author: PITTMAN, Judge.

text:
    THE BIRMINGHAM DERBY CLUB, INC. v. The CITY OF BIRMINGHAM et al.
    2120089.
    Court of Civil Appeals of Alabama.
    June 21, 2013.
    Donald E. Blankenship of Blankenship & Company, Birmingham, for appellant.
    Alton B. Parker, Jr., and Thomas S. Hiley of Spain & Gillon, LLC, Birmingham, for Clifford J. Balzli and Adam Balzli; and James D. Love, City of Birmingham Dep’t of Law, Birmingham, for appellee City of Birmingham.
   PITTMAN, Judge.

The Birmingham Derby Club, Inc. (“Derby Club”), an applicant for, among other things, a lounge retail liquor license and dance permits pertaining to a planned adult-entertainment establishment involving semi-nude dancing to be located on Derby Way in Birmingham, appeals from a summary judgment purporting to affirm the decision of the Birmingham City Council to deny approval of Derby Club’s applications. We dismiss the appeal in part and affirm in part.

The record reveals that Derby Club has leased, and owns an option to purchase, a parcel of real property located in an industrial park in the territorial limits of the City of Birmingham (“the City”) in close proximity to an interstate-highway exit. The parcel has, in the relatively recent past, hosted an adult-entertainment club known as “Sensations” at which semi-nude dancing has been offered; however, after 24 police incidents had been reported at the location between July 2008 and July 2010, the operators of that club suffered a revocation of their liquor license and went out of business. In August 2010, the City adopted an amendment to its zoning ordinance pertaining to “adult establishments” mandating, among other things, that no adult establishment be operated within 750 feet of “any property ... that contains a single family or two family detached dwelling, or multiple family dwelling.” The record reflects that that amended ordinance repealed a former version thereof barring operation of an adult establishment within 750 feet of a residential district.

In August 2011, well after the effective date of the amended zoning ordinance, Derby Club applied to the City for two dance permits for the property; pursuant to the authority conferred upon the City as a Class 1 municipality in Ala.Code 1975, § 28-1-6, Derby Club also sought municipal approval of its alcoholic-beverage-license application. The record reflects that the Liberty Highlands Neighborhood Association, which represents homeowners in the area of the proposed club, elected to oppose Derby Club’s efforts to obtain the requested dance permits and liquor license, and the owner of the majority of the lots in the industrial park, Clifford J. Bal-zli, amended the restrictive covenants applicable to the industrial park so as to prevent any lot in the park from being used as a nightclub or an adult-entertainment establishment. After the City’s public-safety committee had voted to recommend denial of Derby Club’s applications, the City’s governing body, the Birmingham City Council, held a public hearing on January 24, 2012, on three resolutions proposing to deny the applications submitted by Derby Club; at that hearing, Clifford Balzli, his son Adam Balzli, and a number of area residents spoke in opposition to the proposed club, with only Derby Club’s in-corporator and its counsel speaking in favor, and the three resolutions rejecting Derby Club’s applications were adopted without a dissenting vote.

On March 13, 2012, 49 days after the denial by the City of its applications, Derby Club filed a complaint in the Jefferson Circuit Court, asserting in its complaint that the action of the city council had been arbitrary and capricious and that “[t]he only remedy available to [it] for the denial of’ its applications was “by appeal to” the trial court. The City answered the complaint and averred that its action had been warranted by the substantive evidence presented; additionally, the Balzlis were permitted to intervene as parties in support of the City’s position. The City and the Balzlis moved for the entry of summary judgments in their favor, supported by, among other things, the record of the city-council hearing and the transcript of the deposition of the incorporator of Derby Club; the movants posited that the decision of the City to deny the applications submitted by Derby Club was reasonably justified given the restrictive covenants in force in the industrial park, the factors listed in § 28-l-6(a)(l)b., Ala. Code 1975, pertaining to denial of approval of liquor licenses in Class 1 municipalities (ie., in Birmingham), and the testimony offered at the public hearing. Derby Club filed a response in opposition to the motions, principally opposing the validity of the restrictive covenants as a basis for disapproval. The trial court entered a summary judgment in favor of the movants, prompting Derby Club to appeal.

Although no party has challenged this court’s appellate jurisdiction, the lack of subject-matter jurisdiction may not be waived by the parties, and it is an appellate court’s duty to consider lack of subject-matter jurisdiction ex mero motu. See MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 393 (Ala.2011). In this case, on March 13, 2012, Derby Club filed its complaint in the trial court appealing from the January 24, 2012, decision of the governing body of the City to deny Derby Club’s liquor-license application; however, Ala.Code 1975, § 28-l-6(a)(2), provides that “[a]ny proceeding to review the denial of approval of a [liquor] license application shall be commenced within 14 days of the action by the municipal governing body.” Thus, to the extent that Derby Club sought review of the City’s decision to deny Derby Club’s liquor-license application, it did not timely invoke the trial court’s subject-matter jurisdiction, and that aspect of the summary judgment purporting to uphold the City’s decision as to the liquor-license application was, therefore, void and will not support an appeal to this court. See, e.g., Boswell v. Lowery, 107 So.3d 212, 215-16 (Ala.Civ.App.2012). We thus dismiss the appeal insofar as it concerns the denial of Derby Club’s liquor-license application.

In contrast to the provisions of § 28-l-6(a), which provide for a right of appeal with respect to. a decision of a Class 1 municipality to deny the issuance of a liquor license, the parties do not cite, and we are not aware of, any authority that would permit a circuit court to hear an appeal from a municipality’s denial of dance-permit applications. Instead, Alabama appellate courts have held that a petition for a writ of certiorari is the proper method for seeking judicial review of municipal decisions as to which no prescribed method of review exists. See Sanders v. City of Dothan, 642 So.2d 437, 440 (Ala.1994) (revocation of municipal business license). However, on such cer-tiorari review, the scope of review is limited solely to questions of law and does not extend to review of the weight and preponderance of the evidence; if any legal evidence exists to support the decision under review, ie., if any evidence will justify the decision based upon a legitimate (if not always a preferred) inference from the facts shown, that evidence is conclusive on the reviewing court. See id.

The Birmingham City Code provides that the city council of the City, in acting on an application for a Division I dance permit, shall consider any evidence or testimony offered by any person concerned and the recommendation of the appropriate committee (Birmingham City Code, § 12 — 3—13(b)); as to Division II dance-permit applications, the city council similarly “renderfs] a decision to grant or deny the permit” after having considered “all the evidence and information presented at” a hearing thereon (Birmingham City Code, § 12-3-25.1). Here; as we have noted, a public hearing was held on the applications submitted by Derby Club. At that hearing, the city council heard statements from, among other persons, owners of residences located within 750 feet of the proposed adult establishment who noted the adverse effects on traffic and parking that had resulted during the two-year operation of the former adult establishment on the subject premises and their concerns that similar problems would result if Derby Club’s applications were to be granted. In addition, the city council heard statements from the Balzlis, who stated that no business was open at the interstate-highway exit, that the subject property had been zoned for light industrial use and had been sold for the purpose of being used as a tire store, that the Balzlis had been assured upon the annexation of their property into the corporate limits of the City that the City would protect against bad development, and that the use of the property as an adult establishment would set a bad precedent for the prospects of future development at the exit. Further, the city council was made aware that 449 signa-toes had been affixed to petitions seeking denial of the applications and that another business establishment operated by the in-corporator of Derby Club and located in another part of Birmingham had experienced well over 60 reported police incidents. Given the existence of legal evidence to support the decision of the City to deny the requested dance permits and the applicable standard governing certiorari review by the judiciary of the decisions of the City in acting on dance-permit applications, we agree with the trial court’s implicit conclusion that no genuine issue of material fact existed and that the City and the Balzlis were entitled to judgments as a matter of law.

Based upon the foregoing facts and authorities, the appeal is dismissed as it pertains to the City’s decision to deny a liquor license to Derby Club; the summary judgment is otherwise affirmed. The motion of the Balzlis to dismiss the appeal as to them, stemming from their omission as appellees from the initial notice of appeal filed by Derby Club, is denied as moot in light of our disposition on the merits.

APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ., concur.

      . Alabama courts, by statute, take judicial notice of the ordinances of Class 1 municipalities. See Ala.Code 1975, § 11-45-11.


source: Caselaw Access Project

license: Public Domain

text:
    James Edward JONES v. Carolyn Demetriess JONES.
    2110921.
    Court of Civil Appeals of Alabama.
    June 21, 2013.

      Christina L. Dixon, Huntsville, for appellant.
    Jonathan W. Pippin, Hunstville, for ap-pellee.
   PITTMAN, Judge.

James Edward Jones (“the father”) appeals from a judgment in a postdivorce proceeding regarding postminority educational expenses. We affirm.

In December 2007, the Madison Circuit Court (“the trial court”) entered a judgment (“the divorce judgment”) divorcing the father and Carolyn Demetriess Jones (“the mother”). The divorce judgment contained a provision (“the college-education provision”) requiring the parties, subject to certain specified limitations and conditions, to pay for the college education of the parties’ 19-year-old daughter (“the daughter”), who had entered Howard University’s School of Communications in August 2007. After both parties filed Rule 59, Ala. R. Civ. P., motions, the trial court entered an order clarifying the college-education provision in February 2008.

As clarified by the February 2008 order, the college-education provision provided that, for all semesters after the fall 2007 semester, the father was required to pay two-thirds of an amount (“the net college expense”) calculated by adding the total tuition, room and board, required fees, and book expenses that would be incurred by a full-time, in-state student at the University of Alabama in Tuscaloosa (“the University of Alabama”) and by subtracting from that sum the amount of all grants, scholarships, and stipends awarded to the daughter that neither she nor the parties had to repay. The college-education provision further provided that, for all semesters after the fall 2007 semester, the mother was required to pay one-third of the net college expense. The parties’ obligations to pay them respective shares of the net college expense for all semesters after the fall 2007 semester were subject to several conditions, only one of which is material to this appeal. That condition provided that the parties’ obligations to pay their respective shares of the net college expense would terminate upon the daughter’s “ceasing to be a full-time student (as defined by the school or university attended).” For the fall 2007 semester, which the daughter had already completed, the college-education provision required the father to pay $6,660, which was approximately one-half of the total college expenses in the amount of $13,318 that the University of Alabama estimated that one of its full-time, in-state students would incur for the 2007-2008 academic year. The college-education provision stated that the mother was not required to pay a share of the daughter’s college expenses for the fall 2007 semester because the mother was not then employed.

Subsequent to February 2008, the parties were involved in a postdivorce proceeding that resulted in the trial court’s entering a judgment on March 20, 2009. In pertinent part, that judgment stated:

“7. At such time as the [mother] shall present to the [father] receipts or cancelled checks showing payment of college expenses owed to Howard University on behalf of [the daughter] for the Spring Semester of 2008, for the school year 2008-2009, and for subsequent school years at Howard University, pursuant to the previous orders of the Court, the [father] shall promptly pay his portion due for the same, being two-thirds of the same, up to and not exceeding the sum of $6,660.00 per semester.”

An order later entered by the trial court on November 4, 2009 (“the November 4, 2009, order”), indicates that the father timely filed a Rule 59 motion challenging the March 20, 2009, judgment on April 20, 2009; however, that Rule 59 motion is not in the record on appeal. On July 20, 2009, the last day of the 90-day period during which Rule 59.1, Ala. R. Civ. P., allowed the trial court to rule on the father’s Rule 59 motion, the trial court entered an order pursuant to Rule 59.1 (“the Rule 59.1 order”) memorializing the parties’ consent to extend the 90-day period for it to rule on the father’s Rule 59 motion by 45 days. Although the Rule 59.1 order itself is not in the record on appeal, the trial court recited the text of that order on the record at trial in the underlying action. According to the trial court’s recitation, the Rule 59.1 order stated:

“This matter came before the Court on a Motion and express consent of the [father] and the [mother] to extend the time for the Court to rule on a post-trial Motion and a Motion to set hearing.
“The post-trial motion that was filed on April 20[, 2009,] shall remain pending in the trial Court for an additional forty-five days from the expiration of the ninety days.”

The last day of that 45-day extension was September 3, 2009, and the trial court did not enter an order ruling on the father’s Rule 59 motion on or before that date. However, well after the expiration of that 45-day extension, the trial court entered the November 4, 2009, order, which stated:

“The [father] filed his Motion to -Alter or Amend, seeking to correct a typographical or clerical error contained in this Court’s Judgment dated March 20, 2009. The father’s motion sought to correct that Judgment to state accurately the [father’s] yearly obligation to provide financial support to his daughter’s efforts to obtain a college education.
“The Court finds that the Motion to Alter or Amend is due to be granted.
“The Court modifies and corrects paragraph number[ ] 7 of the Judgment rendered, on March 20, 2009, to state that the [father’s] obligation to help provide his daughter with a college education will not exceed the sum of $8,923.00 per school year. The [father’s] obligation is to pay two-thirds of the yearly cost of obtaining a college education, up to and not exceeding the sum of $8,923.00 per year.
“All other matters contained within the previous Judgment of the Court shall remain in full force and effect.”

In 2011, the father sued the mother, alleging that the daughter had ceased being a full-time student in the fall of 2009 and seeking a judgment declaring that he was not obligated to pay a share of the net college expense for the fall 2009 semester or any period ' thereafter. The father’s action was assigned to a different trial judge than the one who had presided in the divorce action and the first postdivorce action involving the parties. Answering the father’s complaint, the mother denied that the daughter had ceased being a full-time student in the fall of 2009. The mother also asserted a counterclaim alleging that the father had failed to pay most of his share of the net college expense and seeking a judgment (1) determining the amount of the arrearage the father owed and (2) finding the father in contempt. The father answered the counterclaim with a general denial.

Following a bench trial at which it received evidence ore tenus, the trial court entered a judgment (1) finding that the daughter had entered Howard University at the beginning of the fall 2007 semester and had continuously attended Howard University until she graduated upon the conclusion of the spring 2011 semester; (2) finding that the daughter had been a full-time student throughout the period she attended Howard University; (3) determining that the trial court had lacked jurisdiction to enter the November 4, 2009, order and that, therefore, the November 4, 2009, order was void and the father’s share of the net college expense was not limited to $8,923 per year; (4) finding that the father’s failure to pay his share of the net college expense, after subtracting amounts the mother owed the father for judgments unrelated to the daughter’s college education, had resulted in a net arrearage in the amount of $34,726.21; (5) entering a judgment in favor of the mother in the amount of $34,726.21; and (6) denying all other claims of the parties. The father timely filed a Rule 59 motion. However, before the trial court had entered a ruling regarding the father’s Rule 59 motion and before the expiration of the 90-day period allowed by Rule 59.1 for the trial court to rule on the father’s Rule 59 motion, the father filed a notice of appeal, which was held in abeyance pursuant to Rule 4(a)(5), Ala. R.App. P., pending the disposition of his Rule 59 motion. The notice of appeal subsequently became effective when the trial court did not rule on the father’s Rule 59 motion within the 90-day period allowed by Rule 59.1.

Because the trial court received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

The father first argues that the daughter ceased being a full-time student during the fall 2009 semester and that, therefore, the trial erred insofar as it determined that he owed a share of the net college expense for the fall 2009 semester and all subsequent semesters. The father bases this argument on the condition in the college-education provision providing that the parties’ obligation to pay their respective shares of the net college expense would terminate upon the daughter’s “ceasing to be a full-time student (as defined by the school or university attended).” The father argues that the daughter ceased being a full-time student as defined by Howard University during the fall 2009 semester because, he says, Howard University defined a full-time student as a student who was taking courses that were worth at least 14 semester hours of academic credit (“credit hours”) and the 2 courses the daughter completed during the fall 2009 semester were worth only 6 credit hours.

It is undisputed that, at the beginning of the fall 2009 semester, the daughter enrolled in 6 courses and that those 6 courses were worth a total of more than 14 credit hours. It is also undisputed that, a week before final examinations that semester, the daughter withdrew from four of those courses and that the two courses she completed that semester were worth a total of only six credit hours. According to the father, although the daughter was a full-time student at the beginning of the fall 2009 semester, she became a part-time student when she reduced her course load to courses worth a total of only six credit hours.

In order to prove Howard University’s definition of a full-time student, the father introduced a tuition schedule used by Howard University (“the schedule”). The schedule indicates that a student in the School of Communications, the school in which the daughter was enrolled, was charged the tuition applicable to a full-time student if the student enrolled in courses worth a total of 14 or more credit hours and that a student in that school was charged the tuition applicable to a part-time student if the student enrolled in courses worth a total of fewer than 14 credit hours. Thus, the schedule indicates that Howard University’s reason for classifying a student as full-time or part-time was to determine the amount of the tuition it would charge the student and that Howard University classified a student as full-time or part-time based on whether, at the beginning of the semester, the student enrolled in courses worth a total of 14 or more credit hours. The schedule contains no indication that, once Howard University had classified a student as a full-time student at the beginning of a semester based on the student’s enrolling in courses worth a total of 14 or more credit hours, it subsequently changed the student’s classification from that of a full-time student to that of a part-time student if, later during the semester, the student reduced his or her course load to courses worth a total of fewer than 14 credit hours. Thus, the trial court could reasonably have inferred from the schedule that, once Howard University classified the daughter as a full-time student at the beginning of the fall 2009 semester based on her enrolling in courses worth a total of more than 14 credit hours, it did not subsequently change her classification from that of a full-time student to that of a part-time student because, later that semester, she reduced her course load to courses worth a total of fewer than 14 credit hours. Consequently, the trial court’s finding that the daughter was a full-time student throughout the period she attended Howard University is supported by substantial evidence, and, because that finding is supported by substantial evidence, we cannot hold that it is erroneous. See Allsopp v. Bolding, 86 So.3d 952, 959 (Ala.2011) (“ ‘Under the ore tenus standard of review, we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court’s findings.’ ” (quoting Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 889, 393 (Ala.1990))).

The father also argues that the trial court erred in determining that it had lacked jurisdiction to enter the November 4, 2009, order and that, because that order was void, the father’s share of the net college expense was not limited to $8,923 per year. A trial court loses jurisdiction to rule on a Rule 59 motion if it does not rule on it within the 90-day period allowed by Rule 59.1 or an extension of that period properly effected in accordance with Rule 59.1. See, e.g., Warhurst v. Warhurst, 64 So.3d 664, 665-66 (Ala.Civ.App.2010). After a trial court loses jurisdiction to rule on a Rule 59 motion, any ruling it purports to enter on such a motion is void. See, e.g., Warhurst, 64 So.3d at 666. It is undisputed that the trial court did not rule on the father’s Rule 59 motion challenging the March 20, 2009, judgment within the 90-day period allowed by Rule 59.1 or the 45-day extension of that period effected in accordance with Rule 59.1. Consequently, the trial court did not have jurisdiction to rule on the father’s Rule 59 motion when it entered the November 4, 2009, order. However, the father argues that the November 4, 2009, order should be treated as an order correcting a mere clerical error pursuant to Rule 60(a), Ala. R. Civ. P., and that, therefore, the trial court had jurisdiction to enter it.

A trial court may, pursuant to Rule 60(a), correct clerical errors in its orders or judgments at any time. In pertinent part, Rule 60(a) provides: “Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party....” (Emphasis added.) The father bases his argument that Rule 60(a) applies to the November 4, 2009, order solely upon the statement in that order describing the father’s Rule 59 motion as seeking to correct a “typographical or clerical error” in the March 20, 2009, judgment. Despite that description of the father’s Rule 59 motion, however, the November 4, 2009, order does not expressly state that a clerical or mechanical error caused the March 20, 2009, judgment to provide that the father’s share of the net college expense was limited to $6,660 per semester instead of $8,923 per year. In Pierce v. American General Finance, Inc., 991 So.2d 212, 216-17 (Ala.2008), the supreme court stated:

“ ““ “Chief Justice Torbert explained the proper application of Rule 60(a) in his special concurrence in Ex parte Continental Oil Co., 370 So.2d 953, 955-56 (Ala.1979):
“ ‘ “ ‘Although there is no precise delineation in the cases construing Rule 60(a) of the [Alabama Rules of Civil Procedure] or its federal counterpart as to what constitutes a “clerical mistake or error arising from oversight or omission,” generally it can be said that the rule allows the correction of errors of a ministerial nature in order to reflect what was actually intended at the time of entry of the order. The rule contemplates the type of error associated with mistakes in transcription, alteration, or omission of any papers and documents — a mistake mechanical in nature which does not involve a legal decision or judgment. In re Merry Queen Transfer Corp., 266 F.Supp. 605 (E.D.N.Y.1967)....
(( l U l (( »
Corrections involving an exercise of judicial discretion or judgment modifying or enlarging a judgment or order are beyond the purview of Rule 60(a) and should properly be effected under Rule 59(e) or 60(b). “Thus a motion under Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.” Wright & Miller & Kane, Federal Practice & Procedure § 2854, at 149 (1973). This court has stated:
“ ““ “The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in the place of the one it did erroneously render, nor to supply non-action by the court, however erroneous the judgment may have been.”
“ ‘ “ ‘Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 278, 28 So. 640, 641 (1900).
“ ‘ “ ‘Since a correction pursuant to Rule 60(a) may be made at any time and on the trial court’s initiative, the rule should be cautiously applied to preserve the integrity of final judgments. Otherwise, the finality of a judgment would only be illusory since the possibility would exist of substitution of a new judgment for the original one at a later date. Therefore, it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned. See Ex parte ACK Radio Supply of Georgia, 283 Ala. 630, 219 So.2d 880 (1969); Busby v. Pierson, 272 Ala. 59, 128 So.2d 516 (1961); Tom-brello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947). Stated differently, the fact of mistake or error must be supported by the record of the proceedings. See Harris v. Harris, 256 Ala. 192, 54 So.2d 291 (1951).’ ” ’ “[Ex parte Brown ], 963 So.2d [604,] at 607-08 [ (Ala.2007) ] (emphasis added) (quoting [Higgins v.] Higgins, 952 So.2d [1144,] at 1147-48 [ (Ala.Civ.App. 2006) ]).”

As noted by the supreme court in Pierce, supra,‘ “ ‘it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned.’ ” ’ ” In the present case, there is nothing in the record indicating that the trial court originally intended to limit the father’s share of the net college expense to $8,923 per year rather than $6,660 per semester and that its providing for the latter instead of the former in the March 20, 2009, judgment resulted from a clerical, ministerial, or mechanical error. In the absence of such an indication in the record, the November 4, 2009, order constituted a purported modification of the March 20, 2009, judgment pursuant to Rule 59 rather than the correction of a clerical error pursuant to Rule 60(a). See Pierce, supra. However, because the trial court had lost jurisdiction to modify the March 20, 2009, judgment pursuant to Rule 59 before it entered the November 4, 2009, order, that order was void. See Warhurst, supra. Accordingly, the trial court did not err in determining that it had lacked jurisdiction to enter the November 4, 2009, order and that, because that order was void, the father’s share of the net college expense was not limited to $8,923 per year. Therefore, we affirm the judgment of the trial court.

The father’s request for the award of an attorney’s fee on appeal is denied.

AFFIRMED.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ., concur.

      . A Rule 59 motion must be filed not later than 30 days after the entry of the judgment. See Rules 59(b) and (e). Although the 30th day after the entry of the March 20, 2009, judgment was April 19, 2009, that day was a Sunday. Consequently, Rule 6(a), Ala. R. Civ. P., extended the 30-day period for the father to file his Rule 59 motion until the end of the next business day, which was Monday, April 20, 2009.

      . The 90th day after the filing of the father’s Rule 59 motion was July 19, 2009; however, because July 19, 2009, was a Sunday, Rule 6(a), Ala. R. Civ. P., extended the 90-day period until the end of the next business day, which was Monday, July 20, 2009.


author: PER CURIAM.

text:
    Edward K. WERDELL, Petitioner, v. Michael D. CREWS, etc., Respondent. Edward K. Werdell, Petitioner, v. Michael D. Crews, etc., Respondent.
    Nos. SC12-1528, SC12-1640.
    Supreme Court of Florida.
    July 11, 2013.
    Rehearing Denied Feb. 27, 2014.
    Edward Werdell, pro se, Raiford, FL, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner Edward K. Werdell, an inmate in state custody, filed petitions for writ of habeas corpus in the above-styled cases. In 2003, Werdell was convicted of committing offenses in Pinellas County and was sentenced to terms of imprisonment. Over the years, Werdell has filed numerous nonmeritorious pleadings and requests for relief with the Second District Court of Appeal, and in 2009, the district court entered an order barring him from any future pro se filings pertaining to his nine criminal cases. See Werdell v. State, 16 So.3d 875, 876 (Fla. 2d DCA 2009).

Similarly, since Werdell’s convictions and sentences became final he has initiated forty-two proceedings pertaining to his criminal convictions in this Court. In none of Werdell’s cases that have been before this Court has any relief been afforded to him. His petitions in the instant cases were denied as procedurally barred on October 29, 2012, and he was ordered to show cause why he should not be barred from filing in this Court any future pro se pleadings, motions, or other requests for relief pertaining to his criminal convictions. He was also ordered to show cause why the Court should not determine that the petitions filed in these cases are frivolous pleadings filed by a state prisoner, under section 944.279, Florida Statutes (2012) (stating a prisoner who is found by a court to have brought a frivolous claim or proceeding is subject to disciplinary procedures). Werdell did not file a response to the order to show cause in either case.

Accordingly, we now exercise the inherent power of this Court to protect itself from abuse of the judicial process and bar Werdell from any future pro se filings related to his criminal convictions. We further conclude that Werdell’s petitions in these cases are frivolous proceedings initiated by a prisoner, under section 944.279, Florida Statutes (2012). The Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Edward K. Werdell pertaining to Pinellas County circuit court case numbers 02-04399-CF, 02-07159-CF, 03-02914-CF, 03-09410-CF, 03-10735-CF, 03-12407-CF, 03-13875-CF, 03-18719-CF, and 03-18738-CF, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Wer-dell’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith. Furthermore, since we have found the petitions in these cases to.be frivolous, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2012) to forward a certified copy of this opinion to the Department of Corrections’ institution or facility where Werdell is incarcerated.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

      . Werdell's filing history in this Court is as follows: Werdell v. State, 103 So.3d 144 (Fla.2012) (mandamus petition denied) (No. SC12-708); Werdell v. Fla. Dep't of Con., 103 So.3d 144 (Fla.2012) (mandamus petition denied) (No. SC12-706); Werdell v. Fla. Dep’t of Corr., 103 So.3d 144 (Fla.2012) (mandamus petition denied) (No. SC12-690); Werdell v.

        State, 74 So.3d 1085 (Fla.2011) (mandamus petition denied) (No. SC11-1242); Werdell v. State, 77 So.3d 648 (Fla.2011) (review dismissed) (No. SC11-2252); Werdell v. Buss, 64 So.3d 680 (Fla.2011) (habeas corpus petition denied) (No. SC11-372); Werdell v. State, 30 So.3d 494 (Fla.2010) (review denied) (No. SC09-1532); Werdell v. State, 1 So.3d 174 (Fla.2009) (mandamus petition denied) (No. SC08-1803); Werdell v. State, 2 So.3d 983 (Fla.2008) (review denied) (No. SC08-2092); Werdell v. State, 994 So.2d 1106 (Fla.2008) (review dismissed) (No. SC08-1997); Werdell v. State, 994 So.2d 1106 (Fla.2008) (mandamus petition denied) (No. SC08-1556); Werdell v. State, 994 So.2d 307 (Fla.2008) (review dismissed) (No. SC08-1852); Werdell v. State, 996 So.2d 215 (Fla.2008) (review dismissed) (No. SC08-1430); Werdell v. State, 988 So.2d 1094 (Fla.2008) (review dismissed) (No. SC08-1395); Werdell v. State, 988 So.2d 1094 (Fla.2008) (review dismissed) (No. SC08-1394); Werdell v. State, 988 So.2d 1094 (Fla. 2008) (review dismissed) (No. SC08-1393); Werdell v. State, 988 So.2d 1094 (Fla.2008) (review dismissed) (No. SC08-1388); Werdell v. State, 992 So.2d 821 (Fla.2008) (review denied) (No. SC07-1489); Werdell v. State, 985 So.2d 1093 (Fla.2008) (all writs petition dismissed) (No. SC08-1086); Werdell v. State, 983 So.2d 1156 (Fla.2008) (review dismissed) (No. SC08-787); Werdell v. State, 983 So.2d 1155 (Fla.2008) (review dismissed) (No. SC08-761); Werdell v. State, 985 So.2d 1093 (Fla.2008) (mandamus petition denied) (No. SC07-2128); Werdell v. State, 965 So.2d 123 (Fla.2007) (review dismissed); Werdell v. State, 961 So.2d 934 (Fla.2007) (review dismissed) (No. SC07-367); Werdell v. State, No. SC07-946 (Fla. May 30, 2007) (notice of appeal transferred); Werdell v. State, 958 So.2d 922 (Fla.2007) (review dismissed); Werdell v. State, No. SC07-223 (Fla. Apr. 2, 2007) (mandamus petition transferred); Werdell v. State, 952 So.2d 1193 (Fla.2007) (review dismissed) (No. SC07-335); Werdell v. State, 952 So.2d 1193 (Fla.2007) (review denied) (No. SC06-1544); Werdell v. State, 950 So.2d 415 (Fla.2007) (review dismissed) (No. SC06-2412); Werdell v. State, 948 So.2d 760 (Fla.2007) (review dismissed) (No. SC06-2518); Werdell v. State, 946 So.2d 1072 (Fla.2006) (review denied) (No. SC06-1549); Werdell v. State, 944 So.2d 989 (Fla.2006) (review dismissed) (No. SC06-2215); Werdell v. State, 944 So.2d 989 (Fla.2006) (review dismissed) (No. SC06-2216); Werdell v. State, 942 So.2d 414 (Fla.2006) (mandamus petition denied) (No. SC06-1759); Werdell v. State, 937 So.2d 123 (Fla.2006) (review dismissed) (No. SC06-1406); Werdell v. State, 923 So.2d 1165 (Fla.2005) (mandamus petition denied) (No. SC05-380); Werdell v. State, 912 So.2d 1219 (Fla.2005) (review denied) (No. SC05-561); Werdell v. Crosby, 912 So.2d 1219 (Fla.2005) (review denied) (No. SC05-592); Werdell v. State, 912 So.2d 1219 (Fla.2005) (review dismissed) (No. SC05-1609).

      . In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for abusing the scarce judicial resources of this Court. See, e.g., McCutcheon v. State, 117 So.3d 769, (Fla.2013); James v. Tucker, 75 So.3d 231 (Fla.2011); Johnson v. Rundle, 59 So.3d 1080 (Fla.2011); Steele v. State, 14 So.3d 221 (Fla.2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008).


author: PER CURIAM. LABARGA, J.,

text:
    FLORIDA BOARD OF BAR EXAMINERS RE QUESTION AS TO WHETHER UNDOCUMENTED IMMIGRANTS ARE ELIGIBLE FOR ADMISSION TO THE FLORIDA BAR.
    No. SC11-2568.
    Supreme Court of Florida.
    March 6, 2014.
    Alan H. Aronson, Chair, Michele A. Ga-vagni, Executive Director, and Robert G. Blythe, General Counsel, Florida Board of Bar Examiners, Tallahassee, FL; James J. Dean and Robert J. Telfer III of Messer Caparello, P.A., Tallahassee, FL, for Petitioner.
    Talbot D’Alemberte and Patsy Palmer of D’Alemberte & Palmer, PLLC, Tallahassee, FL, for Respondent.
    Terence S. Coonan, Executive Director, and Wendi Adelson, Counsel, Tallahassee, FL, for Amicus Curiae Florida State University Center for Advancement of Human Rights.
    Cheryl Little and Lana Chiariello, Miami, FL, for Amicus Curiae Americans for Immigrant Justice.
    Martha W. Barnett, Tallahassee, FL; William Reece Smith, Jr. of Carlton Fields, Tampa, Florida; and Stephen N. Zack of Boies Schiller & Flexner, Miami, FL, for Amici Curiae Past Presidents of the American Bar Association.
    Amy R. Pedersen of the Mexican American Legal Defense and Educational Fund, Washington, DC; and Cecilia M. Olavarria of the Law Offices of Cecilia M. Olavarria, PA, Miami, FL, for Amicus Curiae Dream Bar Association.
    Stuart F. Delery, Acting Assistant Attorney General, and Mark B. Stern and Daniel Tenny, Attorneys, United States Department of Justice, Washington, DC, for Amicus Curiae The United States of America.
   PER CURIAM.

The Florida Board of Bar Examiners (“Board”) has filed a petition requesting an advisory opinion to provide it guidance in determining the eligibility for admission to The Florida Bar of a current applicant, who is an unauthorized immigrant, and future similarly situated applicants. The Board has presented the following question: Are undocumented immigrants eligible for admission to The Florida Bar? We have jurisdiction. See art. V, § 15, Fla. Const.

The Board states that in January 2008, it adopted a policy to require all applicants for admission to The Florida Bar to produce information pertaining to their citizenship or immigration status. The policy is based in part on a United States District Court decision, Godoy v. Office of Bar Admissions, No. 1:05-CV-0675-RWS, 2006 WL 2085318 (N.D.Ga. July 25, 2006). Consistent with the federal district court’s opinion, the Board requires applicants who are citizens of the United States to submit a certified copy of their birth certificate, or provide a photocopy of their certificate of naturalization or certificate of citizenship. Applicants who are not citizens are required to provide a photocopy of the immigration document that demonstrates their status.

Currently, the Board is considering an applicant (“Applicant”) for admission to The Florida Bar who is an unauthorized immigrant living in the United States. Applicant graduated from an American Bar Association accredited law school and passed The Florida Bar Examination. However, he is and continues to be an unauthorized immigrant. The Board asks the Court whether Applicant and any future similarly situated applicants are eligible for admission to The Florida Bar. As explained below, we answer the question by holding that unauthorized immigrants are ineligible for admission to The Florida Bar.

The United States Supreme Court recently reiterated in Arizona v. United States, — U.S. -, 132 S.Ct. 2492, 2498, 188 L.Ed.2d 351 (2012), that the “Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” The federal government has the “constitutional power to ‘establish an (sic) uniform Rule of Naturalization’ [resting on, in part,] its inherent, power as sovereign to control and conduct relations with foreign nations.” Id. A person’s status in this country as an authorized or unauthorized alien is determined solely by federal law. That determination addresses whether the person is lawfully present in the United States. Further, Congress has enacted laws that set the terms of employment for aliens and impose civil and criminal penalties on employers who attempt to recruit or hire an unauthorized alien. See 8 U.S.C. §§ 1324-1324a (2012). Therefore, a license issued by a state cannot permit an unauthorized alien to perform work if such conduct is prohibited by federal law. “The federal power to determine immigration policy is well settled.” Arizona, 132 S.Ct. at 2498.

The United States Department of Justice argues that federal statutes prohibit this Court from issuing a law license to an unlawfully present alien, citing 8 U.S.C. § 1621 (2012). The Department of Justice also cites the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Pub.L. No. 104-193, 110 Stat. 2105 (Aug. 22, 1996). This federal law prohibits specified categories of aliens from obtaining certain state public benefits. The statute first states that aliens are not “eligible for any State ... public benefit”. unless they are “qualified alien[s]” (defined in 8 U.S.C. § 1641 (2012)), nonimmigrant aliens (defined in 8 U.S.C. § 1101(a)(15) (2012)), or aliens who are “paroled” into the United States for less than one year. See 8 U.S.C. § 1621(a) (2012). Thus, pursuant to the statute, aliens who lack lawful immigration status are ineligible for certain public benefits (unless a state takes specific action as set forth in 8 U.S.C. § 1621(d) (2012), discussed below).

Next, the statute defines the state public benefits for which these aliens are ineligible. The benefits include “any ... professional license, or commercial license” that is provided “by appropriated funds of a State.” See 8 U.S.C. § 1621(c) (2012). A State license to practice law is a professional license. As this Court is funded through appropriations, the issuance of a license to practice law therefore falls within the prohibition set out in the federal statute. Simply stated, current federal law prohibits this Court from issuing a license to practice law to an unlawful or unauthorized immigrant.

Counsel for Applicant notes that 8 U.S.C. § 1621(d) (2012) allows a state to take specific action to “override the federal barrier” and provide a state public benefit to unauthorized immigrants. Under subdivision (d), a “State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under [8 U.S.C. § 1621(a) (2012) ].” However, the state may only do so “through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.” 8 U.S.C. § 1621(d) (2012) (emphasis added). The plain language of the statute and case law indicate that the phrase “enactment of a State law” requires a state legislature to address this appropriations-related issue and pass legislation, which the governor must either approve or permit to become the law of the State. See generally Martinez v. Regents of the Univ. of Ca., 50 Cal.4th 1277, 117 Cal.Rptr.Sd 359, 241 P.3d 855, 859 (2010) (examining whether a statute passed by the California Legislature met the requirements of 8 U.S.C. § 1621(d), which permits a state to make unlawful aliens eligible for public benefits otherwise prohibited by 8 U.S.C. § 1621); Day v. Sebelius, 376 F.Supp.2d 1022 (D.Kan.2005) (plaintiffs challenging a Kansas statute that made certain state university tuition benefits available to illegal aliens, and arguing that it did not meet the federal requirements set forth in 8 U.S.C. § 1621(d), were found to lack standing); League of United Latin American Citizens v. Wilson, 997 F.Supp. 1244, 1253 (C.D.Cal.1997) (stating that 8 U.S.C. § 1621(d) provides “a description of state legislative options in the area of immigrant eligibility for state or local benefits”). In contrast to the clear language of the federal statute and case law, the amici and counsel for Applicant claim that non-legislative forms of “State law” could meet the requirements set forth in 8 U.S.C. § 1621(d) (2012). However, they have failed to present any existing State of Florida law that governs the instant situation and complies with section 1621(d). Cf. Martinez, 117 Cal.Rptr.3d 359, 241 P.3d at 867-8 (stating that for the California statute to comply with federal requirements, “the state statute must expressly state that it applies to undocumented aliens, rather than conferring a benefit generally without specifying that its beneficiaries may include undocumented aliens,” with the court ultimately holding that the California statute did not violate 8 U.S.C. § 1621 because it expressly refers to “a person without lawful immigration status” and “undocumented immigrant[s]”); see also Raider v. Hamos, 363 Ill.Dec. 641, 975 N.E.2d 667, 674-5 (Ill.App. 1 Dist.2012) (stating that a statute that confers “a benefit generally, without any indication that the [State] legislature intends to opt out of section 1621,” would not satisfy the federal statute because section 1621(d) requires a state law to convey “a positive expression of legislative intent to opt out of section 1621(a) by extending state or local benefits to unlawful aliens”). Thus, there is no current State law that meets the requirements of section 1621(d) and permits this Court to issue a law license to an unauthorized immigrant.

Next, several amici and counsel for Applicant assert that unauthorized immigrants should be admitted to Florida Bar membership based on policies announced by the executive branch of the federal government. They refer to a memorandum from Mr. John Morton, Director of United States Immigration and Customs Enforcement, which lists “individuals present in the U.S. since childhood” among the types of individuals who should not be considered priorities when deciding whom to prosecute for being illegally present in the United States. More significantly, they rely upon a new type of temporary permission to stay in the United States called “Deferred Action for Childhood Arrivals” (DACA), which was announced by the President of the United States on June 15, 2012, as a “policy directive.” Amici and counsel for Applicant argue that an individual who has been given DACA status is lawfully present in the United States. However, a grant of DACA status is temporary and does not provide a path to lawful permanent resident status or United States citizenship. In fact, the Department of Homeland Security’s website clearly states, with respect to “Consideration of Deferred Action for Childhood Arrivals Process,” that:

On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not provide an individual with lawful status.

See U.S. Citizenship & Immigration Servs., “Consideration of Deferred Action for Childhood Arrivals Process,” http://www. uscis.gov/humanitarian/consideration-deferred-action-childhoodarrivals-process (updated January 18, 2013) (emphasis added); see also Saldana v. Lahm, 2013 WL 5658233, ⅜1 (D.Neb.2013) (United States District Court for Nebraska stating that DACA is a form of prosecutorial discretion, through which immigration authorities make a discretionary determination not to remove an individual from the United States during a specified period). The policy provides that people who are granted DACA status will not be a priority for the executive branch in enforcing deportation laws; the policy explicitly states that it does not provide an unauthorized immigrant with lawful status. The DACA program was recently considered by a United States District Court in Arizona Dream Act Coalition v. Brewer, 945 F.Supp.2d 1049 (D.Ariz.2013). The court stated:

On June 15, 2012, Secretary Napolita-no issued a memorandum announcing that certain young persons not lawfully present in the United States will be eligible to obtain deferred action if they meet specified criteria under the newly instituted DACA program-The Na-politano memorandum makes clear that it “confers no substantive right, immigration status or pathway to citizenship[,]” and that “[o]nly the Congress, acting through its legislative authority, can confer these rights.”

Id. at 1054. The federal district court held that:

[t]he memorandum does not have the force of law. Although the Supreme Court has recognized that federal agency regulations “with the force of law” can preempt conflicting state requirements, Wyeth [v. Levine, 555 U.S. 555, 576, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) ], federal regulations have the force of law only when they prescribe substantive rules and are promulgated through congressionally-mandated procedures such as notice-and-comment rulemaking. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1071 (9th Cir.2010) (citing United States v. Fifty-Three (53) Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir.1982)). Secretary Napolitano’s memorandum does not purport to establish substantive rules (in fact, it says that it does not create substantive rights) and it was not promulgated through any formal procedure.
And to the extent Plaintiffs rely on the purposes of the DACA program, they are looking to a nonbinding policy of a federal agency, not the intent of Congress .... What is more, the Court certainly cannot impute the intentions of the DACA program to Congress when Congress itself has declined repeatedly to enact legislation that would accomplish the goals of the DACA program. See, e.g., DREAM Act of 2011, S. 952, H.R. 1842,112th Cong. (2011).

Arizona Dream Act Coalition, 945 F.Supp.2d at 1060. DACA status does not have the force and effect of law. Therefore, it does not make substantive changes to federal immigration law.

In light of Arizona Dream Act Coalition and official statements by the Department of Homeland Security regarding the DACA program, the reliance by the amici and counsel for Applicant on these executive branch policies is misguided. Both the Morton memorandum and DACA status are executive branch policies addressing deportation and the exercise of prose-cutorial discretion. They are not laws passed by Congress. These policies do not provide this Court with legal authority to disregard the laws currently enacted by Congress and admit unauthorized immigrants into Florida Bar membership.

Accordingly, we answer the Florida Board of Bar Examiners’ question by holding that unauthorized immigrants are ineligible for admission to The Florida Bar. Applicants are required to demonstrate that they are legally present in the United States.

It is so ordered.

POLSTON, C.J., and QUINCE, CANADY, and PERRY, JJ., concur.

LEWIS, J. concurs in result.

LABARGA, J., concurs with an opinion, in which PARIENTE, J., concurs.

LABARGA, J.,

concurring.

I reluctantly concur with the majority decision rendering an otherwise qualified class of applicants ineligible to practice law in Florida simply on the basis of their immigration status, but I do so only because the present state of federal and Florida law compels me to reach such an inequitable conclusion. Specifically, the Florida Legislature has failed to enact any law providing that unauthorized immigrants are eligible for certain public benefits, in this case a license to practice law, as authorized by 8 U.S.C. § 1621(d), and as the California Legislature recently did to clear the only impediment to Sergio Garcia’s admission to the State Bar of California. See In re Garcia, 58 Cal.4th 440, 165 Cal.Rptr.3d 855, 315 P.3d 117, 127 (2014) (citing Cal. Bus. & Prof.Code § 6064 (West 2014)). Given this authority to determine the eligibility of a class of applicants to The Florida Bar, the Florida Legislature is in the unique position to act on this integral policy question and remedy the inequities that the unfortunate decision of this Court will bring to bear.

The injustice of this decision is more apparent when applied to Applicant, who was the impetus for the Board’s petition for an advisory opinion only after the Board adopted a policy in January 2008 requiring applicants to provide immigration documents. As a nine-year-old child, Applicant legally entered the United States from Mexico with his family, who had passports and valid tourist visas. Through no fault of his own, however, his family overstayed their visas and opted not to return to Mexico. Although Applicant initially only spoke Spanish, he successfully integrated into American society by learning English, becoming an Eagle Scout, graduating from a Tampa high school as valedictorian, graduating from New College of Florida, and graduating from The Florida State University College of Law with several book awards. Throughout the Bar admissions process, Applicant disclosed his immigration status, and the Board indicated in a notice of supplemental authority dated March 15, 2013, that “nothing presently contained in [Applicant’s] investigative file will, in and of itself, be considered disqualifying.” Further, Applicant passed The Florida Bar Examination. Moreover, numerous law professors, the general counsel of his undergraduate institution, an attorney from Gulfeoast Legal Services, and past presidents of the American Bar Association strenuously supported Applicant’s eligibility for admission to The Florida Bar. Thus, it has become increasingly apparent throughout these proceedings that Applicant is an otherwise legally qualified applicant for admission to The Florida Bar and that he is the type of exemplary individual The Florida Bar should strive to add to its membership. However, as discussed below, Applicant is an unauthorized immigrant ineligible to receive public benefits under federal law because, as he explained in his law school application essay, he did not resist his parents when they chose to escape their impoverished conditions in Mexico.

Although Florida law ordinarily governs Bar admissions, under the supremacy clause of the United States Constitution, our state laws are subordinate to federal statutes adopted pursuant to Congress’s authority under the United States Constitution. The federal statute at issue here, 8 U.S.C. § 1621, was adopted pursuant to Congress’s “constitutional power to ‘establish an [sic] uniform Rule of Naturalization’ ” due, in part, to “its inherent power as sovereign to control and conduct relations with foreign nations.” See Arizona v. U.S., — U.S. -, 132 S.Ct. 2492, 2498, 183 L.Ed.2d 351 (2012). Further, “past decisions of the United States Supreme Court clearly establish that the federal government generally has ‘plenary authority’ over matters relating to immigration ... and that provisions of federal law relating to immigration prevail over any conflicting state law.” In re Garcia, 165 Cal.Rptr.3d 855, 815 P.3d at 125 (citing Arizona, 132 S.Ct. [at 2498-2502]; Takahashi v. Fish Comm’n, 334 U.S. 410, 419, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Hines v. Davidowitz, 312 U.S. 52, 62-74, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). “Accordingly, even with respect to matters that ordinarily and historically are an appropriate subject of state regulation — such as a state’s granting or denial of a license to practice law in the state — when the federal government has enacted a law restricting the right of a non-United States citizen to obtain such a professional license, under the supremacy clause the applicable federal statute will necessarily take precedence and prevail over any conflicting state law.” Id. 165 Cal.Rptr.3d 855, 315 P.3d at 125.

The plain language of 8 U.S.C. § 1621 indicates Congress’s intent to preclude unauthorized immigrants from receiving professional licenses provided by appropriated governmental funds. The issuance of a license to practice law to an unlawfully present alien would require an order of this Court. See Fla. Bar Admiss. R. 5-11. This Court is funded through appropriations. See art. V, § 14(a), Fla. Const. (“Funding for the state courts system ... shall be provided from state revenues appropriated by general law.”). Thus, a license to practice law in Florida is issued by appropriated funds and subject to the provisions of 8 U.S.C. § 1621. As noted in the majority, 8 U.S.C. § 1621(d) provides that the Florida Legislature may stipulate that an unauthorized immigrant is eligible for any public benefit “through the enactment of a State law ... which affirmatively provides for such eligibility.” Despite this grant of uncharacteristic authority, the Florida Legislature has chosen not to act on this vital policy question.

When the Supreme Court of California was presented with a similar set of circumstances, the California Legislature enacted a state law affirmatively providing for such eligibility. Rather than allowing Sergio Garcia and other similarly situated applicants to be denied admission to the California State Bar solely on account of their immigration status, the California Legislature enacted, and the Governor of California signed, section 6064(b) of the California Business and Professional Code into law. See In re Garcia, 165 Cal.Rptr.3d 855, 315 P.3d at 125. Section 6064(b) of the Code provides that an unauthorized immigrant who has fulfilled all the requirements for admission to practice law may be admitted as an attorney at law in all the courts of California. However, after concluding that California’s conflicting state law was subordinate to 8 U.S.C. § 1621, the Supreme Court of California considered whether the “recent legislation passed by the California Legislature and signed by the Governor enacting section 6064(b) satisfies the federal requirements set forth in section 1621(d) and thus removes any obstacle this federal statute would otherwise pose to [the Supreme Court of California’s] admission of Garcia to the State Bar.” Id. 165 Cal.Rptr.3d 855, 315 P.3d at 127. The Supreme Court of California held that it did, reasoning that the legislative enactment satisfied the requirements of 8 U.S.C. § 1621 because it was enacted after August 22, 1996, and the statute expressly applies to unauthorized immigrants. Id. 165 Cal.Rptr.3d 855, 315 P.3d at 129.

If the Florida Legislature were to take steps similar to those taken in California, and affirmatively provide that such unauthorized immigrants are eligible for professional licenses, or, more narrowly, a license to practice law, Applicant and other similarly situated qualified individuals would be eligible for admission to The Florida Bar pursuant to our current rules. As currently stated in the Florida Bar Admission Rules, the rules governing admission are reviewed, approved, and promulgated by this Court, and the admission of attorneys to the practice of the profession of law is a judicial function. See Fla. Bar Admiss. R. 1-11, 1-12. To be recommended for admission to The Florida Bar by the Florida Board of Bar Examiners, applicants must meet the requirements of all the applicable rules with regard to character and fitness, education, and technical competence. See Fla. Bar Admiss. R. 1-16. Notably, our rules do not require the attainment of a certain level of immigration status in this country or that the applicant be authorized to work for compensation to be recommended for admission to The Florida Bar. Throughout these proceedings, however, it has been suggested that unauthorized immigrants are ineligible to be admitted to The Florida Bar because this class of applicants is unlawfully present or potentially subject to federal employment restrictions.

Regarding unlawful presence, it has been argued that Florida Bar Admission Rule 3-10.1(c)(4) requires applicants to demonstrate that they will “avoid acts that are illegal, dishonest, fraudulent, or deceitful,” and that Applicant and other future similarly situated applicants have been unlawfully present in the United States for a period of time and will continue this unlawful presence. Further, Florida Bar Admission Rule 3-10.1(c)(5) requires applicants to demonstrate that they will “comply with the requirements of applicable state, local, and federal laws, rules, and regulations; any applicable order of a court or tribunal; and the Rules of Professional Conduct,” and Florida Bar Admission Rule 3-ll(a) provides that conduct disqualifying an applicant from admission includes “unlawful conduct.” Thus, it has been argued, Applicant and others similarly situated cannot be eligible for admission to The Florida Bar because they cannot comply with immigration laws. Cf. Godoy v. The Office of Bar Admissions, No. 1:05— CV-067&-RWS, 2006 WL 2085318, *5 (N.D.Ga. July 25, 2006) (“An applicant’s willingness to maintain an unlawful residence in the United States, like his ongoing participation in other illegal activities, has an undeniable bearing on that applicant’s character and fitness to practice law.”). However, our rules and case law do not support this myopic viewpoint, and application of our rules to Applicant demonstrates as much.

Florida Bar Admission Rule 2-12 provides that “[a]ll applicants seeking admission to The Florida Bar must produce satisfactory evidence of good moral character, an adequate knowledge of the standards and ideals of the profession, and proof that the applicant is otherwise fit to take the oath and to perform the obligations and responsibilities of an attorney. ...” “The sole purpose of [requiring proficiency in the law and good moral character] is to protect the public.” Fla. Bd. of Bar Exam’rs re G.W.L., 364 So.2d 454, 458 (Fla.1978). “Finding a lack of good moral character is not restricted to acts reflecting moral turpitude, but, rather, includes ‘acts and conduct which would cause a reasonable man to have substantial doubts about an individual’s honesty, fairness and respect for the rights of others and for the laws of the state and nation.’ ” Fla. Bar re John, 559 So.2d 1089, 1090 (Fla.1990) (quoting G.W.L., 364 So.2d at 458 (emphasis added)). Thus, the effect an applicant’s unlawful presence has on the applicant’s record of moral character should be evaluated with two questions in mind: does the public need to be protected from the conduct at issue and does the applicant’s unlawful presence reflect moral turpitude or cause a reasonable person to have substantial doubts about the applicant’s honesty, fairness, and respect for the rights of others and the law.

Indeed, the language of the rules suggests that this is the ultimate purpose of a background investigation. For instance, Florida Bar Admission Rule 3-10, which is followed by Florida Bar Admission Rule 3-10.1 discussed above, provides that applicants must have a record of conduct that “justifies the trust of clients, adversaries, courts, and others with respect to the professional duties owed to him or her.” (Emphasis added). Florida Bar Admission Rule 3-10.1 also refers to the following essential attributes of an attorney: (1) knowledge of the principles of law; (2) ability to reason logically; (3) ability to comply with deadlines; (4) ability to communicate candidly and civilly with clients, attorneys, courts, and others; and (5) ability to conduct financial dealings in an honest manner. Finally, Florida Bar Admission Rule 3-11, titled “Disqualifying Conduct,” refers to “lack of honesty, trustworthiness, diligence, or reliability ...” and “academic misconduct,” fraud, deceit, misrepresentation, irresponsibility, neglect of professional obligations, mental or emotional instability, and evidence of drug or alcohol dependency, among multiple examples of disqualifying conduct. Accordingly, it is apparent that our rules are concerned with an applicant’s record of moral behavior, trustworthiness, reliability, and mental health when evaluating whether an applicant has produced satisfactory evidence of good moral character. See Fla. Bd. of Bar Exam’rs re M.R.I., 623 So.2d 1178, 1180 (Fla.1993) (quoting Fla. Bd. of Bar Exwm’rs re J.H.K., 581 So.2d 37, 39 (Fla.1991) (“While there is no litmus test by which to determine whether an applicant for admission to the Bar possesses good moral character, we have said that no moral character qualification for Bar membership is more important than truthfulness and candor.”)).

A fair reading of these rules in this context does not lead to the conclusion that unauthorized immigrants as a class are invariably ineligible for admission to The Florida Bar or to take the required oath of office based solely on their unlawful presence in this country. First, unlawful presence is not a criminal offense and does not involve moral turpitude. The Supreme Court of California, in considering this identical concern, observed the following:

Although an undocumented immigrant’s presence in this country is unlawful and can result in a variety of civil sanctions under federal immigration law (such as removal from the country or denial of a desired adjustment in immigration status) (8 U.S.C. §§ 1227(a)(1)(B), 1255©), an undocumented immigrant’s unauthorized presence does not constitute a criminal offense under federal law and thus is not subject to criminal sanctions. Moreover, federal law grants federal immigration officials broad discretion in determining under what circumstances to seek to impose civil sanctions upon an undocumented immigrant and in determining what sanctions to pursue. (See, e.g., Arizona v. United States, [132 S.Ct. at 2498-99].) Under current federal immigration policy it is extremely unlikely that immigration officials would pursue sanctions against an undocumented immigrant who has been living in this country for a substantial period of time, who has been educated here, and whose only unlawful conduct is unlawful presence in this country.

In re Garcia, 165 Cal.Rptr.3d 855, 315 P.3d at 130 (emphasis in original). Moreover, unlawful presence does not prevent an individual from performing the obligations and responsibilities of an attorney; does not in and of itself cause a reasonable person to have substantial doubts about an individual’s honesty, fairness, and respect for the rights of others and for .the laws; does not affect an individual’s trustworthiness; and does not affect an individual’s reliability. Thus, unlawful presence in this country is not in and of itself a disqualifying factor for admission to The Florida Bar. Accord In re Garcia, 165 Cal.Rptr.3d 855, 315 P.3d at 130-31 (“We conclude the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California.”).

Indeed, a contrary result would prove unjust as applied to Applicant. For instance, as noted earlier, Applicant’s application revealed that, though unlawfully present, he arrived in this country at the age of nine, assimilated to this country’s culture, and excelled in academics and in community endeavors. Further, many individuals who have come to meet Applicant and know of his unlawful status have provided glowing recommendations as to his character and fitness to practice law in Florida. What is more, the Florida Board of Bar Examiners itself has reached the conclusion that he is otherwise fit to practice law. Accordingly, a determination that Applicant is not of good moral character to join this profession — despite overwhelming proof of his impeccable character, knowledge of the law, and ability to reason logically — because his family chose to overstay their visas and he chose to remain with his family as an adult after he assimilated to this country’s culture, would be an absurd result.

It has also been suggested that unauthorized immigrants who are restricted from working for compensation under federal law are ineligible for admission to The Florida Bar. This argument is equally unpersuasive. Congress has enacted laws that set the terms of employment for aliens and impose civil and criminal penalties on employers who attempt to recruit or hire an unauthorized alien. See 8 U.S.C. §§ 1824-1324a (2012). Thus, unauthorized immigrants who have not received authorization to work cannot work in the United States for compensation. As noted by the Supreme Court of California, however, an unauthorized immigrant’s inability to represent clients in some matters or for compensation “does not necessarily preclude all possible uses of a law license.” In re Garda, 165 Cal.Rptr.3d 855, 315 P.3d at 132. Further, an unlawfully present attorney would still have to abide by the Rules of Professional Conduct, and there is no reason to speculate that an otherwise qualified applicant (someone who has provided satisfactory evidence of good moral character) would violate federal laws pertaining to employment authorization for unauthorized immigrants. See, e.g., In the Matter of Ravindra Singh Kanwal, D2009-053 (OCIJ July 8, 2009) (disciplinary action against licensed attorney who filed petitions for immigration benefits, and appeared in immigration courts on behalf of clients, even though he lacked authorization to work in the United States); People v. Kanwal, No. 09PDJ071, 2009 WL 2579847 (Colo.O.P.D.J. July 21, 2009) (suspending same attorney in Colorado); In the Matter of Noel Peter Mpaka Canute, D2010-124 (OCIJ March 16, 2011) (disciplining licensed attorney for filing petitions for immigration benefits on behalf of clients in violation of federal law); In re Mpaka, 92 A.D.3d 1203, 939 N.Y.S.2d 157 (2012). To the contrary, as the Supreme Court of California concluded, it should be assumed “that a licensed undocumented immigrant will make all necessary inquiries and take appropriate steps to comply with applicable legal restrictions and will advise potential clients of any possible adverse or limiting effect the attorney’s immigration status may pose.” In re Garcia, 165 Cal.Rptr.3d 855, 315 P.3d at 133.

In addition, as argued by the Department of Justice in its amicus brief, whether a license to practice law may be issued is not dependent on whether the applicant may be legally employed. Notably, 8 U.S.C. § 1621(d) confers upon state legislatures the authority to provide that unauthorized immigrants are eligible to receive a license to practice law, but the statute does not condition the grant of such licenses on proof of work authorization. Perhaps this is so because federal law restrictions on employment change periodically, and many undocumented immigrants are now eligible to obtain work authorization. See In re Garda, 165 Cal.Rptr.3d 855, 315 P.3d at 132. Moreover, enforcement of the federal provisions governing employment of unauthorized immigrants is the responsibility of the federal government, not state government. Accordingly, an unauthorized immigrant’s potential inability to obtain work authorization under federal law is not an obstacle to admission to The Florida Bar pursuant to our rules.

Based on the foregoing, it is evident that the only barrier to admission to The Florida Bar for Applicant and others similarly situated is 8 U.S.C. §§ 1621(a) and (c). Indeed, in many respects, Applicant’s life in the United States parallels my own. He and I were brought to this great nation as young children by our hardworking immigrant parents. We both learned to read, write, and speak the English language within a short period of time. We excelled scholastically and graduated from college and law school — Applicant from Florida State University and I from the University of Florida. Both of us were driven by the opportunities this great nation offered to realize the American dream. Sadly, however, here the similarities end and the perceptions of our accomplishments begin. When I arrived in the United States from Cuba in 1963, soon after the Cuban Missile Crisis — the height of the Cold War — my parents and I were perceived as defectors from a tyrannical communist regime. Thus, we were received with open arms, our arrival celebrated, and my path to citizenship and the legal profession unimpeded by public policy decisions. Applicant, however, who is perceived to be a defector from poverty, is viewed negatively because his family sought an opportunity for economic prosperity. It is this distinction of perception, a distinction that I cannot justify regarding admission to The Florida Bar, that is at the root of Applicant’s situation. Applicant is so near to realizing his goals yet so agonizingly far because, regrettably, unlike the California Legislature, the Florida Legislature has not exercised its considerable authority on this important question. Thus, only reluctantly do I concur with the majority decision.

PARIENTE, J., concurs.

      . In the present case, the issue is not the admission of a particular applicant, it is a request for an advisory opinion regarding a clearly stated question. The separate issue of the current applicant's admission is not before the Court. See Fla. Bd. Bar Exam’rs Re: Question, No. SCI 1-2568 (Fla. Apr. 4, 2013) (order denying motion for admission). Thus, the arguments presented regarding the character and fitness of that applicant are not discussed in this opinion.

      . The Court has previously answered questions filed by the Florida Board of Bar Examiners pursuant to the Court’s jurisdiction to regulate the admission and discipline of attorneys under article V, section 15, of the Florida Constitution (and that section’s predecessor, article V, § 23). See, e.g., Fla. Bd. Bar Exam’rs, 581 So.2d 895 (Fla.1991); In re Certified Question, 361 So.2d 424 (Fla.1978); In re Fla. Bd. Bar Exam’rs, 350 So.2d 1072 (Fla.1977); In re Question Certified by Fla. Bd. Bar Exam’rs, 265 So.2d 1 (Fla.1972); In re Fla. Bd. Bar Exam’rs, 183 So.2d 688 (Fla.1966).

      . In Godoy, a permanent resident alien who had applied to the Georgia Bar sued the Georgia Office of Bar Admissions. He alleged that the Georgia Board to Determine Fitness of Bar Applicants’ practice of requiring certain immigration documentation from non-citizens and “all foreign-born applicants” violated the supremacy and equal protection clauses of the United States Constitution, as well as his substantive due process rights. 2006 WL 2085318, at *1. In response, the Georgia bar examiners stated that the request for documents was designed to allow a non-United States citizen or foreign-born applicant to demonstrate that he is lawfully in the United States and will remain in legal status through the administration of the bar exam that he wishes to take. The Georgia bar examiners asserted that its interest in obtaining such proof is constitutionally permissible and substantial, in that “compliance with all laws, including immigration laws, is a standard expected of all applicants and lawyers.” Id. at *4. The federal court found in favor of the Georgia bar examiners.

      .Several amicus briefs have been filed arguing that Applicant and others in his situation should be admitted to membership in The Florida Bar. Applicant’s counsel, the amici, and the Board asked the Court to consider various arguments presented ih a case recently decided by the Supreme Court of California, In re: Sergio C. Garcia, 58 Cal.4th 440, 165 Cal.Rptr.3d 855, 315 P.3d 117 (2014). In that case, a brief filed by the United States Department of Justice set forth pertinent legal authorities regarding immigration law. By order dated April 18, 2013, this Court invited supplemental briefing, addressing specific issues, from the Department of Justice, the Florida Board of Bar Examiners, and counsel for Applicant.

      . A conference committee report on the bill that enacted section 1621 states that "the affirmative enactment of a law by a State legislature and signed by the Governor after the date of enactment of this Act” is required. (H.R.Rep. No. 104-725, 2d Sess., p. 383 (1996), 1996 U.S.C.C.A.N. 2649, p. 2771).

      . On January 2, 2014, the California Supreme Court issued In re: Garcia, 58 Cal.4th 440, 165 Cal.Rptr.3d 855, 315 P.3d 117, which admitted an unauthorized immigrant, Mr. Garcia, to the California State Bar. The Cali-fomia Supreme Court relied in large part on a state law that became effective on January 1, 2014, which explicitly authorizes applicants for the California State Bar who are not lawfully present in the United States to obtain a law license. The court held that the California statute satisfied the requirements of 8 U.S.C. § 1621(d) and removed any obstacles to Mr. Garcia’s admission to the California Bar that may have been presented by other provisions of that federal statute.

      . See also DREAM Act of 2010, H.R. 6497, S. 3962, S. 3963, 111th Cong. (2010); DREAM Act of 2007, S. 774, 110th Cong. (2007).

      . During the Court's consideration of this matter, numerous public policy arguments were offered in favor of extending state public benefits to unlawful or unauthorized aliens. Arguments of this nature are properly presented to the Florida Legislature and the United States Congress. See generally Equal Access Educ. v. Merten, 305 F.Supp.2d 585, n. 32 (E.D.Va.2004).

      . Typically, this authority is reserved exclusively for this Court pursuant to the provisions of the Florida Constitution, subordinate in this instance to the supreme law of the land. See art. V, § 15, Fla. Const, (providing that this Court is vested with “exclusive jurisdiction to regulate the admission of persons to the practice of law

      . While in high school, he received: (1) an AP Scholar with Distinction Award; (2) the President's Education Award for Outstanding Academic Excellence; (3) an award for Achievement in Academics; (4) a Magna Cum Laude Award in the National Latin Examination; and (5) the 2002 FfACER Scholarship. He was also a member of the National Honor Society.

      . New College of Florida is considered the public “honors college” of Florida.

      . He was able to attend law school on privately funded scholarships. Further, he received book awards, which are awards given to recognize outstanding academic achievement, in Immigration Law, Contracts II, and Comparative Constitutional Law.

      . The full text of section 6064(b) provides: "Upon certification by the examining committee that an applicant who is not lawfully present in the United States has fulfilled the requirements for admission to practice law, the Supreme Court may admit that applicant as an attorney at law in all the courts of this state and may direct an order to be entered upon its records to that effect. A certificate of admission thereupon shall be given to the applicant by the clerk of the court.” Cal. Bus. & Prof.Code § 6064 (West 2014).

      . Currently our rules prohibit the following classes of individuals from applying for admission: (1) individuals who have been disbarred or have resigned pending disciplinary proceedings; (2) individuals who have been suspended for disciplinary reasons in a foreign jurisdiction and the period of suspension has not expired; (3) individuals who have been convicted of a felony and have not had their civil rights restored; (4) individuals who are serving felony probation; and (5) individuals who were previously denied admission by a negotiated consent judgment. See Fla. Bar Admiss. R. 2-13.1, 2-13.2, 2-13.3, 2-13.4, and 2-13.5. This exhaustive list does not include individuals who are unlawfully present in this country.

      . Applicant has received some form of work authorization. Thus, this portion of the discussion is not applicable to his circumstances at the present time.

      . For instance, pro bono services could be rendered.

      . As noted in the majority op. at 433 n. 3, this Court issued an order requesting that the Department of Justice file an amicus brief addressing several issues, including many related to an unauthorized immigrant’s authorization to work and the effect the authorization to work or lack thereof has on an applicant’s eligibility for admission to The Florida Bar. The Department of Justice urged this Court not to base its decision on an unauthorized immigrant's ability to work for compensation under federal law.


author: MORRIS, Judge.

text:
    UNITED STATES FIRE INSURANCE COMPANY, a foreign corporation, a/s/o M A Federal, Inc., Appellant, v. ADT SECURITY SERVICES, INC., a foreign corporation, Appellee.
    No. 2D12-1956.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Rehearing Denied Jan. 22, 2014.
    Carol M. Rooney, Hobart M. Hind, Jr., and Anthony J. Livingston of Butler Pap-pas Wéihmuller Katz Craig LLP, Tampa, for Appellant.
    Kristopher J. Verra of Shook Hardy & Bacon L.L.P., Tampa, and Charles C. Eblen of Shook Hardy & Bacon L.L.P., Kansas City, Missouri, for Appellee.
   MORRIS, Judge.

•United States Fire Insurance Company (USFI) appeals a judgment on the pleadings entered in favor of ADT Security Services, Inc., which had the end result of a dismissal of USFI’s complaint with prejudice. This negligence action arose after a facility owned by M.A. Federal, USFI’s insured, was broken into and equipment was stolen. ADT provided security for the building. After USFI paid M.A. Federal’s insurance claim, USFI became subrogated to M.A. Federal’s rights and sued ADT on the theories that ADT was negligent by failing to advise M.A. Federal that the analog-based security system that was installed would become obsolete once the Federal Communications Commission (FCC) transitioned from an analog-based system to a digital system, by failing to replace the analog-based system with a digital system after the transition, and by failing to advise M.A. Federal that the system stopped transmitting signals once the transition occurred. The trial court granted ADT’s motion for judgment on the pleadings based on provisions in the contract between ADT and M.A. Federal purporting to limit ADT’s liability. We conclude that this was error because USFI alleged a legally sufficient cause of action that was independent of any breach of contract.

Background

M.A. Federal contracted with ADT in 2006 to install a security system which included a wireless backup that would activate if the “hard wire” was disabled. At the time of the installation, ADT was aware that analog service would cease in 2008, thereby resulting in a loss of signal between analog-based security systems and ADT’s alarm monitoring service.

The wireless backup for M.A. Federal’s security system ceased working in 2008 at the time of the transition from analog to digital service. However, ADT did not notify M.A. Federal that the backup system was no longer transmitting signals to ADT’s monitoring service. In March 2010, M.A. Federal’s warehouse was broken into and millions of dollars of equipment was stolen. During the burglary, the “hard wire” was disabled, and because the wireless system was not transmitting a signal, the burglary went undetected.

After USFI became subrogated to M.A.’s Federal’s rights, it brought its negligence suit. Within ADT’s answer and affirmative defenses, it admitted that it knew about the transition date. However, ADT denied any liability for M.A. Federal’s losses and denied that it had any duties to M.A. Federal other than “duties recognized by law.” ADT alleged thirteen affirmative defenses, including the defense that the cause of action was barred by contractual provisions between the parties.

Thereafter, ADT filed its motion for judgment on the pleadings based entirely on the affirmative defense of contractual liability. ADT argued that USFI had failed to allege a tort duty independent of the parties’ contract that could support the negligence claim. ADT further contended that a waiver of subrogation provision barred USFI’s action and that another provision limited ADT’s liability to $1000. ADT relied on language on the back of the contract addressing circumstances where a customer could, for an additional expense, opt for a rider that would expand ADT’s liability. It is undisputed that M.A. Federal did not purchase the additional protection. ADT argued that it simply had no duty outside the contract to monitor or protect M.A. Federal’s facility.

Ultimately, the trial court granted ADT’s motion finding that USFI’s action was essentially premised upon negligent performance of the contract, and therefore, it was barred by the provisions in the contract.

Analysis

We review an order granting judgment on the pleadings de novo. Syvrud v. Today Real Estate, Inc., 858 So.2d 1125, 1129 (Fla. 2d DCA 2003) (citing Williams v. Howard, 329 So.2d 277, 280-81 (Fla.1976)).

“The purpose of a motion for judgment on the pleadings is to test the legal sufficiency of a cause of action or defense where there is no dispute as to the facts.” Barentine v. Clements, 328 So.2d 878, 879 (Fla. 2d DCA 1976) (citing Bradham v. Hayes Enters., 306 So.2d 568 (Fla. 1st DCA 1975)). A party can only obtain judgment on the pleadings if it is entitled to judgment as a matter of law based solely on the pleadings and attachments thereto. Hammond v. Decorator’s Servs., Inc., 522 So.2d 521, 522 (Fla. 2d DCA 1988); Thompson v. Napotnik, 923 So.2d 537, 539 (Fla. 5th DCA 2006) (citing Tres-AAA-Exxon v. City First Mortg., Inc., 870 So.2d 905 (Fla. 4th DCA 2004)). The trial court must take all well-pleaded facts as true, Barentine, 328 So.2d at 879 (citing Wilkins v. Tebbetts, 216 So.2d 477, 478 (Fla. 3d DCA 1968)), and “the court’s sole inquiry is whether the complaint states a cause of action,” Hammond, 522 So.2d at 522 (citing Appel v. Scott, 479 So.2d 800 (Fla. 2d DCA 1985)). If a party refers to a document within the complaint, a trial court may rely on that document to determine the nature of the claim being alleged. See Veal v. Voyager Prop. & Cas. Ins., 51 So.3d 1246, 1249-50 (Fla. 2d DCA 2011).

Here, USFI alleged that ADT failed to disclose to M.A. Federal that the FCC was transitioning from analog signals to digital signals, failed to replace the analog-based system when it became obsolete after the transition, and failed to notify M.A. Federal when the analog-based system ceased transmitting signals to ADT’s monitoring service. USFI alleged that M.A. Federal would not have contracted with ADT if it had known that the backup system would be rendered useless after the transition. These allegations — which must be accepted as true — address a material component of the contract between the parties, and they amount to allegations of an independent tort. Floyd v. Video Barn, Inc., 538 So.2d 1322, 1324 (Fla. 1st DCA 1989) (citing cases for the proposition that where a breach of contract is combined with some other conduct amounting to an independent tort, the breach can be considered negligence).

While the contract called for the installation of a functioning wireless backup system, the “other conduct” here is ADT’s alleged failure to warn of the transition from analog to digital signals and failure to notify M.A. Federal when the analog-based system ceased transmitting signals to ADT’s monitoring service. The first of these allegations goes to the formation of the contract. USFI alleged that M.A. Federal contracted with ADT to provide a functioning security system, but M.A. Federal did so without full knowledge that the security system it purchased would be rendered obsolete after the transition from analog to digital service. Thus, although USFI’s allegation was inartfully worded, it appears to be one alleging negligent misrepresentation, which is independent of any breach of contract. See HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239 (Fla.1996) (recognizing that intentional or negligent acts which are independent of the contract can give rise to a tort action; in that case, it was fraudulent inducement); Cowley v. Nero, 693 So.2d 120, 121 (Fla. 2d DCA 1997) (recognizing that both fraudulent and negligent misrepresentation in the formation of a contract can be raised in a tort action).

Here, the trial court relied on the contract to rule that ADT was entitled to a judgment on the pleadings. This was error because the contractual provisions would not bar a tort claim for acts which were independent of the contract. See Ray v. Elks Lodge # 1870 of Stuart, 649 So.2d 292, 293 (Fla. 4th DCA 1995) (recognizing that liquidated damages provision in contract would not bar a claim of fraud in the inducement). Accordingly, we hold that USFI alleged a legally sufficient cause of action which was independent of any breach of contract and that the trial court erred by granting judgment on the pleadings which resulted in a dismissal with prejudice. We therefore reverse and remand for proceedings in conformance with this opinion.

Reversed and remanded.

NORTHCUTT and WALLACE, JJ., Concur.

      . On May 17, 2001, the FCC issued an official notification entitled "Analog Sunset Notice” that addressed the transition from analog to digital service. On February 18, 2003, the FCC issued an order initiating a five-year transition period. Analog cellular service ceased on February 18, 2008.

      . The waiver of subrogation provision provided:
      IT IS UNDERSTOOD THAT ADT IS NOT AN INSURER, THAT INSURANCE, IF ANY, SHALL BE OBTAINED BY THE CUSTOMER AND THAT THE AMOUNTS PAYABLE TO ADT HEREUNDER ARE BASED UPON THE VALUE OF THE SERVICES AND THE SCOPE OF LIABILITY AS HEREIN SET FORTH AND ARE UNRELATED TO THE VALUE OF THE CUSTOMER'S PROPERTY OR PROPERTY OF OTHERS LOCATED IN CUSTOMER’S PREMISES. CUSTOMER AGREES TO LOOK EXCLUSIVELY TO CUSTOMER’S INSURER TO RECOVER FOR INJURIES OR DAMAGE IN THE EVENT OF ANY LOSS OR INJURY AND RELEASES AND WAIVES ALL RIGHT OF RECOVERY AGAINST ADT ARISING BY WAY OF SUB-ROGATION.

      .The provision purporting to limit ADT's liability provided:
      THE CUSTOMER DOES NOT DESIRE THIS CONTRACT TO PROVIDE FOR FULL LIABILITY OF ADT AND AGREES THAT ADT SHALL BE EXEMPT FROM LIABILITY FOR LOSS, DAMAGE!,] OR INJURY DUE DIRECTLY OR INDIRECTLY TO OCCURRENCES, OR CONSEQUENCES THEREFROM, WHICH THE SERVICE OR SYSTEM IS DESIGNED TO DETECT OR AVERT; THAT IF ADT SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE!,] OR INJURY DUE TO A FAILURE OF SERVICE OR EQUIPMENT IN ANY RESPECT, ITS LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO 10% OF THE ANNUAL SERVICE CHARGE OR $1,000.00, WHICHEVER IS GREATER, AS THE AGREED UPON DAMAGES AND NOT AS A PENALTY, AS THE EXCLUSIVE REMEDY; AND THAT THE PROVISIONS OF THIS SHALL APPLY IF LOSS, DAMAGED] OR INJURY IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS CONTRACT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF ADT AND ITS AGENTS OR EMPLOYEES.

      . That provision explained:
      IF THE CUSTOMER DESIRES ADT TO ASSUME A GREATER LIABILITY, ADT SHALL AMEND THIS AGREEMENT BY ATTACHING A RIDER SETTING FORTH THE AMOUNT OF ADDITIONAL LIABILITY AND THE ADDITIONAL AMOUNT PAYABLE BY THE CUSTOMER FOR THE ASSUMPTION BY ADT OF SUCH GREATER LIABILITY PROVIDED, HOWEVER, THAT SUCH RIDER AND ADDITIONAL OBLIGATION SHALL IN NO WAY BE INTERPRETED TO HOLD ADT AS AN INSURER.

      . This is the same test as that applied to a motion to dismiss for failure to state a cause of action. Costner v. Ziemer, 113 So.2d 263, 266 (Fla. 2d DCA 1959) (citing Reinhard v. Bliss, 85 So.2d 131, 133 (Fla.1956)).

      . We reject ADT’s assertion that negligent misrepresentation was not raised below. Although USFI did not use the term “negligent misrepresentation,” it is clear from the complaint that it alleged that ADT knew about the transition from analog to digital signals prior to installing the security system but did not notify M.A. Federal of that fact, that M.A. Federal made it clear it needed a functioning wireless backup system, and that M.A. Federal would not have signed the contract if it had known that the wireless backup would not be functional. That allegation bears directly on the formation of the contract and what effect, if any, that ADT's failure to disclose the relevant information had on it. See Ladner v. AmSouth Bank, 32 So.3d 99, 102-03 (Fla. 2d DCA 2009) (recognizing that a material omission in the formation of an agreement is grounds for a negligent misrepresentation claim); see also Baggett v. Electricians Local 915 Credit Union, 620 So.2d 784, 786 (Fla. 2d DCA 1993) (setting forth elements of negligent misrepresentation as; (1) a misrepresentation of material fact; (2) the representer either knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false; (3) the representer intended to induce another to act on the misrepresentation; and (4) injury resulted to a party acting in justifiable reliance upon the misrepresentation).