5th DCA 2003).

If Bogle seeks to establish that Lickson was the agent of his father, Bogle will have the burden of proving the agency relationship. Reliance on the dangerous instrumentality doctrine to do so was error. We reverse the judgment under review and remand this case for further proceedings.

REVERSED and REMANDED.

TORPY and JACOBUS, JJ, concur.

      . The order granting the motion specifically provides that "[bjased upon the foregoing analysis, it is ORDERED AND ADJUDGED that Defendant, Sean Bogle, as Personal Representative of the Estate of Lickson Gabriel's Motion for Judgment on the Pleadings is hereby GRANTED. This Court hereby enters Final Judgment in favor of the Defendant and Orders that the Plaintiff shall take nothing by this action and go hence without day.”

      . "The dangerous instrumentality doctrine is an old and well-settled rule that can be traced back to English common law.” Rippy v. Shepard, 80 So.3d 305, 306 (Fla.2012).

      . As the court noted in Salsbury v. Kapka, 41 So.3d 1103 (Fla. 4th DCA 2010), “[t]he Legislature is ... free to alter the dangerous instrumentality doctrine as it deems appropriate.” Id. at 1105 n. 1. However, in order to resolve the issue before us, it is not necessary to discuss those enactments where the Legislature has done so.

      . Appellee’s reliance on Ford v. Coleman, 462 So.2d 834 (Fla. 5th DCA 1984), is misplaced. In Ford, this court was confronted with a situation where a vehicle owned by a corporation was driven by an individual who claimed to be an agent of the corporation. The driver caused an accident and the injured passenger gave a release to the corporation releasing "its agents, servants, successors, heirs, executors and administrators.” Id. at 835. When the injured passenger subsequently sued the driver, the driver pled the release as an affirmative defense, claiming that he was an agent under the release. The case proceeded to trial and the jury resolved the disputed issues of fact relating to the release and, as it appears from the opinion, the trial court thereafter found as a matter of law that the driver was an agent of the corporation covered under the release. Moreover, as we have explained, more recent decisions from the Florida Supreme Court and this court clearly hold that application of the doctrine is not based on an agency relationship and therefore does not mean as a matter of law that the driver is the agent of the owner.


author: BERGER, J.

text:
    CHUBB CUSTOM INSURANCE COMPANY, Appellant, v. U.T. INVESTMENTS, LLC d/b/a Best Vacation Inn, Appellee.
    No. 5D12-263.
    District Court of Appeal of Florida, Fifth District.
    May 17, 2013.
    Clarification Granted June 6, 2013.
    Carol M. Rooney and John V. Garaffa, of Butler, Pappas, Weihmuller, Katz, Craig, LLP, Tampa, for Appellant.
    William H. Rogner, of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellee.
   BERGER, J.

Chubb Custom Insurance Company, (“Chubb”), timely appeals a final judgment in favor of U.T. Investments, LLC, d/b/a Best Vacation Inn, (“U.T.”), in the amount of $3,072.71, despite a jury verdict finding zero damages were owed by Chubb. Chubb contends the record does not support the trial court’s entry of a net judgment in favor of U.T. given a zero jury verdict for U.T. and the unrebutted evidence of prior payments submitted at trial. We agree and reverse.

U.T. owns “The Best Vacation Inn,” a sixty-two room hotel located in Kissimmee, Florida. On August 5, 2009, a fire occurred at the hotel. Thereafter, U.T. sought recovery under its insurance policy with Chubb.

The parties settled U.T.’s claims for contents loss (i.e., business personal property) and business interruption. However, they were unable to settle the claim for building damages. There remained a dispute over the scope of damages to the building and the cost to repair those damages. Specifically, there was a large difference between what U.T. believed it was owed under the policy for the fire damage ($1,030,849.13) and what Chubb claimed it had already paid ($371,455.76).

The case proceeded to trial, during which the parties were able to reach an agreement on the scope of damage to twelve of the hotel rooms. As to those twelve rooms, the parties agreed damages totaled $188,734.18. The jury was left to decide whether any additional amounts were owed to U.T. by Chubb. The jury determined no other damages were caused by the fire and returned a zero verdict, finding Chubb owed no additional payments to U.T.

Despite the jury’s verdict, U.T. moved for entry of final judgment, claiming that pursuant to the stipulation regarding the “fire rooms” during trial, U.T. was entitled to $188,734.18 minus a set-off of $185,661.47, the only amount U.T. asserts was established during trial as having gone toward “building damages,” leaving a total judgment in its favor for $3,072.71. Chubb opposed U.T.’s motion, asserting, inter alia, that U.T. ignored the unrebut-ted testimony of Chubb’s adjuster, Don Deckers, that he directed payment to U.T. in the amount of undisputed damages for the building claim as set forth in the revised estimate prepared by Madsen Knep-pers & Associates, structural engineers, which prior testimony established was in the amount of $360,364.18. Nevertheless, the court ultimately entered final judgment in U.T.’s favor in the amount of $3,072.71.

A trial court’s finding of fact based on conclusions drawn from undisputed evidence is subject to review by the less restrictive “clearly erroneous” standard of review. See Holland v. Gross, 89 So.2d 255, 258 (Fla.1956). The unrebutted evidence in this case clearly establishes that Chubb paid U.T. no less than $360,364.18 for building damage caused by the August 5, 2009 fire. This amount was clearly in excess of the $188,734.18 agreed to by the parties. By entering judgment in favor of U.T. in the amount of $8,072.71, the trial court ignored the unrebutted evidence of prior payments on -U.T.’s building claim, as well as the jury’s verdict finding Chubb owed no additional payments to U.T. This was error. Accordingly, we reverse and remand with directions to vacate the final judgment and enter judgment in favor of Chubb.

REVERSED AND REMANDED.

TORPY and JACOBUS, JJ., concur.

      . The exact nature of the dispute was set forth in the parties’ joint pretrial statement:
      At approximately 2 a.m. on August 5, 2009, the Best Vacation Inn in Kissimmee, Florida suffered a fire in the wall between rooms 211 and 212. The Parties have settled the insured’s claims for contents and business interruption.
      The Plaintiff asserts that the roof on the hotel subject to the fire and the adjacent building must be replaced in its entirety. The Defendant contends that the damage caused by the fire can be repaired without replacing the entire roof of the hotel. Plaintiff contends that the fire between rooms 211 and 212 resulted in damage to 45 of the 62 rooms within the effected building. The Defendant asserts that there was damage in no more than 36 of the 62 rooms. The parties disagree on the scope and type of damage in each room that can be attributed to the fire.

      . Evidence was presented at trial establishing that Chubb had issued checks to U.T. in the amounts of $50,000.00, $185,661.47, and $135,794.29 totaling $371,455.76.

      . U.T. argued that because Chubb’s adjuster could not specifically identify the $50,000.00 check as payment for the structure, the amount could not be applied to set off the agreed amount of $188,734.18.

      . Chubb also argued that the checks for $50,000.00 and $185,661.47, which were entered into evidence as joint exhibits, both contained the description, "Type of Payment: Settlement, 5101 Building.”

      . The fact that Chubb paid this amount was never at issue until U.T.’s post-verdict motion to enter judgment. Indeed, throughout the trial, including opening statement, closing arguments, and jury instruction, it was clear the only dispute was whether Chubb was required to pay additional payments beyond what was already paid.

      . We also note that the net judgment in favor of U.T. was contrary to the parties’ joint pretrial stipulation. However, because Chubb failed to raise the issue below, the argument was not preserved for appeal.


author: NORTHCUTT, Judge.

text:
    Barrington HUMPHREY, Appellant, v. DEUTSCHE BANK NATIONAL TRUST CO., Appellee.
    No. 2D12-1172.
    District Court of Appeal of Florida, Second District.
    May 17, 2013.
    Jeffrey Sullivan of Stidham & Stidham, P.A., Bartow, for Appellant.
    Owen Sokolof and Elizabeth Tamborra of Morris Hardwick Schneider, LLC, Tampa, for Appellee.
   NORTHCUTT, Judge.

Barrington Humphrey is the named defendant in a mortgage foreclosure suit filed by Deutsche Bank National Trust Co. On Humphrey’s motion, the circuit court quashed the service of process on him. In its order, the circuit court also directed Humphrey to provide his current address to the Bank. Humphrey challenges this provision on appeal. The Bank has neither appealed the quashal of service nor filed an answer brief in response to Humphrey’s appeal. We treat this case as an appeal from a nonfinal order determining jurisdiction of the person. See Fla. R.App. P. 9.130(a)(3)(C)(i). We reverse.

Without proper service, the court never secured personal jurisdiction over Humphrey and, thus, had no power over him. That being so, the court had no authority to direct Humphrey to do anything. See Riddick v. Suncoast Beauty Coll., Inc., 570 So.2d 1064, 1065-66 (Fla. 2d DCA 1990) (reversing injunction entered against individuals not named in suit or served); see also Springbrook Commons, Ltd. v. Brown, 761 So.2d 1192, 1194 (Fla. 4th DCA 2000) (“If the court is to exercise its power over a person it must have jurisdiction over that individual.... In the absence of personal service or a statutorily permitted alternative, the court lacks jurisdiction to enter a personal judgment against the defendant”). In Alger v. Peters, 88 So.2d 903 (Fla.1956), the Florida Supreme Court explained the necessity of personal jurisdiction:

[N]o court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is pro tanto brutum fulmen [to that extent an empty threat], and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service....

Id. at 907 (quoting Alemite Mfg. Corp. v. Staff, 42 F.2d 882, 832-33 (2d Cir.1930) (Hand, J.)).

We reverse the order quashing service insofar as it directed Humphrey to furnish his address to the Bank.

Reversed in part.

DAVIS and BLACK, JJ., Concur.


author: WALLACE, Judge.

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee of the Lehman Brothers Small Balance Commercial Mortgage Pass-Through Certificates, 2006-3, Appellant, v. Terence B. CRAMER and Nancy H. Cramer, as Trustees of the Cramer Family Living Trust UTD December 14, 2004; Terence B. Cramer, individually; Nancy H. Cramer, individually; and Cramer Corporation, Appellees.
    No. 2D12-4076.
    District Court of Appeal of Florida, Second District.
    May 22, 2013.

      Lee D. Mackson, Michelle L. Gerber, and Stephen T. Maher of Shutts & Bowen, LLP, Miami, for Appellant.
    No appearance for Appellees.
   WALLACE, Judge.

U.S. Bank National Association, as Trustee (U.S.Bank), appeals an order denying its second amended motion for the appointment of a receiver for a former gas station property on which it had already obtained a final judgment of foreclosure. Because the foreclosure sale was necessarily deferred pending the survey and remediation of environmental problems affecting the property, the circuit court abused its discretion in denying U.S. Bank’s motion for the appointment of a receiver.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On or about August 10, 2006, U.S. Bank’s predecessor in interest loaned Terence B. Cramer and Nancy H. Cramer the sum of $937,500. As security for the debt, the Cramers executed a mortgage on real property that was formerly the site of a gas station. At the time of the proceedings in the circuit court, the operations on the property included an automotive repair shop, an automotive sales business, and a car wash. Notably, the mortgage provided that upon a default by the Cramers, “the court shall forthwith appoint such receiver ... as a matter of strict right to Lender and without notice to [the Cram-ers] and without reference to the adequacy or inadequacy of the value of the Property.”

The loan went into default in 2008. U.S. Bank filed its action for' foreclosure in December 2009. On August 25, 2010, the circuit court entered a final judgment of foreclosure in favor of U.S. Bank. Under the final judgment, the amount due to U.S. Bank as of August 25, 2010, was $1,269,949.66.

After the entry of the final judgment, the foreclosure sale was cancelled. U.S. Bank moved for the appointment of a receiver of the property. U.S. Bank asserted four grounds in support of its motion: (1) the mortgage provided that U.S. Bank was entitled to the appointment of a receiver upon a default; (2) the Cramers had failed to pay real estate taxes and obtain insurance on the mortgaged property for five years; (3) the existing environmental problems amounted to physical waste of the property; and (4) the Cramers had repeatedly violated an existing rents order. In response, the Cramers argued that the appointment of a receiver was unnecessary because the circuit court had already entered a foreclosure judgment; therefore, U.S. Bank could proceed to foreclosure, take ownership and possession, and proceed with its plans for the property.

The circuit court conducted three separate hearings on the motion for appointment of a receiver. At the conclusion of the third hearing, the circuit court did not rule on the motion. Instead, the circuit court asked the parties to submit legal memoranda directed to the issue of whether the circuit court had the authority to appoint a receiver after the entry of final judgment. U.S. Bank timely submitted the requested memorandum to the court; the Cramers did not. After U.S. Bank submitted its memorandum, the circuit court entered a written order denying the motion. The circuit court’s order did not explain the basis for its ruling. This appeal followed.

II. THE STANDARD OF REVIEW

We review an order granting or denying a motion for the appointment of a receiver for abuse of discretion. Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 247 (1930); Puma Enters. Corp. v. Vitale, 566 So.2d 1343, 1344 (Fla. 3d DCA 1990); Colley v. First Fed. Sav. & Loan Ass’n. of Panama City, 516 So.2d 344, 345 (Fla. 1st DCA 1987). In this case, two factors make our task of appellate review more difficult. First, the circuit court failed to explain in its order the rationale for its decision to deny U.S. Bank’s motion. Second, the Cramers have not favored this court with a brief in support of the order under review.

III. THE APPLICABLE LAW

“A receiver is typically appointed in foreclosure proceedings to preserve the status quo, preserve the property, and collect and apply rents and profits to the payment of the mortgage.” DeSilva v. First Cmty. Bank of Am., 42 So.3d 285, 290 (Fla. 2d DCA 2010); see also Baumgartner, 128 So. at 248 (observing same). “The appointment of a receiver ... should be approached with caution and circumspection.” DeSilva, 42 So.3d at 288 (alteration in original) (quoting Edenfield v. Crisp, 186 So.2d 545, 548 (Fla. 2d DCA 1966)). A cautious approach to the appointment of a receiver is appropriate because such an appointment “is in derogation of the fundamental right of the legal owner to possession of the property.” Twinjay Chambers P’ship. v. Suarez, 556 So.2d 781, 781 (Fla. 2d DCA 1990); see also Plaza v. Plaza, 78 So.3d 4, 6 (Fla. 3d DCA 2011) (“Appointing a receiver is a rare and extraordinary remedy.”); Warshall v. Price, 617 So.2d 751, 752 (Fla. 4th DCA 1993) (“Before ... trial[,] ... a motion for the appointment of a receiver of the property of the defendant is a drastic matter constituting a taking of property and requires a showing of exigent circumstances.”); Electro Meek Prods., Inc. v. Borona, 324 So.2d 638, 639 (Fla. 3d DCA 1976) (“The appointment of a receiver is a drastic matter in that it constitutes a taking of property and, therefore, should not be used by the courts except in cases of necessity.”). Thus, to be entitled to the appointment of a receiver, the movant must show “that [the] property is subject to a serious loss,” and that the movant has a “clear legal right ... to the property.” Plaza, 78 So.3d at 6 (alteration in original) (quoting Apalachicola N.R. Co. v. Sommers, 79 Fla. 816, 85 So. 361, 361 (1920)).

However, after the entry of a final judgment, the considerations dictating a cautious approach to the appointment of a receiver may carry less weight.

The reasons for arguing against a receiver have disappeared. After all, the judgment creditor can now simply send the sheriff out to the judgment debtor’s business with the unsatisfied writ of execution and levy against all property of the judgment debtor in sight and, thereby, effectively put the debtor out of business. In this circumstance, where the judgment creditor elects the less drastic remedy of a receiver' to take charge of the debtor’s accounts receivable, the debtor can hardly be heard to argue that the receiver is more harsh than the levy.

War shall, 617 So.2d at 752.

After the entry of a final judgment, the requirement that the movant establish some legal right in the property is satisfied, as in this case, by virtue of the final judgment. In addition, under Florida law, as U.S. Bank argued in its memorandum submitted to the circuit court, a court has the authority to appoint a receiver postjudgment. See Warshall, 617 So.2d at 752; see also Fed. Land Bank of Columbia v. Evans, 106 Fla. 560, .143 So. 403, 404 (1932) (recognizing that in certain circumstances, a receiver may be appointed after the entry of a final judgment of foreclosure); Carr v. Marion Mortg. Co., 99 Fla. 540, 128 So. 12, 14 (1930) (noting same).

It is true that generally the appointment of a receiver can serve no good purpose after the entry of a final decree ordering the sale of property under foreclosure and to collect money upon which the complainant has a lien and which had already been paid into court; but, where it appears that to protect the interests of all parties the decree of sale under foreclosure is to be postponed until the termination of other litigation, which may result in the postponement of the execution of the decree for a long period of time, as in this case, and where the terms of the mortgage being foreclosed specifically provide for the appointment of a receiver by the court, the complainant is entitled to the appointment of such receiver pending the execution of the final decree, to the end .that the rights of all parties may be protected and to avoid waste or depreciation in the security.

Evans, 143 So. at 404 (emphasis added); see also Carr, 128 So. at. 14 (“A receiver may be appointed after judicial sale[] when such appointment is necessary to protect the interests and preserve the rights of the parties to the action.”). Therefore, although there must still be some need to protect the property from waste or depreciation before a receiver may be appointed postjudgment, the concern about effecting a taking of the owner’s property before the entry of judgment is eliminated or lessened by the entry of the judgment.

IV. DISCUSSION

On the facts of this case, the grounds asserted by U.S. Bank for the appointment of a receiver based on the nonpayment of taxes and insurance and the alleged violations of the rents order were arguably insufficient. We cannot say that the circuit court abused its discretion in declining to appoint a receiver for these reasons. However, we conclude that the circuit court abused its discretion in denying U.S. Bank’s motion because (1) the mortgage expressly provided for the appointment of a receiver in the event of a default and (2) U.S. Bank established that it had been unable to sell the property in a timely manner because of the existing environmental contamination on the property-

At the third hearing on the motion for appointment of a receiver, U.S. Bank argued that there was physical waste on the property in the form of environmental damage resulting from the garage activities conducted on the site. U.S. Bank argued further that it had been unable to obtain environmental remediation reports, which had to be dated within a certain period before it took possession of the property. For these reasons, U.S. Bank was unable to proceed immediately to have the property sold and possibly take title to it. Obviously, U.S. Bank’s concerns about avoiding exposure to liability for environmental damage on the property in question — a former gas station — were well grounded in law and in fact. See generally Manuel Kushner & Kelly O’Keefe, Commercial Mortgages, in Florida Real Property Litigation, §§ 5.88-.90, at 5-B-7 to 5-B-15 (Fla. Bar CLE, 6th ed. 2011) (discussing the circumstances under which liability for the cleanup of environmental conditions on the property may attach to a lender or foreclosing party); Roger D. Schwenke, Environmental Issues in a Real Estate Transaction, in Florida Real Property Complex Transactions, §§ 12.14-.17, 12-40 to 12-54 (Fla. Bar CLE, 6th ed. 2011) (same).

U.S. Bank supported its arguments with an affidavit from Jeremy Mullins, “a Special Assets Specialist with Aurora Bank FSB f/k/a Lehman Brothers Bank, FSB, Special Servicer for the Plaintiff in this action and Plaintiffs authorized representative.” In his affidavit, Mr. Mullins stated: Mr. Mullins stated further that U.S. Bank was prohibited from proceeding to a foreclosure sale because the property had not received the requisite environmental clearance. Mr. Mullins explained that when U.S. Bank performed tests on the property, its “environmental consultants noted the presence of numerous hazardous and regulated wastes on the Mortgaged Property, which need to be removed and reme-diated prior to any foreclosure sale.” Specifically, Mr. Mullins stated that U.S. Bank’s “consultants discovered petroleum stains present throughout the garage bays, in-ground hydraulic lifts, and heavy petroleum residue that needs to be tested and likely removed.” Significantly, Mr. Mullins concluded that “[t]he Mortgaged Property will not obtain environmental clearance until a Receiver is appointed and remediates the environmental issues preventing such clearance.”

The Loan at issue is part of a securi-tized trust, and all dealings relating to the servicing of the Loan are governed by the terms of the operative Pooling and Servicing Agreement. Plaintiff, as the Trustee for the Loan, has an obligation to the investors and bondholders to administer the Loan in accordance with the Pooling and Servicing Agreement. As part of its duties and obligations, Plaintiff is not permitted to proceed to foreclosure sale unless and until the Mortgaged Property receives environmental clearance.

We conclude that U.S. Bank established a prima facie case through the affidavit of Mr. Mullins demonstrating the need for the appointment of a receiver to complete the necessary environmental studies and any required remediation before it could proceed to a foreclosure sale. After the movant establishes a prima facie case for the appointment of a receiver, the burden of proof shifts to the party opposing the appointment. Howley v. Sage Shopping Plaza Corp., 336 So.2d 691, 692 (Fla. 4th DCA 1976). The Cramers did not dispute Mr. Mullins’ statements of fact or his conclusions. Moreover, they did not object to the use of the affidavit on the ground of the unavailability of Mr. Mullins for cross-examination. Instead, the Cramers merely argued that U.S. Bank had its final judgment of foreclosure and it should proceed to sell the property and take possession of it. The Cramers’ argument ignored the undisputed facts — hazardous and regulated wastes contaminated the property and someone had to address the environmental problems before the property could be sold.

The circumstances in this case are similar to those in Evans. In that case, the parties had agreed to postpone the foreclosure sale pending the termination of other litigation. 143 So. at 404. In this case, as in Evans, the necessity to postpone the foreclosure sale for a significant period of time and the inclusion in the mortgage of a provision for the appointment of a receiver are substantial considerations supporting the appointment of a receiver. In this case, two other factors support U.S. Bank’s position. First, the Cramers offered only token opposition to the appointment of a receiver. The Cramers’ arguments did nothing to undermine U.S. Bank’s compelling presentation in support of its motion. Second, the circuit court did not articulate a rationale in support of the order under review. In light of the somewhat unusual circumstances of this case, we are unable to determine whether the circuit court exercised a reasoned discretion in deciding to deny U.S. Bank’s motion for the appointment of a receiver.

V. CONCLUSION

For the foregoing reasons, we conclude that the circuit court abused its discretion in denying U.S. Bank’s motion for the appointment of a receiver. We reverse the order under review, and we remand for the entry of an order appointing a receiver. The circuit court should specify in its order the powers to be granted to the receiver. See MB Plaza, LLC v. Wells Fargo Bank, N.A., 72 So.3d 205, 207-08 (Fla. 2d DCA 2011).

Reversed and remanded with directions.

VILLANTI and BLACK, JJ., Concur.


text:
    Christopher HOUSTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D12-2870, 1D12-3066.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Michael Jerome Titus, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

We affirm appellant’s convictions and sentences without discussion. Any failure in the written probation revocation order to specify the conditions of probation that were violated cannot be raised for the first time on appeal. However, we agree the trial court erred in denying appellant’s rule 8.800(b)(2) motion to correct the written judgment and sentence to reflect that appellant entered a nolo contendere plea to the offense charged in circuit court case number 2009-CF-814. Accordingly, we remand with directions that the trial court enter a corrected judgment and sentence.

AFFIRMED and REMANDED with directions.

PADOVANO, WETHERELL, and SWANSON, JJ„ concur.


author: THOMAS, J.

text:
    Paul GRIMES, Appellant, v. Larry ASHLEY, Sheriff, et al., Appellee.
    No. 1D12-3559.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Paul Grimes, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the denial of his petition for a writ of mandamus seeking removal of a detainer. The trial court failed to address Appellant’s argument that the charges that formed the basis of the de-tainer were barred by the expiration of the statute of limitations. As we must consider Appellant’s allegations in his petition as true, Appellant has sufficiently alleged a basis for removal of the detainer, and the trial court should have considered the same. See Jenkins v. State, 957 So.2d 20 (Fla. 5th DCA 2007); Perkins v. State, 766 So.2d 1173 (Fla. 5th DCA 2000).

Accordingly, we reverse the appealed order and remand with directions to the lower court to expeditiously issue an order to the Okaloosa County Sheriffs Office to show cause why mandamus should not be granted and the detainer removed.

REVERSED and REMANDED with directions.

BENTON, C.J., and CLARK, J„ concur.


text:
    Matthew JABERI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3987.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Matthew Jaberi, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Charles ALDRIDGE, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5324.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Charles Aldridge, Sr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Robert McKINNON, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0942.
    District Court of Appeal of Florida, First District.
    May 22, 2013.

      Robert McKinnon, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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