text:
    Matthew DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3371.
    District Court of Appeal of Florida, First District.
    Jan. 2, 2015.
    Clyde M. Taylor, Jr., Taylor & Taylor, PA, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Matthew Dixon appealed his sentence following his entry of an open no contest plea. We affirmed Appellant’s sentence in conformance with State v. Holmes, 909 So.2d 526 (Fla. 1st DCA 2005), which required Appellant to present evidence that the Department of Corrections could not accommodate his necessary, specialized treatment in order to receive a downward departure sentence under section 921.0026(2)(d), Florida Statutes (2013). See Dixon v. State, 128 So.3d 972 (Fla. 1st DCA 2013), review dismissed, SC14-196, 2014 WL 1237108 (Fla.2014). The Florida Supreme Court has since disapproved of Holmes, quashed this Court’s decision, and remanded the cause.

Accordingly, we reverse Appellant’s sentence and remand for a new sentencing hearing in order to give the State an opportunity to present evidence as to whether DOC can provide the required specialized treatment and for the trial court to consider whether to render a downward departure sentence. See Chubbuck, 141 So.3d at 1168-69 (quoting Banks v. State, 732 So.2d 1065, 1067-68 (Fla.1999)) (reaffirming that the process for departing from the guidelines requires the trial court to consider: (1) whether it legally can depart; and (2) if satisfied that it could, whether it should depart). We find no merit in Appellant’s other arguments, and so affirm in all other respects.

REVERSED and REMANDED.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.

      . See State v. Chubbuck, 141 So.3d 1163 (Fla. 2014).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.S., Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2384.
    District Court of Appeal of Florida, First District.
    Jan. 2, 2015.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

J.S. appeals from a restitution order entered after he pled no contest to trespass and petit theft. Because the trial court conducted the restitution hearing in J.S.’s absence without competent substantial evidence to establish that J.S. had knowingly and voluntarily waived his right to be present at the hearing, the State properly conceded error. We, therefore, reverse and remand for a new restitution hearing. See M.W.G. v. State, 945 So.2d 597 (Fla. 2d DCA 2006).

WOLF, BENTON, and MAKAR, JJ., concur.


author: COHEN, J.

text:
    Andrew LAMB, Appellant, v. Roxanna LAMB, Appellee.
    No. 5D13-1517.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellant.

      Richard Valle, of The Valle Law Firm, P.A., Orlando, for Appellee.
   COHEN, J.

Andrew Lamb (“Former Husband”) appeals a final judgment dissolving his marriage to Roxanna Lamb (“Former Wife”). We reverse and remand for a new trial.

Prior to being married in Scotland, the parties entered into a “Minute of Agreement,” Scotland’s equivalent of an ante-nuptial agreement. This was Former Wife’s fourth marriage; Former Husband’s first. As acknowledged by the parties, that agreement contained a choice-of- ■ law provision selecting Scottish law.

The parties lived together in Florida, but Former Wife filed for divorce after eighteen months of marriage. Thereafter, they entered into a postnuptial agreement under which Former Husband would give Former Wife money to purchase a new home and for cosmetic surgery. The agreement also distributed personal property and family pets.

In the dissolution action, Former Wife disavowed both the antenuptial and post-nuptial agreements, claiming both were entered into improperly. When Former Husband failed to attend a pretrial conference and to comply with prior court orders, she filed a motion for contempt, requesting — among other relief — that the court strike his pleadings. The trial court granted that request, striking the entirety of Former Husband’s pleadings. In this posture, the case proceeded to trial. What makes this case unusual is that, in the final judgment of dissolution of marriage, the trial court acknowledged that its decision to strike Former Husband’s pleadings constituted an abuse of discretion.

On appeal, Former Husband argues that the trial court erred in striking his pleadings and in setting aside both the antenuptial and postnuptial agreements. Despite the trial court’s own acknowledgment that it abused its discretion, Former Wife continues to defend the propriety of the order striking Former Husband’s pleadings.

That order was clearly deficient because it did not contain the required findings that Former Husband’s conduct was willful or deliberate. See Surf Tech Int'l, Inc. v. Rutter, 785 So.2d 1280, 1283 (Fla. 5th DCA 2001); see also Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990). Although the judge attempted to make amends in the final judgment by reinstating Former ' Husband’s pleadings, that was an insufficient cure.

Former Husband’s right to procedural due process had been violated. The Florida Constitution provides that “no person shall be deprived of life, liberty or property without due process of law.” Art. 1, § 9, Fla. Const. Procedural due process guarantees every person the right to fair and impartial treatment throughout the administration of justice. Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 960 (Fla.1991). It also guarantees a defendant fair notice and a meaningful opportunity to be heard before judgment is rendered. J.B. v. Fla. Dept. of Children & Family Servs., 768 So.2d 1060, 1066-68 (Fla.2000). Here, changing the rules after trial deprived Former Husband of any real opportunity to be heard. This lack of due process compels us to remand the case for a new trial.

Because the case needs to be retried, we also note that the trial court erred in two other respects. First, the court applied the wrong law; second, it failed to allocate certain monies.

Both parties agree that the antenuptial agreement contained a choice-of-law provision. Former Wife sought to set aside that agreement, but only on the ground that Former Husband failed to properly disclose his financial situation before they entered into the agreement.

When determining whether to apply Florida law or foreign law to a contract, a court must first apply Florida’s choice-of-law rules. In re Estate of Nicole Santos, 648 So.2d 277, 280 (Fla. 4th DCA 1995). Generally, Florida courts enforce contractual choice-of-law provisions unless enforcing the chosen forum’s law would contravene strong Florida public policy. See Mazzoni Farms, Inc. v. El DuPont De Nemours & Co., 761 So.2d 806, 311 (Fla. 2000); see also State Farm Mut. Auto. Ins. Co. v. Roach, 945 So.2d 1160, 1164-65 (Fla.2006); McNamara v. McNamara, 40 So.3d 78, 80 (Fla. 5th DCA 2010). The party seeking to avoid enforcement of the choice-of-law provision has the burden of demonstrating that the foreign law contravenes public policy. Mazzoni, 761 So.2d at 311.

Here, the trial court found that “[Former Husband] did not meet his burden under the choice of law doctrine” to apply Scottish law, and went on to apply Florida law. This was error. In finding that Former Husband “did not meet his burden,” the trial court improperly shifted the burden of proof.

Lastly, Former Wife acknowledges that Former Husband gave her $70,000 subsequent to signing the postnuptial agreement. The parties disputed whether that payment was made pursuant to that agreement. In any event, the final judgment did not provide for any allocation of those monies.

REVERSED and REMANDED.

SAWAYA and WALLIS, JJ., concur.

      . During the pendency of the proceedings, Former Husband was working in thé Middle East.

      . Notably, in her motion to set aside the ante-nuptial agreement, Former Wife did not allege that Scottish law contravened Florida public policy.

      . The court’s reliance on Gustafson v. Jensen, 515 So.2d 1298 (Fla. 3d DCA 1987), was misplaced, as Gustafson did not involve a choice-of-law provision. See Mazzoni, 761 So.2d at 311-12.


text:
    William A. BISHOP, individually and as personal representative of the estate of Donna L. Bishop, his deceased wife (“Bishop”), Anzualda Brothers, Inc., and Jesus E. Marino Castillo, individually and as an employee of Anzualda Brothers, Inc., (collectively, “Anzualda Brothers”), Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee.
    No. 1D14-0278.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2015.

      Stephen A. Marino, Jr. and Rochelle N. Wimbush of Ver Ploeg & Lumpkin, Miami; James W. Gustafson, Jr. of Searcy, Den-ney, Scarola, Tallahassee; and Cameron M. Kennedy of Corry & Kennedy, Tallahassee, for Appellants.
    Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for Appellee.
   PER CURIAM.

Undertaking communication, conduct, and steps in defense of an underlying action, heavily dependent upon the circumstances, may rise to a coverage by estoppel claim. This appeal involves an allegation an insurer made statements and undertook actions which led a business owner to believe she had insurance coverage for the underlying action; all this despite the insurer’s knowledge of facts which would have permitted it to deny coverage.

“When an insurance company assumes the defense of an action, with knowledge, actual or presumed, of facts which would have permitted it to deny coverage, it may be estopped from subsequently raising the defense of non-coverage.” Doe ex rel. Doe v. Allstate Ins. Co., 653 So.2d 371, 373 (Fla.1995) (quoting Cigarette Racing Team, Inc. v. Parliament Ins. Co., 395 So.2d 1238, 1239-40 (Fla. 4th DCA 1981)) (internal quotation marks omitted). This “coverage' by estoppel” claim requires a representation of material fact, reasonable reliance, and a detrimental change in position (i.e., prejudice) as a result of the reliance. See Tome v. State Farm Fire & Cas. Co., 125 So.3d 864, 867 (Fla. 4th DCA 2013); Phoenix Ins. Co. v. McQueen, 286 So.2d 570, 572 (Fla. 1st DCA 1973). Prejudice and whether the promisee’s reliance was reasonable are generally questions for the trier of fact. Cigarette Racing Team, Inc., 395 So.2d at 1239-40; see also Romo v. Amedex Ins. Co., 930 So.2d 643, 652-53 (Fla. 3d DCA 2006) (citing Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168 (Fla. 4th DCA 1994)); FCCI Ins. Co. v. Cayce’s Excavation, Inc., 901 So.2d 248, 251 (Fla. 2d DCA 2005).

Here, we do not pass on the strength of the business owner’s claims regarding the insurer’s conduct and actions or what the business owner believed afterwards. That is for the trier of fact to determine. We write only to confirm the cause of action exists, such a claim does not sound in bad faith, and here it was for the trier of fact to determine the ultimate weight to give the insurer’s conduct versus the reasonableness of the business owner’s reliance. We REVERSE the court’s grant of summary judgment in favor of the insurer as to this count and REMAND for further proceedings.

LEWIS, C.J., CLARK, and MARSTILLER, JJ., concur.

      . We note that in the initial and reply briefs counsel for the appellants signed a ‘'certificate of compliance” affirming he "hereby certifies that this Brief is in the Times New Roman 14-point font and is therefore in compliance with Florida Rules of Appellate Procedure 9.210(2).” The brief is unquestionably neither in Times New Roman 14-point font nor Courier New 12-point font, and therefore not in compliance with Rule 9.210(2). Rules of procedure are applicable to everyone. The rule gave counsel two options-he selected neither.

      . As to all the other counts, we affirm the court’s determinations without comment.


author: KHOUZAM, Judge.

text:
    Jay GOLDSTEIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2598.
    District Court of Appeal of Florida, Second Distinct.
    Jan. 7, 2015.

      Frank de la Grana, Tampa; and Kenneth S. Siegle, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   KHOUZAM, Judge.

On January 20, 2012, Jay Goldstein was charged with one hundred counts of possession of child pornography. Though his Criminal Punishment Code Scoresheet indicated a lowest permissible sentence of 1342.5 months (111.875 years) in prison, the State offered Goldstein an open plea that would cap his sentence at ten years and that allowed for an unlimited amount of supervision. But the court rejected the plea negotiations. Goldstein entered an open plea, and the court sentenced him to fifteen years on count one and five years on the remaining counts, to run consecutively to the sentence on count one but concurrent to each other. These sentences are a significant downward departure. .

Goldstein appeals, relying on this court’s decision in Barnhill v. State, 140 So.3d 1055 (Fla. 2d DCA 2014), to argue that the trial judge’s explanation of the sentence revealed that he committed fundamental error by applying a general policy and lumping Goldstein with all other similarly charged defendants regardless of the evidence about his individual case presented at sentencing. Ultimately, Goldstein seeks resentencing before a different judge, which may or may not result in a shorter overall sentence for him. We conclude that Goldstein is entitled to the relief he requests. As we will discuss below, explanations at sentencing can lend legitimacy to the court’s decisions and foster a public confidence in our judicial system. But the problem in this case, much like in Barn-hill, is that the trial judge had established a general policy — personal to himself and at odds with the law of Florida — that caused him to sentence Goldstein, not for the crimes he had committed and for his circumstances at the time of sentencing, but rather for the crimes the judge feared Goldstein might commit in the future based on the nature of the crimes for which he was convicted.

I. BACKGROUND

The State offered Goldstein a plea that would have capped his sentence at ten years. Goldstein had been collecting child pornography via the internet since 2007, but there was no evidence that he had used the internet to meet children or, most importantly, that he had ever had any sexual contact with any child. Indeed, Goldstein had taken a polygraph examination that indicated that he had never inappropriately touched a child. In offering the sentencing cap, the State had also considered the psychological evaluation prepared by Dr. Imhof, who had concluded as follows:

Available information indicates Mr. Goldstein is a low risk to commit future sexual offenses, either a contact or pornography offense. Additionally, Mr. Goldstein presents without antisocial orientation, significant problems with general or sexual self-management, or substance use problems and is participating in mental health services and has a positive and supportive social system in the community, all of which suggest a reduced risk to commit sexual offenses in the future. It is further noted that Mr. Goldstein has been in the community for approximately eight months since his arrest and there is no indication he has engaged in any inappropriate sexual behavior or accessed child pornography via the internet. As research involving samples of generic sexual offenders has indicated risk for future sexual offenses is reduced by approximately half between five and ten years post release, Mr. Goldstein’s already low risk will reach negligible levels at approximately eight years. Although diagnostic issues are unclear for Mr. Goldstein, mental health treatment is indicated given his excessive use of pornography, some of which involved minors, and the interference it has caused in his performance at home and work. Given Mr. Goldstein’s relatively low risk for future sexual offenses and amenability for treatment, he presents with minimal risk should he be returned to the community with supervision and supportive mental health treatment.

Goldstein was receiving treatment as rec-. ommended in the psychological evaluation.

The court rejected the plea negotiations, and Goldstein entered an open guilty plea on April 28, 2013. After accepting the plea, the judge took testimony to consider before imposing sentence. Goldstein’s attorney presented numerous letters, video recorded statements, and testimony from people who knew Goldstein in an effort to show that he was not a danger to the community. As a diving coach, Goldstein was constantly interacting with minors, and yet there was no evidence whatsoever that he ever acted inappropriately toward them. To the contrary, the evidence affirmatively suggested that no such contact had ever taken or would ever take place. Several of Goldstein’s diving students, who had trained with him for years, stated that they had never felt uncomfortable around him. They trusted him, describing him not only as a friend but as a member of their families and a role model. One young woman stated that Goldstein was “an inspiration.” Another attested, “Jay is one of my best friends. He still is.”

Several parents asserted that even in light of Goldstein’s conviction they would still want him to coach their children. They described him as a wonderful coach and friend. One mother wrote that the worst thing about this case was that her granddaughter would not be able to train with Goldstein as her daughter had. The father of two girls who were Goldstein’s students testified that Goldstein was a leader, that he had the utmost respect for Goldstein, and that his girls and society would be missing out if Goldstein were put in prison. Another father of two children Goldstein had coached testified that his children had been taught to look out for inappropriate behavior by coaches, and they told him that Goldstein had never done anything inappropriate. The man stated, “frankly, knowing my kids are the single most important thing in my life, given the opportunity I would have no apprehension to allow Jay to be their coach again.”

Goldstein’s neighbors, including two young men who had grown up living next door to him, testified that they were close to Goldstein and that nothing inappropriate had ever happened between them. One of the young men described Goldstein as “the brother I never had.” The young men’s mothers also testified they allowed their children to spend time with Goldstein and nothing inappropriate ever happened. One explained, “I believe in my heart that Jay would never, ever do anything inappropriate to a child.” The other mother testified that she had five children who grew up living next door to Goldstein and that he had been a mentor to her boys when her husband left. She stated, “to this moment I would allow my children to be with him. He has been nothing but wonderful to my children. We are all human.” She also noted that she is vigilant about child abuse because she owns a child care center.

Many of Goldstein’s friends and colleagues, who had known him for years and even decades, testified as well. They maintained that Goldstein was not a threat. They noted the numerous opportunities that Goldstein had working with children and that there was never any indication that he had acted inappropriately in any way. For example, a fellow swim coach testified that as an educator, coach, and Boy Scout leader, he had been trained to look for child predation and he had never seen such behavior with Goldstein during the fifteen years that they had known each other. A friend who had been close to Goldstein for about thirty years described him as “the kind of person that I want to be.”

Members of Goldstein’s family also testified. Goldstein’s former brother-in-law described Goldstein as “an outstanding individual” and a “pillar of the community.” Several witnesses mentioned that Gold-stein had been taking care of his ill mother for years and that recently he had been visiting her on a daily basis. Goldstein’s cousin, a physician, stated that Goldstein would often contact him with questions about how to best care for his mother. “It’s incredible, I can tell you,” the cousin stated, “[b]etter than any nurse I’ve ... worked with.” All of the witnesses asked the court to show mercy on Goldstein.

Goldstein’s attorney also made reference to two studies prepared for the United States Sentencing Commission that show how child pornographers who do not commit contact offenses are far less likely to commit any contact offenses in the future. He argued that the studies support a claim that online offenders have a lower recidivism rate, suggesting that Goldstein would be unlikely to reoffend.

On the other side, the State presented evidence that a search of Goldstein’s computers uncovered 272 images of child pornography. Forty-eight “known notable child victims as characterized by the National Center for Missing and Exploited Children” were depicted. There were approximately eight videos located on Gold-stein’s computers. Various other images of child pornography were on discs categorized and labeled with titles such as PTHC, standing for “Preteen Hard Core.” Some showed young children between the ages of eight and fifteen. All showed children engaging in almost any imaginable sex act. An investigating detective testified that Goldstein admitted downloading the child pornography and that he knew what it was.

In imposing sentence, the trial judge made the following statements:

I can tell you that I could probably count on one hand the number of persons that come in front of me charged with child pornography that have criminal histories. Almost every single one has never been involved in the criminal system. It’s [a] first-time offense.
Someone mentioned that Mr. Gold-stein lived in — or in his circle of friends, that no one knew about this. And I’m sure- that you didn’t because there’s a dark side in child pornographers!’] lives that no one knows about, except other child pornographers. Those are the ones that know.
And I would be just like you, had I not had the experience of being involved with child pornography, of knowing someone for 30 years or all my life because I’m related to them, or 10 or 15 years thinking I can’t believe that this happened, that’s not the person that I know, but what you don’t also realize is that these — for the most part men, live two lives. They live the life that we all know. And then they live the dark side that no one knows other than other child pornographers that they are sharing their files with....
Some people have told me that “it’s just pictures, Judge.” It’s not just pictures. In order to make that picture or to make that movie, you have to rape a child. There’s no other way of getting around it. You have to rape a child.
I’m in trial in this division every other week.... In the years that I’ve been trying these cases, there has not been one time when I didn’t have at least two people, I have had as many as ten or twelve, approach the bench, some crying, saying that they had been abused as a child and could not hear this particular case. I have had more than that approach the bench and tell me that they have had a loved one sexually abused.
I guess the last thing that I want to say is child pornography perpetuates the sexual abuse of children. It does. And although you may not have had someone tell you this before, but I know from my experience in sitting in this courtroom day-in and day-out, that these men in their dark side are sexually aroused, sexually interested in children. And a child’s innocence, it’s not like stealing a car or someone breaks in your house and steals your television or your jewelry, you can replace that. You cannot replace a child’s innocence. Once that’s taken away from a child, it’s taken away forever.
We — we are taught to respect adults. We’re taught to respect our elders. An adult man can be rebuked by an adult woman. It’s very, very, very hard for a child to stop an adult or a man from grooming them or getting into a situation where the child is vulnerable and now because of his sexual interest he takes advantage of that child.
We also know that we don’t have years and years of studies and competent data to accurately predict whether or not a person who is a child pornographer is going to reoffend by actually touching a child because the phenomenon, according to experts, is still too new. And we have had studies that say the risk assessments are so low, and then that same study has gone back to those individuals who have then said we didn’t tell the truth or we then went out and we actually did contact children when we told you that we had not.
There are other studies that say that the risk assessments are higher than what other studies say and they have come back and revised those studies as well.
The fact of the matter is, the phenomenon is so new to. the scientific society, that we don’t know what the honest to good true risk assessment is for a child pornographer going out and touching a child, even though we do know that they are sexually attracted to children. That’s a given.
I’m not willing to take that risk. It’s real easy for me to put a child — a car thief on probation, say don’t do it again. He goes out and steals a car, okay. I’m not — I’m not willing to take the risk that at some point in time Mr. Gold-stein, or others that have a proclivity for child pornography, bondage, eight year olds, that’s not at some point in time going to offend by actually sexually abusing a child.

(Emphasis added.)

II. ANALYSIS

The judge’s statements in this case are remarkably similar — in fact, almost identical — to the statements that this court found fundamentally erroneous in Barnhill v. State, 140 So.Sd 1055 (Fla. 2d DCA 2014). In Barnhill, the same trial judge rejected the defendant’s request for a downward departure sentence based on his general concern in child pornography cases. In sentencing Barnhill, the judge made the following statements:

I just want you to know that I struggle on these cases, not just Mr. Barnhill’s, but these types of cases every single day of my life since I’ve been put into this division, and there’s not one day that goes by, not one, that I don’t think about these cases.
Mr. Barnhill is one of many individuals that come in front of me that have absolutely no criminal record whatsoever, none, that live a dark side, if you will, that no one knows about. Family members don’t know about, teachers don’t know about, business associates don’t know about[.] [T]he only people that know about it is Mr. Barnhill and other persons that have like interests that he would choose to know about his interests as well.
This child pornography phenomenon, if you will, is becoming an epidemic. It’s bigger, I think, than what any of us in this, room or in law enforcement circles absolutely realize....
And the psychologists in their book ... list it as a fantasy [.] [Pjedophiles are real. They’re real. They may have some twisted fantasy about observing prepubescent children in bondage situations and being raped and having sexual intercourse and oral intercourse, being sodomized, but even though that might be a fantasy of watching those things on a computer while they stimulate themselves, it’s real when they touch. And when they touch, that child is damaged forever, forever.
And maybe it’s what some people don’t even — don’t even think about. It’s just a picture. It’s not just a picture. This is a child who has actually been manipulated either by fear or because a person is so much older and can control them and grooms them to go into these sexual scenarios, and even though you get some of these pictures where you get a six year old [sic] or seven year old [sic] and it appears to be, and I’ve seen them, I’ve seen them in this courtroom, where they appear in the video or on the pictures to be enjoying the act, they’ve been groomed.
That first time they are — they were raped and they are being raped each time as it happens. That’s what scares me. That is what scares me in these types of cases.
But I guess first and foremost, I want you to know that there is not one thing that the [S]tate of Florida can, has or ever will be able to say that is going to cause me to sentence someone that I don’t believe the sentence is appropriate, for whatever that is worth.
... I honestly believe that this is an epidemic of greater proportions than any of us in this room ... ever realized.
And there is no magic answer as to whether you’re going to reoffend, or you’re not going to reoffend in this particular case, whether you’re going to touch or you’re not going to touch....
And some people say, well, you’ve taken my life away or you’ve taken my husband’s life away or you’ve taken my father’s life away, but in these types of cases, if you touch, you take the life away of a child[.] [A]nd I cannot tell you how many times I have seen in this courtroom where we have attempted to pick a jury[,] the numbers of men and women, adult men and women, some of which are older than I am [who] have stood at the bench in front of me with tears rolling down their faces because they were sexually abused as a child.

Id. at 1058-59 (some alteration in original).

In Barnhill, we held that the trial judge’s statements indicated that he was applying a general policy in child pornography cases and that the application of such a general policy amounted to fundamental error:

We recognize that these types of cases are disturbing by their very nature and that trial judges must deal with them on a regular basis. As a result, we are not unsympathetic to the difficulty that each trial judge must face when presiding over such eases. However, trial judges are required to rise above the disturbing nature of these and other crimes and to provide every defendant a fair opportunity to be heard by an impartial judge who will consider only the evidence presented to the court within that case.
... It is ... apparent that in considering Barnhill’s sentence, the trial judge lumped Barnhill with all other similarly charged defendants irrespective of the testimony that Barnhill presented at sentencing.
... [E]ven to the most casual observer, it could not be believed that Barnhill received a hearing in a dispassionate environment before a fair and impartial judge. Rather, the transcript reflects the trial judge here was deeply concerned not by the facts specific to Bam-hill’s case but by the general nature of the crimes involved and the potential for defendants charged with these types of crimes to progress into crimes involving “hands-on” contact with children. Thus the trial judge at least implied that he would not consider a downward departure in child pornography cases as a general policy.
We conclude that the application of such a general policy constitutes a due process violation resulting in fundamental error.

Id. at 1061 (emphasis added) (citations omitted).

By the same token, the statements made by the judge in the instant case reveal that he lumped Goldstein with all other similarly charged defendants and applied a general policy, regardless of the evidence presented at sentencing. As we read the trial court’s comments, the policy he explains is one of denying probation to all defendants convicted of possession of child pornography because science has not proven they will not become sexual predators in the future. It is true that the purpose of uniform sentencing laws is to create “general policies” for the sentencing of defendants, but here the judge applied a personalized general policy that was at odds with Florida law.

Additionally, in both Barnhill and the instant case, the judge apparently feared that the defendants would commit new criminal acts of abuse that they were never accused of committing and took this speculation into account when imposing sentence. As in Barnhill, this fear was not based on the evidence before the trial court as to this defendant. In a different context, this court has stated: “A sentencing court may not rely on ‘unsubstantiated allegations of misconduct or speculation that the defendant probably committed other crimes’ when it imposes sentence.” Craun v. State, 124 So.3d 1027, 1030 (Fla. 2d DCA 2013) (quoting Nusspickel v. State, 966 So.2d 441, 445 (Fla. 2d DCA 2007)); see also Martinez v. State, 123 So.3d 701, 704 (Fla. 1st DCA 2013) (“[A] sentence based on mere allegation or surmise violates the fundamental constitutional rights of the defendant.”). It seems even more evident to us that a court cannot rely on crimes it fears the defendant might possibly commit in the future simply because he has admitted the charged offenses. While protection of the public is clearly a proper consideration, the judge’s comments taken in the context of the evidence presented raise the concern that the court was applying generalized, personal concerns rather than considering the specific circumstances of this case.

However, we must emphasize that the holding in this case, much like the holding in Barnhill, is narrow. This opinion does not disturb trial judges’ wide discretion in sentencing criminal defendants. See Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009) (“A sentencing court has wide discretion regarding the factors it may consider when imposing a sentence.”); Stano v. State, 473 So.2d 1282, 1286 (Fla. 1985) (“A trial court’s discretion extends to determining what is relevant evidence at sentencing.”). A court has the discretion to reject a negotiated plea, to reject the testimony presented at sentencing hearings, and to impose departure sentences as permitted by law. The court’s discretion also encompasses providing explanations at sentencing to support the reasonableness and legitimacy of its decision to both the public and to the reviewing court. Although a trial court is often free to impose a sentence with no public explanation, a thoughtful explanation can foster a public confidence in our judicial system. Explaining to the public that possession of pornography is not a victimless crime, for example, is a completely appropriate role for the trial judge and for this court.

Likewise, we do not intend to suggest that trial judges cannot learn from experience or consider prior cases when seeking to impose a proper sentence. See In re Inquiry Concerning a Judge, J.Q.C. No. 77-16, 357 So.2d 172, 178 (Fla.1978) (“Every judicial officer is the sum of his past. When he dons his robe and ascends to the bench, he is not divested of the effects of his previous training, education and real life experiences. He takes his official office as a human being, not as a judicial robot.”); Nateman v. Greenbaum, 582 So.2d 643, 644 (Fla. 3d DCA 1991) (recognizing that judges are “expected to be influenced by real life experiences”). On the contrary, we recognize that all good judges attempt to improve their skills and sensitivities from their prior experience on the bench. So the fact that the trial judge in this case may have relied on his previous training, education, and experience in imposing sentence is not problematic in and of itself — indeed, judges can and should learn from experience in order to reach a just result.

The problem here is that the trial court expressly considered and relied upon its own generalized fears of greater future offenses for any person who possesses child pornography. Such fear is simply a factor that the court, as a matter of law, had no authority to use when exercising its wide discretion or drawing from personal experience. Accordingly, we conclude that the court fundamentally erred in relying on its generalized fears of greater future offenses for any similarly charged defendant and applying a general policy in sentencing Goldstein contrary to Florida law. We reverse Goldstein’s sentences and remand for sentencing before a different judge.

Judgment affirmed; sentences reversed; and remanded with instructions.

WALLACE, J„ and DAEAN, STEPHEN L., Associate Senior Judge, Concur.


author: LaROSE, Judge.

text:
    Diego PARAMO and D.M.P. Builders and Associates, Inc., a Florida corporation, Appellant, v. Vincent FLOYD and Vianne Floyd, Appellees.
    No. 2D14-350.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2015.
    Michael M. Brownlee of Brownstone, P.A., Winter Park, for Appellants.
    Brett David Fisher of The Boatman Law Firm, P.A., Naples, for Appellees.
   LaROSE, Judge.

Diego Paramo and D.M.P. Builders and Associates, Inc. (collectively, “Paramo”), appeal the final default judgment entered against them and in favor of Vincent and Vianne Floyd. The Floyds sued Paramo for civil theft in connection -with a project to expand and remodel their home. The trial court erroneously awarded the Floyds unliquidated damages without an eviden-tiary hearing. Accordingly, we reverse the default judgment as to damages and remand for an evidentiary hearing. We affirm as to all other issues without further comment.

A default admits all well-pleaded allegations of a complaint, including a plaintiffs entitlement to liquidated damages; but a default does not automatically entitle a plaintiff to unliquidated damages. Szucs v. Qualico Dev., Inc., 893 So.2d 708, 712 (Fla. 2d DCA 2005) (quoting Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 662-63 (Fla. 5th DCA 1983)). “Damages are liquidated when the proper amount to be awarded can be determined with exact-, ness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Bowman, 432 So.2d at 662. Damages are unliquidated, however, if testimony is required to ascertain facts upon which to base the exact sum. Medcom U.S.A., Inc. v. Ryder Homes & Groves Co., 847 So.2d 594, 596 (Fla. 2d DCA 2003). We consider claims for reasonable attorney’s fees, too, as unliquidated damages. Holiday Gulf Builders, Inc. v. Tahitian Gardens Condo., Inc., 443 So.2d 143, 145 (Fla. 2d DCA 1983).

The trial court awarded the Floyds damages of $237,000. This amount consisted of a $15,000 deposit, $30,000 for demolition work, and $34,000 for unaccounted-for building materials. Under the civil theft statute, section 772.11, Florida Statutes (2011-12), the trial court tripled the claimed actual damages for a total of $237,000.

Although the Floyds claimed what they perceived to be a liquidated damage amount, their saying so does not make it so. See Rich v. Spivey, 922 So.2d 326, 327 (Fla. 1st DCA 2006); United States Fire Ins. Co. v. C & C Beauty Sales, Inc., 674 So.2d 169, 172 (Fla. 3d DCA 1996) (“The fact that [plaintiff] alleged in its complaint that the value of the stolen inventory was a certain amount does not make the claim liquidated”). “If the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.... ” Rich, 922 So.2d at 328 (quoting Charles A. Wright, Arthur R. Miller, & Mary Kane, Federal Practice & Procedure Civil § 2688, at 58-59).

For example, the Floyds included in their damage calculation amounts paid for completed work. The Floyds must concede that Paramo finished the demolition work. Yet, they included $30,000 for demolition as a damage item. The $34,000 item for missing building materials appears to be based only on the Floyds’ estimation. This is not an exact calculation as required for liquidated damages. “Damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment.” Szucs, 893 So.2d. at 712 (quoting Bowman, 432 So.2d at 662-63). .

An evidentiary hearing is necessary to determine the amount of damages owed to the Floyds. We must reverse the damages award and remand to the trial court for further proceedings.

Affirmed in part, reversed- in part, and remanded.

KHOUZAM and SLEET, JJ., Concur.


author: LOGUE, J.

text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. In the Interest of J.B., a Minor Child, Respondent.
    No. 3D14-1272.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2015.
    Javier Ley-Soto, Chief Legal Counsel, and Leslie Hinds St-Surin, Assistant General Counsel, for petitioner.

      Baker & McKenzie LLP, and Angela Vigil, Attorney Ad Litem, for respondent Minor.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Florida Department of Children and Families appeals an order directing it to pay the travel costs of the pro bono Attorney Ad Litem to assist in the therapy of her client, a child in the custody of the Department and placed in a North Carolina residential treatment facility. We treat the appeal as a petition for writ of certiorari, grant the petition, and quash the order because it violates the doctrine of separation of powers.

FACTS

J.B. is a minor child in the custody of the Department. Based on the recommendation of J.B.’s psychiatrist, both the Guardian Ad Litem and the Department concluded that J.B. required mental health treatment in a residential treatment facility. They further determined that the Alexander Youth Network, a residential program in North Carolina, provided the therapeutic treatment that best suited J.B.’s needs. The Department and the Guardian Ad Litem moved the trial court to approve the placement. Based on the evidence submitted, the trial court agreed that the placement was in J.B.’s best interest. It ultimately entered an order which authorized the placement.

Afterwards, the pro bono Attorney Ad Litem filed a motion to require the Department to pay her travel costs to visit J.B. at the facility in North Carolina, arguing that personal visits were necessary to maintain a meaningful attorney-client relationship. The trial court denied the request to require the Department to pay travel costs that “are made to foster the attorney/client relationship.” Although not requested by the Attorney Ad Litem, the court ordered the Department to “fund any visits [by the pro bono Attorney Ad Litem] that are therapeutically recommended by the therapeutic staff of the Alexander Youth Network.” The Department appealed.

ANALYSIS

The issue presented is whether the trial court’s order violated the separation of powers doctrine by requiring the Department, an executive agency, to pay for the travel of the pro bono Attorney Ad Litem for the purpose of facilitating the minor child’s therapy. We have jurisdiction. See Fla. Dep’t of Children & Families v. Y.C., 82 So.3d 1139, 1141 n. 6 (Fla. 3d DCA 2012) (holding, in a similar case, that certiorari was the proper vehicle for review); Dep’t of Corrs. v. Harrison, 896 So.2d 868, 869 (Fla. 5th DCA 2005) (“[T]he Department of Children and Families has successfully sought certiorari review in cases where a trial court allegedly exceeded its judicial authority by encroaching on the powers of the executive branch by ordering it to take some action not permitted under the law.”).

Florida’s Constitution provides for the separation of powers between the three branches of state .government:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

Art. II, § 3, Fla. Const. Under this doctrine, “the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights.” Detournay v. City of Coral Gables, 127 So.3d 869, 873 (Fla. 3d DCA 2013) (quoting Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So.2d 912, 918 (Fla.1985)). “When a court interferes with an executive agency’s discretion in spending its appropriate[d] funds, it is encroaching on the powers of the agency.” Office of State Attorney for Eleventh Judicial Circuit v. Polites, 904 So.2d 527, 532 (Fla. 3d DCA 2005).

A court may order an executive department to spend funds when a statute or constitution authorizes a court to do so. Courts, however, have rejected the idea that there is a “doctrine of inherent judicial power” that allows a court to direct how an executive department exercises its discretion to spend funds appropriated to the department. Dep’t of Children & Families v. J.H., 831 So.2d 782, 783 (Fla. 4th DCA 2002) (holding, absent statutory authority, a trial court could not order the Department to pay for long-term therapy by a specific therapist and any and all necessary evaluations for the dependent child). Instead, courts have repeatedly held that “[t]he judicial branch may not either interfere with the legislative branch by requiring funds to be spent by an executive agency in a manner not authorized by statute, nor interfere with an executive agency’s discretion in the spending of appropriated funds.” Dep’t of Children & Families v. K.R., 946 So.2d 106, 107-08 (Fla. 5th DCA 2007) (emphasis added).

Accordingly, unless a statute or a constitution authorizes the court to do so, it is a violation of the doctrine of separation of powers for a court to direct an executive department on how to expend funds appropriated to the department. Turning to the instant case, because no statute authorized the trial court to order the Department to pay for the travel of the pro bono Attorney Ad Litem for the purpose of facilitating J.B.’s therapy, the order violates the doctrine of separation of powers.

The pro bono Attorney Ad Litem attempted to defend the trial court’s order by citing to general law regarding the need to foster attorney-client relationships in this context. That issue is not before us. The order under review excluded travel costs relating to attorney-client matters.

Petition granted; order quashed.

      . This court takes this opportunity to thank the Attorney Ad Litem, Angela Vigil, Esquire, for her professionalism in providing representation to J.B. on a pro bono basis. Her representation benefits the child, our community, and the courts, and exemplifies the ideals of service in our profession. By advocating the child's point of view, Ms. Vigil not only contributed an important viewpoint to aid the court’s deliberation, but also enabled the child to feel that her voice was heard, considered, and respected as part of the judicial process. The child's perception that she was treated with good faith is important, our Supreme Court has noted, because "a child who feels that he or she has been treated fairly in the course of the commitment proceedings will likely be more willing to accept hospitalization and treatment.” Amendment to the Rules of Juvenile Procedure, Fla. R. Juv. P. 8.350, 804 So.2d 1206, 1211 (Fla.2001).

      . See, e.g., Polites, 904 So.2d at 532 (holding the trial court violated the separation of powers doctrine when it ordered the Office of the State Attorney to pay for the costs of mental health experts evaluating the defendant); Hairison, 896 So.2d at 870 (holding the trial court violated the separation of powers doctrine when it ordered the Department of Corrections to pay for an interpreter for a defendant who was hearing impaired); Dep’t of Corr. v. Grubbs, 884 So.2d 1147, 1148 (Fla. 2d DCA 2004) (holding the trial court violated the separation of powers doctrine when it ordered the Department of Corrections to pay for a convicted sex offender’s treatment program); Dep’t of Children & Family Servs. v. Birchfield, 718 So.2d 202 (Fla. 4th DCA 1998) (reversing a trial court order that held the Department in contempt for failing to place the appellee in a specific program); Dep’t of Juvenile Justice v. C.M., 704 So.2d 1123, 1125 (Fla. 4th DCA 1998) ("[T]he court cannot direct a particular placement for a child and order the expenditure of funds for such placement by an executive agency.”); Dep’t of Health & Rehabilitative Servs. v. V.L., 583 So.2d 765, 767 (Fla. 5th DCA 1991) ("[I]t is not the judiciary’s role to revise legislative appropriations or to interfere with an agency’s discretionary budgetary decisions”).


author: ROTHENBERG, J.

text:
    ALLIED SHELVING & EQUIPMENT, INC., Appellant, v. NATIONAL DELI, LLC, Appellee.
    No. 3D14-311.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2015.

      Liam P. Kelly, for appellant.
    Shir Law Group, P.A., and Guy M. Shir and Patrick Dervishi, Boca Raton, for ap-pellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   ROTHENBERG, J.

Allied Shelving and Equipment, Inc. (“Allied Shelving”) appeals the trial court’s final judgment in favor of National Deli, LLC (“National Deli”) on National Deli’s breach of contract claim and against Allied Shelving on its counterclaims arising from the same contract. Because the issue presented is a factual one and no trial transcript has been provided, we affirm.

Allied Shelving contracted with National Deli to provide and install a pallet rack system, essentially a series of very large shelves, in National Deli’s warehouse. Both parties ended up dissatisfied after the deal was done, and each claimed that the other had materially breached the contract. The trial court found in National Deli’s favor on its breach of contract claims and against Allied Shelving on its breach of contract claims. The parties did not opt to have the trial proceedings transcribed, so no transcript has been provided to this Court. Allied Shelving’s primary contention on appeal is that the trial court erred by applying the common law of contracts rather than Article II of Florida’s Uniform Commercial Code (“UCC”).

Article II of the UCC applies only to transactions in goods, see § 672.102, Fla. Stat. (2011); it does not apply to contracts for services, which are governed by the common law. BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1328 (11th Cir.1998) (applying Florida law); Dionne v. Columbus Mills, Inc., 311 So.2d 681, 683 (Fla. 2d DCA 1975). “Goods” are statutorily defined as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (chapter 678) and things in action.” § 672.105(1), Fla. Stat. (2011). The term “services,” conversely, is not defined in the UCC, but generally refers to some sort of manual labor or personal utility rather than a physical object that has been sold or purchased. See BMC Indus., 160 F.3d at 1329-32 (discussing and analyzing various cases that have held a contract to be for either goods or services). If the provision of the pallet rack system is a transaction in goods, best described as the sale of shelving units as Allied Shelving argues, the UCC would apply, and the trial court erred. If, however, the contract for the installation of the pallet rack system is a contract for services, best described as the design, manufacture, and installation of those shelving units, then we must affirm.

Determining whether a contract is for goods or services, however, is not a completely binary choice. Many contracts, commonly referred to as “hybrids,” involve transactions for both goods and services. BMC Indus., 160 F.3d at 1329. Whether the UCC or the common law applies to a particular hybrid contract depends on “whether the[ ] predominant factor, the[ ] thrust, the[ ] purpose [of the contract], reasonably stated, is the rendition of service, with goods incidentally involved (e.g., contract with artist for painting) or is a transaction of sale, with labor incidentally involved (e.g., installation of a water heater in a bathroom).” Id. at 1330 (quoting Bonebrake v. Cox, 499 F.2d 951, 960 (8th Cir.1974) (footnotes omitted)). In such instances, the determination whether the “predominant factor” in the contract is for goods or for services is a factual inquiry unless the court can determine that the contract is exclusively for goods or services as a matter of law. Birwelco-Montenay, Inc. v. Infilco Degremont, Inc., 827 So.2d 255, 257 (Fla. 3d DCA 2001) (citing BMC Indus., 160 F..3d at 1331).

The contract in this case is clearly a hybrid contract involving goods (the sale of the shelving unit materials) as well as services (the manufacturing and installation of the shelving units). Based on the final order, it appears the trial court determined that the services portion of the contract was the predominant factor in the agreement. Without a trial transcript, we cannot find that the trial court reversibly erred when making this factual finding. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (“Without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so . as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”). Accordingly, we affirm the trial court’s order in all respects.

Affirmed.

      . Allied Shelving's remaining arguments on appeal either rely on the premise that the trial court should have applied the UCC or are wholly without merit. We accordingly reject them without further discussion.

      . The trial court did not make specific findings on these points. We can only infer this from the language of the order. And the contract governing this transaction was inexplicably not included in- the record.


author: STEVENSON, J.

text:
    Martin WIESENTHAL, Appellant, v. Yvonne L. WIESENTHAL, Appellee.
    Nos. 4D11-3501, 4D11-4400, 4D12-3515.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      See also 154 So.3d 488, 2015 WL 71854.
    Douglas R. Bell of the Law Offices of Bell & Bell, Fort Lauderdale, for appellant.
    Tracy Belinda Newmark and Natalie Suzanne Kay of The Newmark Law Firm, P.A., Fort Lauderdale, for appellee.
   STEVENSON, J.

In this consolidated appeal, the former husband challenges an order denying his petition for modification of alimony and child support (4D11-3501); an order finding him in contempt for failing to pay alimony and child support (4D11-4400); and the money judgment entered following his failure to pay the attorney’s fees awarded to the former wife in the order denying modification (4D12-3515). Having considered the issues raised, we affirm, without further comment, the trial court’s rulings denying modification of alimony, child support, and the former husband’s obligations concerning the children’s tuition. We agree, though, that the award of attorney’s fees to the former wife, the concurrent denial of the former husband’s request for fees, and the order holding the former husband in contempt for failing to pay the children’s tuition must be reversed due to insufficient findings. We write solely to address these latter issues.

Attorney’s Fees

In the August 2011 order denying the petition for modification of alimony, child support, and tuition obligations, the trial court ordered the former husband to pay $18,000 toward the former wife’s attorney’s fees and inherently denied the former husband’s request for attorney’s fees. It is clear that the trial court rejected the former husband’s claims of a failing business and wages of an amount insufficient to meet even his support obligations. Nonetheless, the order contains no factual findings regarding the parties’ respective incomes and no factual findings regarding need and ability to pay. The order simply states the former husband’s financial position is “much better” than the former wife’s. This is insufficient.

“A trial court cannot award attorney’s fees without making findings as to one spouse’s ability to pay fees and the other spouse’s need to have the fees paid.” Peterson v. DeLuca, 936 So.2d 752, 753 (Fla. 4th DCA 2006); see also Fichtel v. Fichtel, 141 So.3d 593, 596 (Fla. 4th DCA 2014) (recognizing factual findings are “critical” in awarding section 61.16 fees and absence of such findings hampers appellate review). The absence of such findings is generally fatal. Glass v. Glass, 49 So.3d 867 (Fla. 4th DCA 2010) (writing court was compelled to reverse fee award where order contained a finding that husband had ability to pay, but no finding of need on the part of wife). This is particularly true in the instant case.

The 2005 final judgment and a March 2009 order on petitions for modification put the former husband’s gross income at $158,254 and “at least $168,000,” respectively. These same orders attributed a gross income to the former wife of $25,000 and $68,000. By the time of the modification proceedings that gave rise to the fee award, the former husband was claiming his income had been reduced by approximately half and that the former wife now had a gross income in excess of $100,000. Under these circumstances, factual findings concerning the parties’ financial circumstances, need, and ability to pay were essential.

Contempt for Failure to Pay Tuition

After the former husband failed to pay the children’s school tuition as required by the August 2011 order, the trial court held him in civil contempt, setting the purge amount at $20,060.96 and providing for his incarceration upon the failure to pay such amount or make payment arrangements satisfactory to the school. The order makes no express findings regarding the former husband’s gross or net income. Rather, the factual findings regarding the former husband’s present ability to pay the $20,060.96 purge amount are limited to the following: the former husband has a minimum of $20,000 in business inventory, and he had paid $6,500 to his own attorney since entry of the August 2011 order. These findings are insufficient.

Where, as here, the court imposes a sanction and sets the conditions for purge of the contempt, the trial court’s order shall include “a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.” Fla. Fam. L.R.P. 12.615(e); see also Elliott v. Bradshaw, 59 So.3d 1182, 1184 (Fla. 4th DCA 2011) (“[Wjhere a party has refused to pay court-ordered support, the court must set a purge amount, and the contemnor must have the present ability to pay that amount to purge the contempt.”)- Courts have characterized the rule as requiring the trial court to “identify the source of payment for the purge amount.” Brennan v. Brennan, 122 So.3d 923, 927 (Fla. 4th DCA 2013) (citing Aburos v. Aburos, 34 So.3d 131, 135 (Fla. 3d DCA 2010)).

The sources cited by the trial court, i.e., the business’s inventory and the payment of $6,500 to the former husband’s attorney, do not support a finding that the former husband has the present ability to pay in excess of $20,000. The only evidence before the court reflected that the inventory was subject to substantial liens, and there was no evidence suggesting there was a ready market for the inventory or that its sale would generate $20,000. As for the $6,500 paid to the attorney, the evidence established that such amount was paid in the past from a loan, and there was no testimony indicating that additional funds were available.

Evidence during the proceedings that gave rise to the orders appealed established that the former husband had gifted half of his business to his new wife and that the new wife, who was employed as the children’s nanny during the marriage, was now drawing a substantial income from the business. Some of the findings in the orders appealed suggest the trial court believed the former husband had diverted income to his new wife so as to avoid his support obligations. We note that “[a] finding that a party divested himself of assets does not substitute for a finding of present ability to pay,” Elliott, 59 So.3d at 1186 (citing Apa v. Apa, 693 So.2d 702 (Fla. 4th DCA 1997)). “[Ejven a person who has willfully or negligently divested himself of the ability to pay money as ordered cannot be incarcerated for civil contempt when he does not then have the ability to purge himself.” Galligher v. Galligher, 643 So.2d 706, 707 (Fla. 4th DCA 1994) (citing Knowles v. Knowles, 522 So.2d 477 (Fla. 5th DCA 1988)) (emphasis added).

Conclusion

In sum, having considered all arguments raised, the order denying the former husband’s petition for modification of his alimony, child support, and private school tuition obligations is affirmed in all respects, save the award of $18,000 in attorney’s fees to the former wife. The matter of attorney’s fees is remanded to the trial court, with directions that the trial court reconsider the issue after making specific factual findings regarding the parties’ net incomes and financial circumstances. Our reversal of the attorney’s fee award necessitates reversal of the resulting money judgment entered against the former husband. Finally, we reverse the order holding the former husband in contempt. Such reversal does not preclude further proceedings on this issue. See Elliott, 59 So.3d at 1187 (reversing order holding husband in contempt as present ability to pay purge amount not supported by the evidence and noting reversal did not preclude further proceedings regarding husband’s present ability to pay).

Affirmed in Part; Reversed in Part; and Remanded.

MAY and LEVINE, JJ., concur.


text:
    Martin WIESENTHAL, Appellant, v. Yvonne L. WIESENTHAL, Appellee.
    No. 4D12-2807.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    See also 154 So.3d 484, 2015 WL 71944.
    Douglas R. Bell of the Law Offices of Bell & Bell, Fort Lauderdale, for appellant.
    No brief filed for appellee.
   STEVENSON, J.

In the instant appeal, the former husband challenges a June 2012 order holding him in contempt for failing to pay both alimony and $18,000 in attorney’s fees previously awarded to the former wife and requiring him to pay additional attorney’s fees to the former wife totaling $3,075. The former husband insists the June 2012 order of contempt must be reversed because the trial court’s findings that he has the present ability to pay and that his failure to pay was willful and intentional are not supported by competent substantial evidence and because the order is itself deficient for a variety of reasons. We reject all these arguments without further comment and affirm the June 2012 contempt order to the extent it is predicated upon the former husband’s failure to pay alimony. We are compelled, however, to reverse the contempt order to the extent it is predicated upon the failure to pay the $18,000 in attorney’s fees previously awarded and to the extent it awards additional attorney’s fees to the former wife.

The $18,000 attorney’s fee award underlying the June 2012 contempt was the subject of the companion appeal in consolidated case numbers 4D11-3501, 4D11-4400 and 4D12-3515. In that appeal, we reversed the fee award as it was not supported by the requisite factual findings regarding the parties’ respective financial circumstances and need and ability to pay. The reversal of the underlying fee award necessitates reversal of the June 2012 contempt order to the extent it was predicated upon the failure to pay such fees. See, e.g., Brennan v. Brennan, 122 So.3d 923, 927 (Fla. 4th DCA 2013) (“This court has previously found that where an award is improper and requires reversal, a finding of contempt based upon such award must also be reversed.”).

As for the $3,075 in additional fees awarded to the former wife, it suffers from the same deficiencies that required reversal of the $18,000 fee award — it is not supported by the required factual findings. See Peterson v. DeLuca, 936 So.2d 752, 753 (Fla. 4th DCA 2006) (“A trial court cannot award attorney’s fees without making findings as to one spouse’s ability to pay fees and the other spouse’s need to have the fees paid.”); see also Glass v. Glass, 49 So.3d 867 (Fla. 4th DCA 2010) (reversing fee award where order contained a finding that husband had the ability to pay, but no finding of need on the part of wife). The matter of the additional attorney’s fees is remanded to the trial court, with directions that the trial court reconsider the issue after making specific factual findings regarding the parties’ net incomes and financial circumstances and findings regarding both the ability to pay fees and the need thereof.

Affirmed in Part; Reversed in Part; and Remanded.

MAY and LEVINE, JJ., concur.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Darwin Anthony DAVIS and Alicia Davis, Respondent.
    No. 3D14-2703.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2015.
    Cole, Scott, & Kissane and Thomas E. Scott and Scott A. Cole and Daniel M. Schwarz, Miami, for petitioner.
    Ver Ploeg & Lumpkin and Stephen A. Marino, Jr. and Rochelle N. Wimbush, for respondent.
    Before SUAREZ, SALTER, and SCALES, JJ.
   PER CURIAM.

United Automobile Insurance Company petitions for a Writ of Certiorari to quash the Circuit Court’s October 31, 2014, Order on Defendant’s Objections to Plaintiffs Second Request for Production. We grant the Petition.

As indicated in Royal Caribbean Cruises, Ltd. v. Doe, 44 So.3d 230, 234 (Fla. 3d DCA 2010), Respondents are not entitled to financial information until the trial court determines whether they have properly stated a claim for punitive damages. No such determination has been made in this case. Indeed, no claim for punitive damages has even been filed. In addition, Petitioner’s financial information is not relevant to any disputed issues raised by any other claim made by Respondents in their Complaint and is therefore not discoverable at this time.

Petition granted.


author: DAMOORGIAN, C.J.

text:
    Denise NICHOLSON, Appellant, v. STONYBROOK APARTMENTS, LLC, d/b/a Summit Housing Partners, LLC, Appellee.
    No. 4D12-4462.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Michael D. Brown of Brown & Associates, P.A., Riviera Beach, for appellant.
    Daniel M. Schwarz and Scott A. Cole of Cole Scott & Kissane, P.A., Miami, for appellee Stonybrook Apartments, LLC.
   DAMOORGIAN, C.J.

Appellant, Denise Nicholson, appeals the trial court’s final judgment entered after a jury verdict in favor of Appellee, Stony-brook Apartments, LLC (the “Apartment Complex”). Appellant raises several issues on appeal, primarily challenging the trial court’s conclusion that her status as an alleged trespasser at the Apartment Complex affected the duty of care the Apartment Complex owed her. We reject Appellant’s arguments and affirm.

As an overview, Appellant was shot in the leg by a third-party while attending a party at the Apartment Complex’s common area. Appellant sued the Apartment Complex for negligence, alleging that “it failed to maintain its premises in a safe condition and [failed] to provide adequate security on the property, at and during the time of [Appellant’s] injury.” In its defense, the Apartment Complex alleged that its duties to Appellant were very limited as she was a trespasser at the time she was shot. Appellant moved to exclude any evidence regarding her status as a trespasser, arguing that her status to the land was irrelevant because her lawsuit was founded in ordinary negligence, not premises liability.

The trial court disagreed, ruling that Appellant’s status to the land was relevant and pertinent to the duty owed to her by the Apartment Complex. Accordingly, the court instructed the jury that it must determine whether Appellant was an invitee or a trespasser. Considering the evidence, which included testimony from the Apartment Complex’s former manager and a police officer that Appellant was repeatedly told she was not allowed at the Apartment Complex, the jury returned a defense verdict in which it found that Appellant was a trespasser at the time she was shot and that the Apartment Complex did not commit gross negligence.

On appeal, Appellant argues that the trial court erred when it allowed the Apartment Complex to introduce evidence regarding Appellant’s status as a trespasser and incorrectly included the question of whether Appellant was a trespasser on the verdict form. Appellant maintains that her status was irrelevant as her lawsuit was based on principles of ordinary negligence rather than premises liability. As this issue concerns a matter of law, we review the trial court’s determinations under the de novo standard of review. Cassoutt v. Cessna Aircraft Co., 742 So.2d 493, 495 (Fla. 1st DCA 1999).

a. Ordinary Negligence v. Premises Liability

In ordinary negligence cases, the defendant owes the plaintiff a duty of reasonable care, regardless of the relationship between the defendant and plaintiff. See Fla. E. Coast Ry. Co. v. Southeast Bank, N.A., 585 So.2d 314, 316 (Fla. 4th DCA 1991). However, in premises liability cases, the defendant’s duty to the plaintiff is dependent on the plaintiffs status to the land. Id. Section 768.075 of the Florida Statutes provides that “[a] person or organization owning or controlling an interest in real property ... is not liable for any civil damages for the death of or injury or damage to any discovered or undiscovered trespasser.... ” § 768.075(2), Fla. Stat. (2013). However,

To avoid liability to undiscovered trespassers, a person or organization owning or controlling an interest in real property must refrain from intentional misconduct that proximately causes injury to the undiscovered trespasser, but has no duty to warn of dangerous conditions. To avoid liability to discovered trespassers, a person or organization owning or controlling an interest in real property must refrain from gross negligence or intentional misconduct that proximately causes injury to the discovered trespasser, and must warn the trespasser of dangerous conditions that are known to the person or organization owning or controlling an interest in real property but that are not readily observable by others.

§ 768.075(3)(b), Fla. Stat. (2013). Put succinctly, in a premises liability case, the only duty a property owner owes to an undiscovered trespasser is to refrain from causing intentional harm, and the only duty it owes to a discovered or “known” trespasser is to refrain from gross negligence/intentional harm and to warn of known conditions that are not readily observable by others.

b. The Overlap

There are certain scenarios where a property owner may be liable to a trespasser who is injured on its property under ordinary negligence and, therefore, the injured person’s status as a trespasser is irrelevant. These scenarios arise when the trespasser is injured as a result of the landlord’s active conduct as opposed to a condition of the premises. Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967, 968 (Fla.1977). As we have explained:

Generally, the duty owed a trespasser with respect to hazardous conditions on the premises is to avoid willful and wanton injury to the person and, if the trespasser’s presence is known, to warn of dangerous conditions not open to ordinary observation. However, where the tort-feasor’s active negligent conduct, as opposed to a condition of the premises, is the claimed cause of injury in cases where the defendant knew, or constructively knew, of the trespasser’s presence, the measure of care owed is that imposed generally in determining ordinary negligence.

Fla. E. Coast Ry. Co., 585 So.2d at 316.

Case law examples of such active conduct by the landowner include:

• Operating a train in a negligent fashion, Id.;
• Operating a mechanical hydraulic lifting device in a negligent fashion, Maldonado, 351 So.2d at 968; and
• Starting a car after pouring gasoline in the carburetor, resulting in the car catching on fire, Hix v. Billen, 284 So.2d 209 (Fla.1973).

c. Does Negligent Security Implicate Premises Liability or Ordinary Negligence?

No Florida court has considered whether negligent security cases are governed under standards of premises liability or ordinary negligence. However, there is a substantial body of case law supporting the conclusion that negligent security cases fall under the umbrella of premises liability.

The strongest ease is Lane v. Estate of Morton, 687 So.2d 53 (Fla. 3d DCA 1997). There, the plaintiff was attacked by an unknown third-party while riding a recreational vehicle on private property owned by the defendant. Id. at 54. The plaintiff sued the property owner for negligent security, and the property owner moved for summary judgment on the grounds that it owed the plaintiff a very limited duty since he was a trespasser. Id. The trial court granted the property owner’s motion based on the plaintiffs status as a “known trespasser,” and the Third District affirmed. Id. Thus, Lane stands for the proposition that a cause of action by a plaintiff against a land-owner for negligent security is limited by the plaintiffs relationship to the land.

In Medina v. 187th Street Apartments, Ltd., 405 So.2d 485 (Fla. 3d DCA 1981), the plaintiff sued an apartment complex for, among other things, failing to provide adequate security after the plaintiff was attacked by a third-party in the complex’s parking lot. Id. at 485. At the close of the plaintiffs case, the trial court determined that the plaintiff was an invitee, but still granted a directed verdict in the defendant’s favor based on its determination that the attack was not foreseeable. Id. at 486. On appeal, the Third District reversed, holding that there were disputed issues of fact regarding previous criminal activities at the complex, thus making the issue of foreseeability a jury question. Id. In reversing, the court affirmed the trial court’s finding regarding the plaintiffs status as an invitee and the corresponding duty, thus implying that a plaintiffs status to the land is a necessary determination in a negligent security suit. Id; see also Barrio v. City of Miami Beach, 698 So.2d 1241, 1244 (Fla. 3d DCA 1997) (holding that duty owed by landowner to person injured by third-party criminal attack on property was dependent on the injured person’s relationship to the property).

Indeed, even the case cited by Appellant in support of her position suggests that the landowner’s duty in a negligent security case is dependent on the injured party’s relationship to the land. In Byers v. Radiant Group, LLC, 966 So.2d 506 (Fla. 2d DCA 2007), patrons of a gas station were severely injured after they got into an altercation with other patrons. Id. at 507. They sued the gas station for negligent security and the trial court granted summary judgment in favor of the gas station, finding that although the plaintiffs started off as invitees, once they instigated the altercation, they became trespassers. Id. at 508. Therefore, the trial court found that the gas station owed the plaintiffs a very limited duty, which it did not breach. Id. On appeal, the Second District reversed, but not because the court erroneously determined that the gas station’s duty was limited by its relationship with the plaintiffs. See id. Rather, the Second District held that whether the plaintiffs’ status changed from invitees to trespassers raised a question of fact, and accordingly, summary judgment was not appropriate. Id. at 510. Thus, Byers also stands for the proposition that a plaintiffs status to the land in a negligent security action matters.

Based on the foregoing, we take this opportunity to clarify that negligent security cases fall under the auspices of premises liability as opposed to ordinary negligence. In addition to the fact that there is case law supporting this conclusion, it also makes logical sense. Ordinary negligence involves active negligence— meaning the tort-feaser actually does something to harm the injured party, whereas premises liability involves passive negligence — meaning the tort-feaser’s failure to do something to its property resulted in harm to the injured party. See Hix, 284 So.2d at 210 (“There is a distinction to be noted between active, personal negligence on the part of a landowner and that negligence which is based upon a negligent condition of the premises.”). As negligent security' actions concern the landowner’s failure to keep the premises safe and secure from foreseeable criminal activity, it follows that they fall under the umbrella of premises liability as opposed to ordinary negligence.

Further, in cases where a landowner is held to standards of ordinary negligence pertaining to a trespasser’s injuries, the injuries have no real relationship to the premises. For example, in Hix, the car which caused injury to the plaintiff could have caused the same injuries if it was located somewhere else. The same with the train in Florida East Coast Railway Co. and the hydraulic lifting machine in Maldonado. In each of those cases, the landowner would have been just as liable had the injuries occurred off of their respective properties. Here, had Appellant been shot one block from the Apartment Complex, she would have no basis for suing the Apartment Complex. That her theory of liability is totally dependent on her being shot on the Apartment Complex’s land illustrates that her suit is founded on principles of premises liability, not ordinary negligence.

Accordingly, we hold that the trial court did not err in allowing the jury to consider Appellant’s status as a trespasser, and affirm its entry of final judgment in favor of the Apartment Complex following a jury verdict.

Affirmed.

CIKLIN and FORST, JJ, concur.

      . The Apartment Complex agreed to employ the slightly higher duty owed to a "discovered trespasser” as opposed to an "undiscovered trespasser,” which was reflected in the jury instruction.

      . Appellant also argues that the court erred in denying her motion for directed verdict because there was insufficient evidence establishing she was a trespasser and that the court should have also instructed the jury on the elements of criminal trespass. We reject both of these arguments without further discussion.

      . As noted by the Hix court: "[T]his action really has no relationship to defendant’s Premises; that it merely happened that the car was located there instead of on the curb or in a parking lot or elsewhere.” 284 So.2d at 210.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for New Century Home Equity Loan Trust Series 2005-C Asset Backed Pass Through Certificates, Appellant, v. Theresa BOGLIOLI a/k/a Theresa Brunetto, Appellee.
    No. 4D13-2323.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Elizabeth T. Frau and Christopher A. Ewbank of Ronald R. Wolfe & Associates, P.L., Tampa, for appellant.
    Michael C. Klasfeld of Michael C. Klas-feld, P.A., Pompano Beach, for appellee.
   PER CURIAM.

Appellant, Deutsche Bank, appeals the final judgment in favor of appellee, Theresa Boglioli, in a mortgage foreclosure action. Because appellant failed to present competent, substantial evidence at trial to prove it had standing at the time it filed the complaint, we affirm the final judgment.

Appellant filed with the trial court the original note bearing an undated, blank endorsement, an assignment of note bearing an undated, blank endorsement, and an assignment of mortgage executed after the date of the complaint for “value received” on a date prior to the filing of the complaint. At trial, appellant’s sole testifying witness was unable to testify as to when the note was endorsed, and failed to introduce a pooling and servicing agreement that she claimed was the method through which appellant acquired the assignment of note. The witness also acknowledged that the grantor of the assignments was in bankruptcy but did not know the specifics of those proceedings. At the conclusion of trial, the circuit court granted appellee’s motion for a directed verdict, entering final judgment in favor of appellee upon finding that the alleged assignments to appellant were “during the pendency of the Granter’s bankruptcy and therefore of no force or effect.” The record on appeal does not contain competent, substantial evidence regarding the bankruptcy proceedings to support the trial court’s ruling. However, the evidence at trial failed to demonstrate that appellant had standing to foreclose at the time it filed suit. See Klemencic v. U.S. Bank Nat’l Ass’n, 142 So.3d 983, 984 (Fla. 4th DCA 2014); Bristol v. Wells Fargo Bank, Nat’l Ass’n, 137 So.3d 1130, 1132 (Fla. 4th DCA 2014); Vidal v. Liquidation Props., Inc., 104 So.3d 1274, 1276-78 (Fla. 4th DCA 2013); Hall v. REO Asset Acquisitions, LLC, 84 So.3d 388 (Fla. 4th DCA 2012). Accordingly, we affirm the final judgment under the “tipsy coachman” doctrine based on appellant’s failure to demonstrate it had standing to foreclose at the time it filed the complaint.

Affirmed.

CIKLIN, GERBER and LEVINE, JJ., concur.

      . Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).


author: TAYLOR, J.

text:
    STATE of Florida, Appellant, v. J.C., a child, Appellee.
    No. 4D13-3258.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellee.
   TAYLOR, J.

The state appeals an order dismissing the delinquency charge against J.C. after the trial court granted his motion for discharge under the speedy trial rule. Counsel for J.C. has conceded error. We accept the concession of error and reverse, because the trial court erred by calculating the recapture window as a single fifteen-day period. See State v. S.A., 133 So.3d 506, 509 (Fla.2014).

J.C. was arrested on April 26, 2013, and was later charged by petition for delinquency with disruption of a school function. On July 29, 2013, J.C. filed a motion for discharge, arguing that the state had failed to bring him to an adjudicatory hearing within ninety days of his arrest, as required by the speedy trial rule. On August 5, 2013, the trial court conducted a “five-day hearing” and set the case for trial on August 14, 2013.

On August 14, 2013, the court held another hearing. The court noted that the case was set for trial that day. Defense counsel argued, however, that the case should be dismissed under the speedy trial rule because J.C. was not brought to trial within fifteen days of the date the motion for discharge was filed. The prosecutor responded that the trial date was within ten days from the five-day hearing.

Relying upon our district’s case law in effect at the time of the hearing, the trial court ruled that the speedy trial rule in juvenile cases provided for a single fifteen-day recapture period. See State v. S.A., 96 So.3d 1133 (Fla. 4th DCA 2012), quashed, 133 So.3d 506 (Fla.2014). The court thus granted the defendant’s motion for discharge, as the trial date was set the sixteenth day after the motion for discharge and was beyond the fifteen-day recapture period. The trial court then dismissed the case. This appeal by the state followed.

On appeal, the state contends that the trial court erred in granting the motion to discharge because the court did not follow the procedure in the speedy trial rule. The rule requires a five-day hearing on the notice of expiration and then a ten-day period in which to bring the juvenile to trial. The state maintains that it brought J.C. to trial on the ninth day after the hearing on the notice of expiration, which was within the speedy trial recapture time.

The interpretation of the procedural rules governing the right to a speedy trial is a question of law subject to de novo review. State v. Nelson, 26 So.3d 570, 573-74 (Fla.2010).

Florida Rule of Juvenile Procedure 8.090(m)(3) states:

No later than 5 days from the date of the filing of a motion for discharge, the court shall hold a hearing on the motion and, unless the court finds that one of the reasons set forth in subdivision (d) exists, shall order that the respondent be brought to trial within 10 days. If the respondent is not brought to trial within the 10-day period through no fault of the respondent, the respondent shall be forever discharged from the crime.

Recently, the Florida Supreme Court held that “[t]he speedy trial rule plainly provides for a recapture window that is comprised of up to 5 days for the hearing followed by 10 days for the trial; it never mentions a 15-day period.” State v. S.A., 133 So.3d 506, 509 (Fla.2014). In so ruling, the supreme court quashed our decision in State v. S.A., 96 So.3d 1133 (Fla. 4th DCA 2012), which held that the recapture window should be construed as a single fifteen-day time period. S.A., 133 So.3d at 507-09. The supreme court explained that “under the computation of time rule, intervening weekends and legal holidays are excluded in calculating the deadline for the 5-day hearing.” Id. at 509. Thus, where the state complies with the recapture window’s two separate time periods, the defendant is not entitled to a discharge even if the trial occurs more than fifteen days after the defendant filed a motion for discharge. Id.

Here, the motion for discharge was filed on July 29, 2013. The five-day hearing was held on Monday, August 5, 2013. The five-day hearing was timely, as the intervening weekend must be excluded in calculating the deadline. The trial was then timely set for August 14, 2013, which was within ten days of the five-day hearing. Therefore, because the state complied with the recapture window’s two separate time periods, J.C. was not entitled to a discharge. This is true even though the trial was set more than fifteen days from the date J.C. filed the motion for discharge.

Accordingly, we reverse the trial court’s order dismissing the case and remand for further proceedings.

Reversed and Remanded.

WARNER and KLINGENSMITH, JJ„ concur.


author: MAY, J.

text:
    Thomas C. D’ALESSANDRO, Jr., and Bernadette D’Alessandro, Appellants, v. FIDELITY FEDERAL BANK & TRUST and PNC Bank, National Association, Appellees.
    No. 4D13-3387.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Thomas C. D’Alessandro, Jr., and Bernadette D’Alessandro, Tequesta, pro se.
    Stephen J. Simmons of Mombach, Boyle, Hardin & Simmons, P.A., Fort Lauder-dale, for appellee.
   MAY, J.

Homeowners appeal the dismissal of their complaint to quiet title with prejudice. They argue the trial court erred in dismissing their original complaint with prejudice, without an opportunity to amend.

We agree and reverse.

The homeowners filed' a complaint to quiet title against Fidelity Federal Bank & Trust, now known as PNC Bank, National Association (“the bank”), and attached the mortgages to it. They alleged that although the bank recorded the two mortgages evidencing the bank lent money to them, the bank had no interest in their property because it had failed to prove that it lent the money. The homeowners also alleged they made numerous written demands to the bank requesting proof of payment, and for the bank to remove, satisfy, and release the mortgages. The bank failed to respond to those demands. The homeowners asserted that the mortgages represented a cloud on the title.

A few months later, the bank filed a separate foreclosure action on the same mortgages that are the subject of the quiet title action. The bank then moved to dismiss the quiet title action. The bank argued that the homeowners failed to state a cause of action because the complaint failed to allege facts to support a right to quiet title on the subject property. Specifically, the bank argued the homeowners failed to allege a cloud on the title.

The homeowners objected to the motion to dismiss and moved for leave to amend the complaint. The trial court dismissed the complaint and orally denied their request to amend. The court subsequently entered an order of dismissal with prejudice.

In that order, the trial court indicated that the complaint’s allegations were wholly insufficient to state a cause of action, and were devoid of any legal theory to support the relief requested. The court also indicated that the dismissal was without prejudice to the homeowners filing affirmative defenses and discovery requests in the now pending foreclosure action.

The homeowners requested, and the trial court denied, reconsideration. They now appeal the dismissal with prejudice.

The issue on appeal is a simple one: Does a plaintiff have the right to amend a complaint once before the court dismisses an original complaint with prejudice? The answer is also a simple one: Yes.

To state a cause of action to quiet title, the homeowners needed to allege that (1) they had title to the subject property; (2) a cloud on the title existed; and (3) that the cloud was invalid. Stark v. Frayer, 67 So.2d 237, 239 (Fla.1953). Here, the homeowners failed to allege that the bank’s mortgage was invalid. Further, the mortgages attached to the complaint completely negated any allegation that the mortgages were invalid. The trial court correctly dismissed the complaint for failure to state a cause of action.

The error came in denying the homeowners the opportunity to amend. Rule 1.190(a) of the Florida Rules of Civil Procedure permits the amendment of a pleading “once as a matter of course at any time before a responsive pleading is served.” Fla. R. Civ. P. 1.190(a). “A judge’s discretion to deny amendment of a complaint arises only after the defendant files an answer or if the plaintiff already has exercised the right to amend once.” Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla.2005) (emphasis added).

For this reason, we are compelled to reverse arid remand. See also Unrue v. Wells Fargo Bank, N.A., — So.3d -, 2014 WL 4648205, 39 Fla. L. Weekly D2023 (Fla. 5th DCA Sept. 19, 2014).

Reversed and Remanded.

GROSS and CIKLIN, JJ., concur.

      . PNC Bank is the successor by merger to National City Bank, which is successor by merger to Fidelity Federal Bank & Trust.


author: May, J.

text:
    Margaret A. ANGLINPHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-409.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

A defendant appeals an order revoking her probation and consequent sentence. She argues the trial court erred in revoking her probation based solely on a noncriminal traffic violation. We agree and reverse.

The defendant was placed on probation for ten years after having been found guilty of embezzlement. The court ordered her to pay $488,000 in restitution. Her probation officer filed a violation of probation. The amended violation of probation alleged five counts related to the defendant’s failure to pay restitution and other costs, three counts concerning traffic violations, and one count of failure to disclose contact with law enforcement to her probation officer.

The transcript from the final violation of probation hearing reveals that the defendant admitted to a non-criminal citation for driving while license suspended (“DWLS”) and failing to report contact with law enforcement to her probation officer. This admission came after a lengthy discussion among defense counsel, the prosecutor, and the court regarding which allegations would be admitted in exchange for dismissal of other counts, and a hearing on the restitution and other failure to pay allegations.

The testimony concerning restitution revealed that the defendant found the means to pay $80,000 in private school tuition for her daughter, but made only a few payments totaling less than $500 for restitution. The trial court could have violated the defendant on this allegation, but did not. The court found the defendant’s failure to pay monetary obligations non-willful.

Having dismissed counts seven through nine, the court accepted the defendant’s admission on count six only, and revoked her probation. The trial court then sentenced her to the minimum of 25.5 months in Florida State Prison.

The defendant now argues the trial court erred in revoking her probation based solely on a non-criminal traffic infraction. The State responds that the defendant knew that any violation of the law would lead to a revocation of probation based on the written terms of probation and that the non-criminal traffic infraction was a violation of the law.

We have previously held that probation may not be revoked based on “a noncriminal traffic violation absent a special condition of probation proscribing such conduct.” Walker v. State, 120 So.3d 96, 98 (Fla. 4th DCA 2013). That is precisely what occurred here. At one point, the defendant admitted not only the non-criminal DWLS, but also her failure to report contact with law enforcement to her probation officer. But, when the dust cleared, the only allegation the court relied upon, and for which she was sentenced, was a non-criminal traffic violation. This is insufficient to sustain a revocation of probation.

Reversed and Remanded.

GROSS and CIKLIN, JJ., concur.