author: MAY, J.

text:
    Joyce SMALL, Appellant, v. DEVON CONDOMINIUM B ASSOCIATION, INC., Appellee.
    Nos. 4D10-2302, 4D10-5243, 4D11-247, 4D11-4119.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.

      Robin Bresky of Law Offices of Robin Bresky, Boca Raton (withdrawn as counsel after filing brief), and Joyce Small, Tama-rac, pro se.
    Paul J. Milberg of Katzman Garfinkel & Berger, Margate, for appellee.
   MAY, J.

In this dispute, a unit owner appeals multiple orders concerning the condominium association’s right to enter her unit to perform pest-control services. She appeals a final summary judgment, a contempt order, an enforcement order, and two attorney’s fees orders. One of the issues raised is that the trial court erred in entering summary judgment for the association on its right to access the owner’s unit. We agree and reverse the summary judgment. Because we reverse the summary judgment, we also reverse the attorney’s fees order that relates to it. We affirm the remaining orders.

The owner has lived in her unit since 1989. Initially, the association did not provide pest-control services, but later offered them as an optional service. The owner accepted those services until recently being diagnosed with a breathing disorder. Her doctor recommended against the use of chemical pesticides.

The owner informed the association that she no longer desired the pest-control service, and the association stopped spraying her unit from 2005-2009. During that time, the unit owner used an alternative form of pest control. In 2009, the association demanded access to her unit to perform pest-control services; she refused.

The association filed a petition for arbitration seeking access to the unit. The owner did not timely answer the petition, resulting in a default in favor of the association. The arbitrator ordered the owner to allow the association access to the unit each month to perform the service.

The owner filed a complaint in circuit court for a trial de novo. The association answered, asserted various affirmative defenses, and filed a counterclaim for breach of contract, injunctive relief, and a request to uphold the arbitrator’s award. The owner answered the counterclaim and pled lack of authority, waiver, and estoppel as affirmative defenses.

The association moved for summary judgment. It argued that section 718.111(5), Florida Statutes, and the association’s declaration provided the association with a legal right to enter all units for necessary maintenance. The owner filed an affidavit in opposition, describing the circumstances that gave rise to her discontinued use of the services. She also filed an affidavit from her treating physician, attesting that “it would be deleterious to her health to be exposed to any chemicals.”

At the hearing, the association argued that it had an irrevocable right to access the owner’s unit, pursuant to statute and its declaration. It also argued that it had offered to let the owner retain her own vendor if she provided proof that the services were being performed. The owner responded that a factual issue remained as to whether the association’s demands were reasonable and necessary, and summary judgment should be denied. After settlement negotiations failed, the trial court granted summary judgment.

The court’s order provided for the association to “have access to the unit for preventative services — chemical free pesticide.” The owner could provide a non-chemical pesticide or vendor, or the association would have “the right to service with a chemical free pesticide.” The court reserved ruling on entitlement and amount of attorney’s fees.

The association then moved for entry of a final judgment, specifically requesting that the judgment contain sufficient detail to determine compliance. The owner expressed concern about the association’s proposed final judgment. The trial court agreed to go through her notes to insure the judgment correctly reflected her ruling. The trial court entered a final judgment in favor of the association. It specified that:

(1) on the third Monday of every month ... [the owner] shall permit the [association] and its agents access to her unit for the purpose of performing pest extermination services;
(2) the pest extermination services shall be performed with pesticides purchased and provided by [the owner] and given to the [association], or if no such pesticides are provided, then by the [association] using non-toxic chemical free pesticides;
(3) [the owner] may alternatively comply ... by having her own exterminator provide such services to the Unit, and providing the [association] with a copy of an invoice (or any other document) that reasonably indicates that such extermination services were provided for that month.

The court reserved jurisdiction to enforce the terms of the final judgment and to determine entitlement to attorney’s fees. The court denied the owner’s motion for rehearing; the owner appealed.

Both parties moved for attorney’s fees as the prevailing party. The association argued that it prevailed because it succeeded on the access issue. The owner argued that she had prevailed because the trial court altered the arbitration order in her favor by now requiring the use of nontoxic, chemical-free pesticides. The trial court found the association was the prevailing party and entered a final judgment for attorney’s fees and costs. The owner also appealed this order.

The association subsequently moved for contempt and more attorney’s fees when the owner prevented the association from performing the pest-control services until she could have someone inspect the spray to be used. The owner continued to refuse access to the association because her expert found the spray harmful to her condition. After inspecting the unit, the owner’s expert found no evidence of insects.

The court appointed its own expert, who opined that the owner’s alternative form of pest control was one of the least toxic, but it failed to meet the court-ordered standard of non-toxic and chemical-free, and was not designed to eliminate pests other than ants and roaches.

At the next hearing on the contempt motion, the owner argued that she complied with the final judgment by having her own exterminator service her unit, and providing the association with proof. But the association argued that it had a right to access the unit to check the exterminator’s work. The trial court found the owner in contempt, but allowed her to purge the contempt and avoid sanctions by permitting the association’s vendor to access her unit to apply a particular spray. If the owner failed to comply, the association could seek an order authorizing forced entry through the sheriffs office at the owner’s expense. The court also ordered the owner to pay the association’s attorney’s fees of $2,958.75. The owner did not appeal the order finding her in contempt.

The saga continued when the association moved for an enforcement order and additional attorney’s fees because the owner failed to submit an affidavit of compliance. The trial court entered an order permitting enforcement of the contempt order without a hearing. The order permitted the association access to the unit, without the owner’s approval, through use of a locksmith and the sheriffs office. The trial court also ordered the owner to pay fees and costs of $765 associated with the enforcement proceedings. The owner appealed these subsequent orders.

On appeal, the owner continues to argue the trial court erred in granting summary judgment because an issue of material fact existed as to whether the association’s demands were reasonable and necessary. The association responds that whether its actions were reasonable and necessary is not material, and, nevertheless, its actions were necessary and reasonable to prevent a pest infestation that may spread to common areas.

We have de novo review. Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 479 (Fla. 4th DCA 2006).

Rule 1.510 of the Florida Rules of Civil Procedure provides that summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. “Tf the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, that doubt must be resolved against the moving party and summary judgment must be denied.’ ” Roach v. Totalbank, 85 So.3d 574, 578 (Fla. 4th DCA 2012) (quoting Doe v. N. Okaloosa Med. Ctr., Inc., 802 So.2d 1202, 1203 (Fla. 1st DCA 2002)).

Section 718.111(5), Florida Statutes (2009), provides:

Right of access to units. — The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.

(Emphasis added). The association’s declaration of condominium contains similar language.

The owner asserted as an affirmative defense that the association had to show a legitimate need for access to her unit, and that it had failed to demonstrate the “requisite conditions” to gain that access. The association argued that common sense dictated that routine pest control is part of “necessary maintenance” under section 718.111(5).

We have adopted a two-part test to determine the validity of similar association decisions. Hollywood Towers Condo. Ass’n v. Hampton, 40 So.3d 784, 787 (Fla. 4th DCA 2010). The action must be (1) within the condominium association’s authority, and (2) reasonable. Id. In Hampton, we reversed an association’s decision to access a unit owner’s apartment to repair exterior balconies. We remanded the case to the trial court to determine whether the association acted reasonably in accessing the unit owner’s apartment. Id. at 788.

The statute and the declaration both require a showing of reasonableness and necessity. A “claim” of necessity is insufficient. See Sloan v. Sloan, 393 So.2d 642, 644 (Fla. 4th DCA 1981). Rather, the association must establish that its actions are necessary.

Given that the owner lived in the unit for several years without pest service provided by the association, and there was no evidence of a pest problem in 2009, there was a genuine issue of material fact as to the necessity of the association’s actions. See Derius v. Allstate Indem. Co., 723 So.2d 271, 274 (Fla. 4th DCA 1998) (whether a given medical service is “necessary” is a question of fact).

And, considering the owner’s health risks, there was also a genuine issue of material fact about the reasonableness of the association’s actions. See McLemore v. LFH Acquisition Corp., 957 So.2d 118, 118 (Fla. 4th DCA 2007) (reasonableness is a question of fact).

Here, the record reflects genuine issues of material fact as to whether the association’s actions were reasonable and necessary. Summary judgment is therefore reversed, as is the attorney’s fees judgment entered pursuant to entry of that judgment. See Progressive Express Ins. Co. v. Menendez, 979 So.2d 335 (Fla. 3d DCA 2008) (fee award must be reversed where the final summary judgment had been reversed).

Our holding, however, does not exonerate the owner from the contempt finding for two reasons. First, the owner failed to appeal the original contempt finding, and appealed only from the enforcement order. “An untimely appeal cannot be revived by obtaining a new order to the same effect as the original and then filing the notice of appeal within thirty days of the more recent order.” Caldwell v. Wal-Mart Stores, Inc., 980 So.2d 1226, 1229 (Fla. 1st DCA 2008). The owner therefore waived the merits of the contempt finding. Second, a contempt order may stand even if it is based on an erroneously entered order. Robbie v. Robbie, 726 So.2d 817, 819 (Fla. 4th DCA 1999) (citing Rubin v. State, 490 So.2d 1001, 1003 (Fla. 3d DCA 1986)). For these reasons, the contempt and enforcement orders, and the fee order related to these issues, are affirmed.

Reversed in part; Affirmed in part.

TAYLOR and FORST, JJ., concur.


source: Caselaw Access Project

author: LEVINE, J.

license: Public Domain

text:
    Jacob BRIGHTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3740.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    Rehearing Denied July 10, 2014.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant appeals his convictions for two counts of first-degree murder and his sentence to life in prison. We affirm appellant’s convictions, as the trial court did not err in allowing the state to cross-examine a witness regarding the circumstances surrounding appellant’s disclosure of sexual abuse. However, because appellant was a juvenile at the time of the offense, we reverse his mandatory life sentence and remand for resentencing after consideration of the factors outlined in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 188 L.Ed.2d 407 (2012).

In August 2007, appellant, aged sixteen, waved frantically on the side of the road towards a St. Lucie County sheriffs lieutenant who was driving to appellant’s home for a welfare check. Appellant told the lieutenant that “I’ve done something terrible ... I shot my parents.” Appellant further told him that “there’s no need for rescue, they’re dead.” Both of appellant’s parents were found dead inside the house with bullet wounds to their bodies. Appellant told a deputy during an interview that he was thinking “what would happen if I shot him and how, like pretty much planning how to best do it cause I didn’t wanna, I didn’t wanna have to run from a different room to, I wanted them both [to] be in the same room so it could be easier.” Appellant admitted to shooting his father in the back while his father was in the kitchen, and when his mother started to flee, appellant shot his mother in the side.

At trial, appellant’s friend testified that appellant stated “he felt like killing his mom and his dad because he was very angry because they wouldn’t let him do anything.” A couple hours before the shooting, appellant called his friend and asked if they could “hang out” because appellant “thought he might be ungrounded later.”

Appellant testified in his own defense that his father sexually molested him from the time he was nine or ten years old. Appellant stated that he did not tell anyone about the sexual abuse until a year after the killings because he was ashamed and embarrassed and did not want anyone to know what happened to him. Appellant also presented testimony from Dr. Stephen Alexander, a psychologist who interviewed appellant several times after the shootings, that appellant suffered from “battered child syndrome.”

Before trial, appellant had moved in li-mine to preclude the state from suggesting that the defense of “battered child syndrome” had been manufactured by his defense attorneys. The trial court ruled that it would “forbid the creation of any inference that there was anything improperly done by Defense counsel,” but that “the length of time that it took for this to come out and the circumstances immediately preceding it coming out” were “fair game.”

During cross-examination of Dr. Alexander, the state asked what appellant said his defense would be during their second meeting. Dr. Alexander responded that appellant said he thought his defense attorneys were going to use an insanity defense. The trial court overruled the defense’s objection and motion for mistrial based upon attorney-client privilege.

During a bench conference, the state said it intended to ask Dr. Alexander “isn’t it true that his Defense attorneys felt that there was more there and they asked him about sexual abuse.” Appellant objected and moved for a mistrial based on the prior motion in limine. The trial court overruled the objection and denied appellant’s motion for mistrial.

The following testimony then ensued:

[PROSECUTOR]: Now ah, Doctor, would, before we get to July of '08, at some point in time, and again I’m not suggesting anything improper by the Defense, I want this record to be absolutely clear of that. At some point in time the Defense said to you they thought there might be something more there and they asked the ...
[DEFENSE COUNSEL]: Again I’m gonna object, the same objections, same motion.
COURT: Same ruling.
[PROSECUTOR]: And they asked the defendant if he had ever been sexually abused, correct?
A: I had told them earlier I thought there was more after I saw him ...
[PROSECUTOR]: Okay.
A: The first couple of times and then eventually they contacted me and said they’re getting information from him as well and they suspected that there were problems, they had found some information that they, led them to believe it was something that needed to be explored.
Q: What I’m, my direct question is very simply they told you they asked him if he had been molested, correct?
A: Eventually they ask him directly.
Q: Right, and I’m not suggesting that that, that’s their job, they have to find out and talk to their client, I have no problem, there’s nothing improper with that, however he’s a smart kid, right?
A: Yes.
[PROSECUTOR]: All right.
[DEFENSE COUNSEL]: Same objection, same motion.
COURT: Same ruling.
[PROSECUTOR]: So just like we talked about him sitting in court hearing about fear, fear, fear, if he has no insanity defense and he hears sexual abuse
[DEFENSE COUNSEL]: Judge ...
[PROSECUTOR]: Again no ...
[DEFENSE COUNSEL]: I’m sorry.
[PROSECUTOR]: No suggestion that the Defense is doing anything wrong, he’s smart enough to say maybe I should do this, maybe I should say this, isn’t he?
[DEFENSE COUNSEL]: Objection, Judge, can we approach?
COURT: You may.

Once again, appellant moved for a mistrial, arguing that the motion in limine barred the objected-to testimony. The trial court again denied the motion for mistrial. The jury found appellant guilty, and this appeal ensues.

Appellant asserts that the trial court erred by allowing the state to suggest to the jury that his defense of battered child syndrome was improperly suggested to him by the defense. “The standard of review of a trial court’s evi-dentiary rulings is abuse of discretion.” McDuffie v. State, 970 So.2d 312, 326 (Fla.2007).

Generally speaking, “[a] suggestion that the defendant suborned perjury or that a defense witness manufactured evidence, without a foundation in the record, is completely improper.” Chavers v. State, 964 So.2d 790, 792 (Fla. 4th DCA 2007) (citation omitted). In the present case, the record was not “without a foundation” “that the defendant suborned perjury.” The record showed that almost a year passed from the time of the shootings until appellant reported the alleged abuse. Appellant did not mention any abuse during his first three interviews with Dr. Alexander. Rather, appellant first mentioned the abuse only after the defense asked him whether he was abused. Thus, the trial court did not err in admitting testimony regarding the lapse in time, as it went to appellant’s credibility.

Additionally, “[t]he law is clear that attacks on defense counsel are highly improper and impermissible.” Lewis v. State, 780 So.2d 125, 130 (Fla. 3d DCA 2001) (en banc); see also Barnes v. State, 743 So.2d 1105, 1106 (Fla. 4th DCA 1999). “Although the prosecutor is free to suggest to the jury that defendant’s testimony was not credible, if the record evidence suggests that it was not, he [i]s not free to opine that defendant’s lack of candor was scripted by defense counsel.” Lewis, 780 So.2d at 130. In the present case, the state elicited testimony that the defense asked appellant whether he was abused and that appellant was a “smart kid.” Through this testimony, the state implied that appellant fabricated the defense based on the defense’s questioning of him. Such a suggestion was not improper, as it implied fabrication on the part of appellant and did not explicitly constitute an attack on defense counsel.

Appellant’s reliance on Brooks v. State, 762 So.2d 879 (Fla.2000), is misplaced, as the prosecutor in Brooks personally attacked defense counsel, whereas in the present case the prosecutor merely suggested that appellant fabricated the abuse defense. Moreover, the Brooks court vacated the appellant’s convictions not only because of the prosecutor’s verbal attacks on defense counsel, but also because of other improper comments during closing. In contrast, in the present case, appellant has not challenged the introduction of any other evidence or statements during closing.

As to the issue of sentencing, the state concedes that appellant’s sentence violates the dictates of Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Appellant was convicted of two counts of first-degree murder and sentenced to a mandatory term of life in prison without parole. At the time of the offense, appellant was only sixteen years old, and as such, the mandatory sentence of life without parole violates the constitutional dictates of Miller.

In Miller, the United States Supreme Court explained:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Id. at 2468 (citations omitted). The United States Supreme Court concluded that a trial court is not foreclosed from imposing a life sentence without possibility of parole for a juvenile offender, as long as the trial court takes into account the various factors which demonstrate how juveniles are different, and how these differences counsel against irrevocably sentencing juveniles to a lifetime in prison. Id. at 2469.

Our court in Daugherty v. State, 96 So.3d 1076 (Fla. 4th DCA 2012), based on the dictates of Miller, reversed and remanded for a new sentence where the defendant received a sentence of life without parole for second-degree murder committed when the defendant was a juvenile. We directed the trial court “to conduct further sentencing proceedings and expressly consider whether any of the numerous ‘distinctive attributes of youth’ referenced in Miller apply in this case so as to diminish the ‘penological justifications’ for imposing a life-without-parole sentence upon appellant.” Id. at 1080. Our court noted that the trial court was “not preclude[d] ... from again imposing a life term without possibility of parole should the court upon reconsideration deem such sentence justified.” Id.

Our sister courts have also confronted cases where juvenile offenders were convicted and sentenced to life without possibility of parole. In Washington v. State, 103 So.3d 917 (Fla. 1st DCA 2012), the defendant was convicted of first-degree felony murder and sentenced to life without parole. The court concluded that

[ujnder Miller, a sentence of life without the possibility of parole remains a constitutionally permissible sentencing option. A discourse by this Court on other sentencing options is premature.... The better course calls for this Court to exercise restraint and for the parties to make their case before the trial court, where testimony may be taken, evidence presented, and argument made on all material issues to include the potential range of sentencing options.

Id. at 920.

In Hernandez v. State, 117 So.3d 778 (Fla. 3d DCA 2013), the defendant was convicted of first-degree murder and sentenced to life in prison without the possibility of parole. In Hernandez, the court recognized:

Unfortunately, Miller provides little guidance on how to proceed with resen-tencing juveniles convicted under mandatory sentencing schemes. Under Miller, while a sentence of life without parole remains constitutional in homicide cases, the sentencing court must be free to impose a lesser sentence when the defendant’s youth or the circumstances of the crime so indicate. Florida Statutes, however, do not currently provide for lesser sentences in first-degree murder cases. Miller has thus opened a breach in Florida’s sentencing statutes.

Id. at 783. But see Horsley v. State, 121 So.3d 1130, 1131 (Fla. 5th DCA 2013), review granted, SC13-1938, 2013 WL 6224657 (Fla. Nov. 14, 2013) (holding that “the only sentence now available in Florida for a charge of capital murder committed by a juvenile is life with the possibility of parole after twenty-five years”).

We agree that Miller provides little direction on what the trial court may or may not do regarding the differing possible sentencing permutations. We do know, at a minimum, that the trial court may sentence a juvenile defendant to life without parole where the trial court has considered all the Miller factors “should the court upon reconsideration deem such sentence justified.” Daugherty, 96 So.3d at 1080. For the reasons stated in this opinion, we reverse and remand for a resentencing consistent with this opinion and consistent with Miller.

In conclusion, we affirm the convictions for first-degree murder, and reverse and remand for resentencing consistent with Miller.

Affirmed in part, reversed in part, and remanded.

MAY and CIKLIN, JJ., concur.


author: SUAREZ, J.

text:
    Layla BILLIE, Petitioner, v. Kevin STIER, Respondent.
    No. 3D13-3180.
    District Court of Appeal of Florida, Third District.
    April 23, 2014.
    Rehearing Denied July 22, 2014.
    William Brady, Jr., and Jay M. Levy, Miami, for petitioner.

      Paul Morris; Walton, Lantaff, Schroeder & Carson and Elisa T. Terraferma, Miami, for petitioner.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   SUAREZ, J.

This Petition for a Writ of Prohibition evolves out of a custody dispute between the mother, who is a member of the Micco-sukee Tribe of Indians, and the father, who is not a member of the tribe of Native American heritage. The issue is whether the Miccosukee Tribal Court or the Circuit Court of the Eleventh Judicial Circuit has the jurisdiction to decide the custody dispute. The mother petitions for a writ prohibiting the Circuit Court from exercising jurisdiction over the custody matter. Based on the facts of this case and the Uniform Child Custody, Jurisdiction, and Enforcement Act (“UCCJEA”), we conclude that the Circuit Court was correct in determining that it, and not the Tribal Court, has jurisdiction to decide the custody issues and we therefore deny the petition.

FACTS

The Petitioner mother is a member of the Miccosukee Tribe. The Respondent father is not a member of the Miccosukee Tribe and is non-Native American. Their children were born in 2005 and 2007. The parties were never married and it is unclear from the record whether the parties ever co-habitated and, if so, where they resided. The mother initiated custody proceedings in the Miccosukee Tribal Court on October 1, 2012. The record demonstrates that the mother lived in Pembroke Pines for the two months immediately prior to the filing of her petition. The Tribal Court accepted jurisdiction and granted temporary custody to the mother, ex-parte, and set a hearing for November 5, 2012. The only notice the father received of the proceedings was by mail addressed to his mother’s house. Nevertheless, he appeared at the hearing with an attorney, but the attorney was not allowed to attend the proceedings. The father was allowed to attend the proceedings, but they were largely conducted in the Micco-sukee language, which he does not understand, and no interpreter was provided. At the end of the hearing the Tribal Court gave the father a short synopsis of the mother’s testimony and extended the mother’s temporary custody.

After learning of the Tribal Court hearing, but prior to the time for the hearing, the father filed his own petition for custody on November 1, 2012 in the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida. In March 2013, the mother filed for permanent custody in the Tribal Court and, simultaneously, filed a motion in the Circuit Court to dismiss the father’s petition, arguing that the court did not have jurisdiction pursuant to the UCCJEA. The Circuit Court thereafter conducted an evidentiary hearing to determine which of the two courts had jurisdiction pursuant to the UCCJEA. In a detailed Order, with findings of fact and conclusions of law, the Circuit Court determined that it properly had jurisdiction. The crux of the Circuit Court’s Order is that, although the mother’s filing in the Tribal Court preceded the Father’s filing, the Tribal Court did not substantially comply with the jurisdictional requirements of the UCCJEA and, therefore, pursuant to the UCCJEA, jurisdiction should be in the Circuit Court.

ANALYSIS

Florida has adopted the UCCJEA. §§ 61.501 — 61.542, Fla. Stat. (2012). “The UCCJEA unequivocally limits jurisdiction to determine initial custody matters ... to the child’s ‘home state.’ ” Arjona v. Torres, 941 So.2d 451, 454 (Fla. 3d DCA 2006). The question of whether Florida is a child’s “home state” depends on the facts of each case. Section 61.503(7), Florida Statutes (2012), defines “Home state” as “the state in which a child lived with a parent ... for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” As it does not appear to be disputed by the father, for purposes of this petition, we proceed under the assumption that the children met the home state requirements necessary to confer jurisdiction to determine custody in the Tribal Court. But the analysis of whether the Tribal Court has jurisdiction does not end there.

Under the UCCJEA the Miccosukee Tribe is treated as a state in the United States. Section 61.519, Florida Statutes (2012), covers situations where there are simultaneous custody proceedings in this state and in another state. That statute provides that “a court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part.” § 61.519(1), Fla. Stat. (emphasis added). Additionally, Section 61.505, Florida Statutes (2012), states that a custody determination pertaining to an Indian child made by a tribal court must be recognized by Florida if the determination was “made by the tribe under factual circumstances in substantial conformity with jurisdictional standards of [the UC-CJEA].” § 61.505, Fla. Stat. (emphasis added). Under those sections, if the Tribal Court in this case had substantially complied with the requirements of the UC-CJEA, it would have jurisdiction and not the court of the State of Florida.

Substantial conformity is not defined in the statutes, but several cases have construed the term. In Izmery v. Izmery, 559 So.2d 1211 (Fla. 3d DCA 1990), this court stated that the foreign court was required to afford the party an effective opportunity to be heard. In Karam v. Karam, 6 So.3d 87 (Fla. 3d DCA 2009), this court determined that a French court did not satisfy the requirement of substantial compliance because “the UCCJEA focuses on where the children were living prior to the filing” and the French court had determined only the “usual and permanent center of interest.” See also Markle v. Markle, No. 266341, 2007 WL 2317373, at *4 (Mich.Ct.App. Aug. 14, 2007) (finding Michigan court was not required to give full faith and credit to Texas protective order which was not entered in compliance with the UCCJEA’s requirements for emergency orders).

In this case, the Circuit Court found that the Tribal Court did not substantially conform with the UCCJEA. Specifically, the Circuit Court relied on the fact that 1) the father did not receive notice of the reason for the proceedings in the Tribal Court as required by Section 61.509(3), Florida Statutes (2012), and he had not submitted himself to the jurisdiction of the Tribal Court; 2) at the temporary child custody hearing the father did not have the opportunity to be heard; 3) the father’s attorney was not allowed into the tribal proceedings even as an observer; 4) although the father was allowed to attend the proceedings, he was unable to understand what was happening as the proceedings were conducted largely in the Miccosukee language and he was not given an interpreter; and 5) the mother testified in Miccosukee for over twenty minutes and the Tribal Court gave the father only a two-minute summary in English before granting temporary custody to the mother. We agree with the Circuit Court that those actions were not in substantial conformity with the UCCJEA.

We conclude the Circuit Court did not err in finding that the Tribal Court did not substantially conform with the requirements of the UCCJEA and that such failure to comply conferred jurisdiction on the Circuit Court. § 61.505, Fla. Stat. Therefore, we deny the Petitioner’s Writ of Prohibition.

      . I write further, on my own and not on behalf of the majority, to express my concerns over jurisdictional issues in cases like this. I am concerned that the statutes in question appear to almost ignore the authority of Native American tribes over their citizens and seem to ignore the explicit federal statutes and case law setting forth strong tribal interest in determinations regarding custody of Native American children. I would point the reader to, and find very persuasive, the discussions in Garcia v. Gutierrez, 147 N.M. 105, 217 P.3d 591 (2009) and In re Marriage of Skillen, 287 Mont. 399, 956 P.2d 1, 18 (1998), each of which addressed a custody dispute between a Native American parent and a nonNative American parent and each of which determined that application of the UCCJEA and other laws related to Native American welfare should result in concurrent jurisdiction between state and tribal courts and that all courts involved in such disputes should be mindful of the best interest of the children as the primary goal of the exercise of that jurisdiction. The conflicts within the statutes are for Congress to resolve, but unfortunately this and other Courts must grapple with the uncertainties of the statutes until such time as Congress acts.


author: PER CURIAM.

text:
    Kendrick S. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3556.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.
    Rehearing En Banc Denied April 30, 2014.
    Kendrick S. Wilson, Jasper, pro se.
    No appearance required for appellee.
   On Order to Show Cause

PER CURIAM.

Prior to appellant’s filing of this appeal, we issued an opinion cautioning him that continued frivolous filings would result in sanctions. Wilson v. State, 109 So.3d 240 (Fla. 4th DCA 2013). Undeterred, appellant filed a notice of appeal challenging the trial court’s denial of a habeas corpus petition. The trial court properly treated the petition as a motion for post-conviction relief under rule 3.850 and determined that it was untimely and procedurally barred. Fla. R. Crim. P. 3.850(h); Baker v. State, 878 So.2d 1236, 1241 (Fla.2004).

We affirmed and pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), issued an order directing appellant to show cause why this court should not impose sanctions. We have reviewed appellant’s response, and conclude that sanctions are appropriate.

Appellant’s abuse of the post-conviction process interferes with the right of access to court for others and damages the remedy. See Lake v. State, 115 So.3d 1046, 1047 (Fla. 4th DCA 2013) (citing McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010)). This court affirmed appellant’s conviction in 2007, and in 2011 it affirmed the trial court’s denial of his first post-conviction relief motion. Wilson v. State, 72 So.3d 771 (Fla. 4th DCA 2011); Wilson v. State, 964 So.2d 241 (Fla. 4th DCA 2007). Since then his filings, including the instant appeal, have raised merit-less and procedurally barred claims. Wilson v. State, No. 4D11-2658 (Fla. 4th DCA Feb. 27, 2014) (habeas corpus petition); Wilson v. State, 109 So.3d 240 (Fla. 4th DCA 2013).

In particular, this proceeding shows why sanctions are appropriate. Wilson filed a petition for writ of habeas corpus in Hamilton County where he is incarcerated. The proceeding was transferred to St. Lu-cie County. Appellant’s substantive claim presented a challenge to the information in that the victim’s name was wrong. The trial court noted that it was interesting that appellant failed to allege in the current petition (transferred from Hamilton County) that the state had been granted leave to amend the charging document pri- or to trial to correct the victim’s name. The court noted that appellant had acknowledged that amendment in his prior motion, but left it out of the one at issue. The trial court concluded that appellant’s motion was non-meritorious, frivolous and abusive. He continues to allege in this appeal the discrepancy regarding the victim’s name.

Accordingly, the Clerk of this Court is directed to no longer accept any paper filed by Kendrick S. Wilson arising out of his conviction and sentence in St. Lucie County lower tribunal case number 05-3856, unless that paper has been signed by a member in good standing with The Florida Bar and that member certifies that a good faith basis exists for each claim presented. Additionally, the Clerk is directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat. (2012).

Affirmed. Sanctions imposed. Appellant referred to prison officials.

DAMOORGIAN, C.J., WARNER and KLINGENSMITH, JJ„ concur.

      . No. 4D09-3692

      . No. 4D06-3102

      . No. 4D12-1902

      .The docket included in the summary record shows that at trial on May 3, 2006, the state orally moved to amend the information to correct the victim’s name, which motion was granted.


text:
    Wesley PAUL, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-2974, 4D13-3130.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.
    Rehearing Denied July 14, 2014.
    Wesley Paul, Doral, pro se.
    No appearance required for appellee.
   PER CURIAM.

We vacate the amended lower court orders summarily denying appellant’s rule 3.850 motions in the following lower court cases: 08-10007 CF10B, 09-18113 CF10A, 09-18114 CF10B and 10-20584 CF10A, as the lower court did not have jurisdiction to rule on the motions while appellant’s direct appeal was pending in this court in case number 4D12-4476. Dawudi v. State, 929 So.2d 1188 (Fla. 4th DCA 2006); Owens v. State, 911 So.2d 1277 (Fla. 4th DCA 2005); Perez v. State, 834 So.2d 882 (Fla. 4th DCA 2002) (en banc). That appeal remains pending. We remand with directions to the lower court to stay proceedings on these motions until the pending direct appeal is resolved.

Vacated and remanded for stay pending appeal.

STEVENSON, CIKLIN and FORST, JJ., concur.


text:
    Carmen CERRON, Appellant, v. SUNTRUST MORTGAGE, INC., Appellee.
    No. 2D13-3249.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.
    Carmen Cerrón, pro se.
    Karene Lynn Tygenhof and William David Newman, Jr. of Choice Legal Group, P.A. Fort Lauderdale, for Appellee.
   PER CURIAM.

Affirmed. See Pino v. Bank of N.Y., 121 So.3d 23 (Fla.2013).

KELLY, WALLACE, and CRENSHAW, JJ., Concur.


author: GERBER, J.

text:
    R.H. CICCONE PROPERTIES, INC., Appellant, v. JP MORGAN CHASE BANK, N.A., Bank Atlantic, Mortgage Electronic Registration Systems, Inc., Greenpoint Mortgage Funding, Inc., and LPS Field Services, Appellees.
    No. 4D12-4254.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.
    Rehearing Denied July 15, 2014.
    Robert Saylor, West Palm Beach, for appellant.
    Thomas H. Loffredo and Ronald J. To-massi, Jr. of GrayRobinson, P.A., Fort Lauderdale, for appellees JP Morgan Chase Bank, N.A., and Mortgage Electronic Registration Systems, Inc.
   GERBER, J.

The buyer of a property appeals the circuit court’s final order dismissing with prejudice its quiet title action against JP Morgan Chase Bank, N.A. and Mortgage Electronic Registration Systems, Inc. (collectively, “the bank”) following the bank’s voluntary dismissal of a foreclosure action against the property’s prior owner. The buyer argues the circuit court erred in finding that the litigation privilege barred the quiet title action. We agree with the buyer’s argument. Therefore, we reverse for reinstatement of the quiet title action.

We will explain briefly the litigation privilege before explaining the reasoning for our decision.

The litigation privilege is an affirmative defense which affords absolute immunity “to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding.” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994). The rationale behind the litigation privilege is to “free [participants in litigation] to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.” Id.

The bank’s motion to dismiss argued that because the buyer’s allegations in the quiet title action were based on the bank’s allegations in the voluntarily-dismissed foreclosure action, the litigation privilege barred the quiet title action. In response, the buyer argued that the litigation privilege would not bar a quiet title action. According to the buyer:

[T]he general rule is that an assertion in a judicial proceeding of an adverse claim, even though such a proceeding may have been terminated without a decree on the merits, will constitute a cloud on title which may be removed or confirmed in an equitable proceeding brought for that purpose.

Stark v. Frayer, 67 So.2d 237, 239 (Fla.1953).

The circuit court agreed with the bank’s argument. In its order dismissing with prejudice the buyer’s quiet title action, the court reasoned that the litigation privilege barred the quiet title action because it was based entirely on actions and statements which occurred during the foreclosure action.

This appeal followed. The buyer argues that the circuit court erred in finding that the litigation privilege barred the quiet title action. Our review is de novo. See Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (“A trial court’s order granting a motion to dismiss is reviewed de novo.”); DelMonico v. Traynor, 116 So.3d 1205, 1211 (Fla.2013) (the issue whether the litigation privilege applies “is a pure question of law, subject to de novo review”).

For two reasons, we agree with the buyer that the litigation privilege did not bar the quiet title action.

First, Florida case law currently applies the litigation privilege to bar actions arising from “misconduct [which] constitutes a common-law tort or a statutory violation.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 384 (Fla.2007). No Florida case has applied the litigation privilege to bar a quiet title action. Although the bank cites Echevarria for the proposition that the litigation privilege “applies across the board to actions in Florida,” id., a closer reading of Echevarria reveals that our supreme court simply was extending the litigation privilege to include not just common law torts, but also misconduct constituting statutory violations. See id. (“[There is] no reason why ... [the] rationale [behind the litigation privilege] would be limited by whether the misconduct constitutes a common-law tort or a statutory violation.”).

Second, the litigation privilege would not serve its intended purpose by barring the owner’s quiet title action. The purpose of the litigation privilege is to “free [participants in litigation] to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.” Id. (quoting Levin, 639 So.2d at 608). In the owner’s quiet title action, however, the bank would not have to defend its actions in the prior foreclosure action. The bank would have to defend only the validity of the mortgage upon which it based its foreclosure action, if it even chooses to do so given its voluntary dismissal of its foreclosure action. See Fla. R. Civ. P. 1.420(f) (2012) (“If a notice of lis pendens has been filed in connection with a claim for affirmative relief that is dismissed under this rule, the notice of lis pendens connected with the dismissed claim is automatically dissolved at the same time.”).

Based on the foregoing, we reverse the circuit court’s dismissal with prejudice of the buyer’s quiet title action, and remand for further proceedings as to that action. We take no position on the merits of the buyer’s quiet title action, other than recognizing, as the bank argues, that some of the buyer’s allegations within the action may be irrelevant and superfluous to stating a quiet title action. We affirm the dismissal with prejudice of the buyer’s actions against the bank for nuisance and slander of title without further discussion.

Affirmed in part, reversed in part, and remanded for further proceedings.

STEVENSON and MAY, JJ„ concur.


text:
    Eric MELVIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4323.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.
    Eric Melvin, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm without further comment the summary denial of grounds one and two of appellant’s pro se rule 3.850 motion for postconviction relief. We reverse the summary denial as to ground three and remand to the trial court with directions to either hold an evidentiary hearing as to that ground or attach portions of the record, if any exist, refuting the claim that trial counsel acted ineffectively in allowing appellant to plead no contest to a charge not supported by an adequate factual basis. See Harris v. State, 32 So.3d 197 (Fla. 4th DCA 2010); Silverstein v. State, 985 So.2d 635 (Fla. 4th DCA 2008); see also State v. Tucker, 761 So.2d 1248, 1249 (Fla. 2d DCA 2000) (in DWLSR prosecution under section 322.34, actual physical control is an element of the offense); State v. Bostick, 751 So.2d 780, 780 (Fla. 5th DCA 2000) (same).

Affirmed in part, reversed in part, and remanded with directions.

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


author: DAMOORGIAN, C.J.

text:
    Elyse FICHTEL, Appellant, v. Marc FICHTEL, Appellee.
    No. 4D13-813.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.

      Harry M. Hipler of Harry Hipler, P.A., Dania Beach, for appellant.
    Marc Fichtel, Dania, pro se.
   DAMOORGIAN, C.J.

Elyse Fichtel (“Former Wife”) appeals the final judgment of dissolution ending her marriage to Marc Fichtel (“Former Husband”). Though Former Wife raises a number of issues on appeal, we write only to address her claims concerning alimony and attorney’s fees. We reverse the trial court’s ruling on Former Wife’s claim for attorney’s fees and affirm on all other issues.

This case arises from the dissolution of a long-term marriage of almost nineteen years. At trial, the parties disputed whether Former Wife was entitled to du-rational or permanent alimony. Central to the alimony issue was the parties’ respective earning potential; specifically, Former Wife’s employability. It was undisputed that Former Husband earned approximately $200,000 per year. Although Former Husband was the primary wage earner, Former Wife held a teaching position with the School Board of Broward County until 2004. When Former Wife left her position, Former Husband did not agree that she would never return to work, and to his knowledge, no doctor ever determined that Former Wife was incapable of returning to work. According to Former Wife, however, she left her teaching position for health reasons.

In addition to their own testimony about the Former Wife’s employability, both parties presented testimony from vocational counselors. Former Husband’s vocational counselor opined that Former Wife could reasonably expect to earn $10 to $15 an hour if she returned to the workforce. Former Wife’s vocational counselor opined that based on her medical condition and her role as caregiver to the parties’ minor children, Former Wife is one hundred percent unemployable. The trial court awarded Former Wife durational alimony for a period of fifteen years at a rate of $4,200 per month. Regarding Former Wife’s claim for payment of her attorney’s fees, the trial court also heard testimony from Former Wife’s counsel about the fees she incurred during this case. The trial court recognized that Former Wife was entitled to all or a portion of her attorney’s fees and ultimately awarded her half.

Alimony Award

Former Wife argues that the trial court erred in awarding her durational alimony instead of permanent alimony. We review a trial court’s decision on whether to award permanent periodic alimony for abuse of discretion. Hornyak v. Hornyak, 48 So.3d 858, 861 (Fla. 4th DCA 2010).

The decision to award alimony is based on the trial court’s factual determination of one spouse’s need and the other spouse’s ability to pay. See § 61.08(2), Fla. Stat. (2011). Once the trial court makes a finding as to need and ability to pay, section 61.08, Florida Statutes, sets forth a non-exhaustive list of factors for the trial court to consider in determining the proper type and amount of alimony to award. Id. There is a rebuttable presumption that a marriage lasting more than seventeen years is a long-term marriage. § 61.08(4), Fla. Stat. There is also a re-buttable presumption that permanent alimony is appropriate after a long-term marriage. Motie v. Motie, 132 So.3d 1210, 1213 (Fla. 5th DCA 2014). Durational alimony, on the other hand,

may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis.

§ 61.08(7), Fla. Stat. (emphasis added).

Though it is undisputed that this case involves a long-term marriage, the trial court found that “durational alimony is warranted and that no other form of alimony is appropriate.” We hold that this was not an abuse of discretion. The Final Judgment indicates that the trial court considered each of the factors enumerated in section 61.08(2) when fashioning the alimony award. It is apparent from the Final Judgment that the trial court questioned Former Wife’s claim that she was unable to work due to illness and believed that her voluntary unemployment negated her need for support on a permanent basis.

The trial court is granted considerable discretion with regard to an alimony award and we are loathe to second guess the trial court’s ruling where, as here, the statutory factors were considered. See Dawson v. Dawson, 948 So.2d 1026, 1026 (Fla. 5th DCA 2007) (quoting Deakyne v. Deakyne, 460 So.2d 582, 583 (Fla. 5th DCA 1984)) (“ ‘It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence.’ ”) Moreover, the trial court’s findings were sufficient to rebut the presumption favoring permanent alimony. Cf. Stephens v. Stephens, 807 So.2d 700, 701 (Fla. 2d DCA 2002) (trial court’s finding that former wife has the ability to work full-time rebutted the presumption of entitlement to permanent periodic alimony). Thus, we affirm the Final Judgment with respect to the durational alimony award.

Attorney’s Fees Award

Next, Former Wife argues that based on the significant disparity between the parties’ incomes, the trial court erred in awarding Former Wife only fifty percent of her attorney’s fees and costs. We hold that the trial court’s vague findings on the issue of attorney’s fees precludes any meaningful review of this issue and reverse.

The standard of review for an attorney’s fees award is abuse of discretion. See Campbell v. Campbell, 46 So.Bd 1221, 1222 (Fla. 4th DCA 2010). The purpose of awarding attorney’s fees in a dissolution proceeding is to make sure that each spouse has equal access to competent legal counsel. Ondrejack v. Ondrejack, 839 So.2d 867, 872 (Fla. 4th DCA 2003) (citing Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997)). An award of attorney’s fees and costs is based on each spouse’s respective need and ability to pay. Conlan v. Conlan, 43 So.3d 931, 933-34 (Fla. 4th DCA 2010) (quoting Patterson & Maloney v. Gumberg, 828 So.2d 403, 405 (Fla. 4th DCA 2002)).

“It can be an abuse of discretion to grant only a partial attorney’s fee award where, on balance, there is a substantial disparity between the parties’ incomes. But the trial court cannot award fees based solely on disparity of income.” Arena v. Arena, 103 So.3d 1044, 1046 (Fla. 2d DCA 2013) (citations omitted); see also Margulies v. Margulies, 645 So.2d 54, 54 (Fla. 4th DCA 1994) (reversing the trial court’s order awarding the former wife one-half of her attorney’s fees where the evidence showed that the former wife would have to invade her capital assets to pay the balance but the former husband had the ability to pay all of the fees and costs without invading any assets).

It is critical that the trial court makes “specific findings of fact — either at the hearing or in the written judgment— supporting its determination of entitlement to an award of attorney’s fees and the factors that justify the specific amount awarded.... [Vjague findings present an obstacle to meaningful appellate review.” Arena, 103 So.3d at 1046-47 (citations omitted) (reversing the order requiring the former husband to pay only sixty percent of the former wife’s attorney’s fees where the court failed to make factual findings justifying the specific amount awarded).

Here, the trial court determined that Former Husband was responsible for only fifty percent of Former Wife’s attorney’s fees. The final order on fees merely indicates that this percentage was appropriate “[biased on the income of [Former] Husband and the support payments made to [Former] Wife.” The only other factual finding made at the hearing and in the final order was that the fees due to Former Wife’s counsel were reasonable. While the trial court may have had a legitimate rationale in mind for the fifty percent attorney’s fee award, it did not address the substantial disparity between the parties’ incomes or provide specific factual findings justifying the amount of the award. Accordingly, we “reverse the trial court’s fee order and remand with directions that the trial court reconsider fees and make findings of fact sufficient to permit review of its decision.” See Arena, 103 So.3d at 1047.

Affirmed in part, Reversed in part and Remanded.

GROSS and KLINGENSMITH, JJ„ concur.

      . Although the petition for dissolution of marriage was filed in January 2010, the 2011 version of section 61.08 applies in this case because the Final Judgment containing the initial alimony award was entered on October 2, 2012. See Ch. 2011-92, § 80, Laws of Fla. (providing that the 2011 amendments to section 61.08 apply "to all initial awards of alimony entered after July 1, 2011”); see also Margaretten v. Margaretten, 101 So.3d 395, 396 n. 1 (Fla. 1st DCA 2012) (applying the 2011 version of 61.08 because although petition for dissolution was filed in 2009, the final judgment containing the initial alimony award was entered in November 2011).


text:
    Joanne I. AQUILINA, Appellant, v. Vincent A. AQUILINA, Appellee.
    No. 4D13-917.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.
    Michael D. Cirullo, Jr., of Goren, Cherof, Doddy & Ezrol, P.A., Fort Lauderdale, Jason Brodie and Joshua K. Friedman of Brodie & Friedman, P.A., Boca Raton, for appellant.

      John T. Christiansen, Jr. of Law Offices of John T. Christiansen, P.L., West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

This is an appeal from a Final Judgment of Dissolution of Marriage where Joanne Aquilana (“Former Wife”) challenges the trial court’s distribution of the marital assets and alimony award to Vincent Aquili-na (“Former Husband”). We affirm the court’s equitable distribution of the parties’ assets without further discussion. We reverse and remand Former Husband’s alimony award.

The parties were married in 1992 and Former Wife filed for divorce in November 2011. During the course of their marriage, Former Wife was the primary breadwinner, and made a substantial income. Former Husband contributed to the family finances as well, but his work as a home inspector was not steady and his income varied greatly. The parties acquired several assets during the course of their marriage, including a home, two parcels of land in North Carolina, their respective vehicles, and significant retirement savings. The marital home was encumbered by a mortgage which was almost paid off at the time of the dissolution proceedings and a home equity line of credit (“HE-LOC”). Former Husband also owed money on his vehicle.

The parties agreed to equitable distribution of their assets and that Former Husband was entitled to permanent alimony, but disputed the manner of distribution and the proper alimony award. Both parties agreed that Former Husband would take the marital home and his vehicle, but Former Wife requested to have the debt attached to the marital home and to Former Husband’s vehicle distributed to her so that the monthly payments on the debts would not be incorporated into Former Husband’s alimony award. Former Husband, on the other hand, wanted all of the debt allocated to him and argued that the court should consider the monthly expense of paying off the debt when fashioning his alimony award.

Ultimately, the court allocated the debt associated with Former Husband’s vehicle to Former Wife, but awarded Former Husband the marital home as well as the corresponding mortgage and HELOC debt. Accordingly, the court allotted for payment of the mortgage and HELOC in Former Husband’s alimony award. Regarding the alimony award, the court found as follows:

[I]n the event the Husband pays off his mortgage or some other significant item of expense of his no longer exists, nothing herein is a determination that such a change in circumstance is not anticipated.

On appeal, Former Wife argues that the trial court erred by allocating the mortgage payment in Former Husband’s alimony award because the mortgage was scheduled to be paid off in the near-term. She also argues that the above quoted language from Paragraph 83 of the final judgment sets forth a standard for modification which runs contrary to established law. We disagree with Former Wife’s allocation argument, but agree that the trial court included an improper standard for modification in its final judgment.

“The trial court’s award of alimony is subject to an abuse of discretion standard of review, and where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded, the appellate court will reverse the award.” Farley v. Farley, 858 So.2d 1170, 1172 (Fla. 2d DCA 2008) (citation omitted).

“Generally, it is error to provide for an automatic, future change or termination of alimony based upon the anticipated occurrence of a future event.” Loss v. Loss, 714 So.2d 1098, 1094 (Fla. 4th DCA 1998). This is because an alimony award based on a future occurrence rather than a present circumstance improperly shifts the burden of proof at a subsequent modification hearing. See Kernan v. Kernan, 495 So.2d 275, 275 (Fla. 5th DCA 1986). However, there is an exception to this rule. As we explained in Loss: “[A]n automatic reduction would not be improper where the evidence supports a finding that the receiving spouse’s financial position will in fact change in the future.” 714 So.2d at 1094.

Former Wife relies on cases citing this exception in support of her position. Id. (affirming portion of court’s alimony award providing for an automatic future reduction of alimony upon satisfaction of mortgage); Elbaum v. Elbaum, 86 So.3d 1272, 1273 (Fla. 4th DCA 2012) (affirming alimony award which provided for automatic reduction upon satisfaction of mortgage). While the cases relied on by Former Wife stand for the proposition that the court could have provided for automatic reduction of Former Husband’s alimony upon satisfaction of the mortgage, they do not stand for the proposition that the court was required to do so. Rather, it was well within the court’s discretion to award alimony based on the parties’ needs at the time of the dissolution. Italiano v. Italiano, 873 So.2d 558, 559 (Fla. 2d DCA 2004); Hollinger v. Hollinger, 684 So.2d 286, 288 (Fla. 3d DCA 1996); Kernan, 495 So.2d at 275. As Former Husband established that he was obligated to pay the mortgage at the time his alimony award was fashioned, we hold that the court did not abuse its discretion in allocating for the mortgage payment, and thus affirm the amount of the trial court’s alimony award to Former Husband.

The language contained in Paragraph 33, on the other hand, is problematic. As set forth above, the trial court provided that “in the event the Husband pays off his mortgage or some other significant item of expense of his no longer exists, nothing herein is a determination that such a change in circumstance is not anticipated.” (emphasis added). Translated from the double negative, the trial court essentially ruled that it anticipated Former Husband would pay off his mortgage and/or other significant items of expense.

The well-established law regarding modification of an alimony award is that “[i]n order to modify an alimony award, a movant must show: 1) a substantial change of circumstances; 2) that the change was not contemplated at the time of the final judgment; and 3) that the change is sufficient, material, involuntary, and permanent in nature.” Mendes v. Mendes, 947 So.2d 450, 452 (Fla. 4th DCA 2006). Accordingly, based on the language contained in Paragraph 33, Former Wife cannot move to modify her alimony obligations when Former Husband pays off the mortgage or any other large expense (such as the HELOC) because such changes in circumstances were expressly anticipated by the court at the time it made its alimony award. See Penland v. Penland, 442 So.2d 1054, 1055 (Fla. 1st DCA 1983) (“Alimony may not be modified for anticipated changes in circumstances.”). This result is patently inequitable.

Our holding in Wolfe v. Wolfe, 953 So.2d 632, 635 (Fla. 4th DCA 2007), is instructive. There, during dissolution proceedings the husband argued that the trial court should not award his wife the full cost of maintaining the marital home (in-eluding mortgage payments) as part of her permanent alimony because the parties were planning on selling the marital home in the near future, and thus the wife’s expenses would be reduced once the sale was complete. Id. at 633. The court declined to speculate on the wife’s future expenses after the sale of the home and included the expenses associated with the marital home in the wife’s award. Id. After the home sold, the husband moved to modify the alimony award on the basis that the wife’s needs decreased. Id. The court denied the husband’s motion, refusing to consider the sale of the marital home as a reason for modification because the sale was contemplated in the final judgment. Id. at 634. On appeal, this Court reversed. In doing so, we first examined the “change not contemplated at the time of the final judgment” requirement for modification, explaining:

The reason for this doctrine is an obvious one: if the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award in question, it would be grossly unfair subsequently to change the result simply because the anticipated event has come to pass.

Id. at 634-35 (quoting Mendes, 947 So.2d at 452).

We then noted that by providing wife with sums to cover the entire cost of maintaining the marital home in its alimony award, “the trial court refused to consider the likely reduction of the wife’s expenses once the marital home was sold.” Id. at 635. Based on this, we held: “Because the former wife’s needs after obtaining her new residence were not considered in the fixing of the award, we conclude that the court erred in failing to consider the sale of the marital home and related reduction of expenses as a ground for modification.” Id.

Here, the language included by the court in its alimony award ensures the exact result we admonished in Wolfe. By awarding Former Husband alimony to cover the monthly expense of the mortgage and HELOC, the court effectively refused to consider the likely reduction of Former Husband’s expenses once the loans were paid off. Because the court’s award had the effect of ignoring Former Husband’s probable future change in circumstances, it was improper and paradoxical for it to state that, at the same time, it did anticipate such future changes. Accordingly, we reverse and remand the trial court’s final judgment with instructions to remove Paragraph 33.

Affirmed in part, Reversed in part and Remanded.

GROSS and KLINGENSMITH, JJ., concur.


author: VILLANTI, Judge.

text:
    T. Patton YOUNGBLOOD, Appellant/Cross-Appellee, v. Rosalina VILLANUEVA, as Personal Representative of the Estate of Eduardo Villanueva, Deceased, Appellee/Cross-Appellant.
    No. 2D12-4724.
    District Court of Appeal of Florida, Second District.
    May 21, 2014.
    Rehearing Denied June 30, 2014.

      T. Patton Youngblood, Jr., of Young-blood Law Firm, St. Petersburg, for Appellant/Cross-Appellee.
    Kennan G. Dandar of Dandar & Dandar, P.A., Tampa, for Appellee/Cross-Appel-lant.
   VILLANTI, Judge.

T. Patton Youngblood appeals the judgment entered in a wrongful death action following a jury trial. The Estate of Eduardo Villanueva (the Estate) filed a cross-appeal. We affirm without comment the issues raised on direct appeal and two of the four issues raised on cross-appeal. However, we reverse and remand for further proceedings on the cross-appeal issue wherein the trial court improperly applied section 324.021(9)(b)(3), Florida Statutes (2002), to limit Youngblood’s liability for noneconomic damages at $100,000. We also reverse and remand for further proceedings on the cross-appeal issue wherein the trial court improperly set off the settlement amounts received from the other defendants against the noneconomic damages awarded to the Estate pursuant to sections 46.015 and 768.041, Florida Statutes (2002).

The Estate filed a wrongful death action against Extreme Auto Sales, Maria Vega, Teddy Aponte, Fisher Auto Sales, Youngblood, and his ex-wife, Angela Youngblood. Prior to trial, the Estate reached settlements with all the remaining defendants except Youngblood. The total amount of those pretrial settlements was $78,000. The Estate received a PIP benefit for wrongful death damages in an amount of $5,000.

The testimony at trial established that Youngblood consigned his uninsured vehicle to Teddy Aponte of Extreme Auto Sales with instructions to sell the vehicle. Youngblood testified that he never wanted to see the vehicle again after he handed the keys to Aponte, and he gave him no time limit in which to sell the vehicle. Because Aponte was driving the vehicle for his personal use when he struck and killed Eduardo Villanueva, Youngblood contended that this constituted a theft or conversion which exempted him from liability. However, the jury specifically rejected this contention as part of its interrogatory verdict.

The jury verdict also awarded the Estate $9,043.75 in economic damages for funeral and cemetery expenses and $190,000 in noneconomic damages for the pain and suffering sustained by Rosalina Villanueva as a result of her husband’s death. Youngblood thereafter sought a setoff of the pretrial settlement amounts against the overall verdict of $199,043.75. The trial court determined that the non-economic damage portion of the $78,000 of the pretrial settlements was $74,462, which the trial court deducted from the $190,000 jury award for noneconomic damages. The trial court capped those damages at $100,000 by applying section 324.021(9)(b)(3). The trial court then reduced the $9,043.75 in economic damages by the amount of the economic damages portion of the pretrial settlements, which was $3,538, and further reduced the amount by the $5,000 PIP payout, for a total amount of $505.75 in economic damages. These calculations are reflected in the final judgment entered by the trial court.

The trial court based its decision to cap noneconomic damages by applying section 324.021(9)(b)(3) which provides:

The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the owner for economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self-insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.

(Emphasis added.) In the judgment, the trial court found that although “there was not a direct ‘loan’ from the vehicle owner to the vehicle operator,” Youngblood was still liable for the acts of Aponte under the dangerous instrumentality doctrine, and therefore, in its opinion, section 324.021(9)(b)(3) still applied. Because the issue of whether a setoff is applicable hinges on whether a loan, directly or indirectly, occurred in this case, we turn to precedent from this court for guidance.

In Ortiz v. Regalado, 113 So.3d 57 (Fla. 2d DCA 2013), Dolores Claudio Ortiz and his son Andy shared title to a vehicle. Id. at 58-59. While driving the vehicle, Andy was involved in a fatal collision. Id. at 59. Ortiz argued on appeal that the limitation on liability under section S24.021(9)(b)(3) was applicable to him because the vehicle was negligently operated by a co-owner. Id. at 59-60. This court rejected this argument, noting that the word “loan” was not defined in the statute, but also finding that there was no clear intent of the legislature to give it a different meaning as between co-owners. Id. at 61. Importantly, the court looked to the definition of “loan” in section 265.565(2)(b), Florida Statutes (2012), for guidance:

Cf. § 265.565(2)(b), Fla. Stat. (2012) (defining “[l]oans,” “loaned,” or “on loan” as referring “to property in possession of the museum not accompanied by a transfer of title to the property or accompanied by evidence that the lender intended to retain title to the property and to return to take physical possession of the property in the future”) (emphasis added).

Id. at 60 n. 4.

Similarly here, although Youngblood did not transfer title to the vehicle and he did not intend to retake possession, assuming a sale were to occur, under the logic of Ortiz, this scenario does not constitute the type of “loan,” directly or indirectly, that would activate the provisions of section 324.021(9)(b)(3). In fact, Youngblood claimed that at the time of the accident Aponte was not even a permissive user but had stolen or converted the vehicle to his personal use. Therefore, giving the statutory words their plain meaning and factoring in the jury’s finding of no theft or conversion, Aponte’s possession of the vehicle could only emanate from a commercial consignment. Hence, section 324.021(9)(b)(3) is not applicable, and the trial court erred in applying it to cap non-economic damages at $100,000. Accordingly, we reverse that portion of the judgment and remand for the trial court to enter an amended final judgment in accordance herewith. .

Lastly, the trial court erred in setting off the settlement amounts received from the other defendants against the non-economic damage award pursuant to sections 46.015 and 768.041. Section 46.015(2) states the following:

At trial, if any person shows the court that the plaintiff, or his or her legal representative, has delivered a written release or covenant not to sue to any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment.

However, the supreme court in Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249, 253 (Fla.1995), specifically held that sections 46.015 and 768.041 do not apply to noneconomic damages. We therefore reverse that portion of the judgment setting off the settlement amounts against the noneconomic damages award and remand for the trial court to enter an amended final judgment in accordance herewith.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

CRENSHAW and MORRIS, JJ„ Concur.

      . The trial court granted Angela Youngblood’s motion for summary judgment on the basis that she was not liable under the mere naked title holder exception to the dangerous instrumentality doctrine, which this court affirmed in Youngblood v. Villanueva, 57 So.3d 859 (Fla. 2d DCA 2011) (table decision).

      . This issue became a jury question after this court reversed the summary judgment entered in favor of Youngblood, holding, inter alia, that there were genuine issues of material fact concerning whether Aponte’s use of the vehicle constituted a theft or conversion. Estate of Villanueva v. Youngblood, 927 So.2d 955, 959-60 (Fla. 2d DCA 2006).

      . Ortiz issued after the notice of appeal was filed in this case, and it was not available to the trial court when it rendered judgment.

      . Section 768.041(2) contains slightly different terminology but is the same in substance.


author: NORTHCUTT, Judge.

text:
    Albert SABBAG, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1545.
    District Court of Appeal of Florida, Second District.
    May 21, 2014.
   NORTHCUTT, Judge.

The postconviction court dismissed Albert Sabbag’s motion filed under Florida Rule of Criminal Procedure 3.850, positing that the pendency on appeal of an order denying Mr. Sabbag’s previously filed rule 3.800(a) motion divested the postconviction court of jurisdiction. The dismissal was correct as to ground one, albeit for the wrong reason, because that claim was untimely filed. But we reverse the dismissal of claims two and three, which alleged ineffective assistance of counsel for failure to preserve Sabbag’s entitlement to credit for time served on probation and community control and for out-of-state jail credit, because the postconviction court had jurisdiction over those claims.

In Bryant v. State, 102 So.3d 660 (Fla. 2d DCA 2012), this court, sitting en banc, recently considered the issue of the concurrent jurisdiction in the appellate and circuit courts when a second postconviction motion alleges grounds unrelated to those considered in a first postconviction motion that is the subject of a pending appeal. We concluded that the postconviction court has the authority either to dispose of the second motion or to defer ruling and stay it, notwithstanding the pendency of the appeal of an order on the first motion. Id. at 666. In any event, the posteonviction court should not dismiss the motion but should accept the filing to “protect!] the defendant from the risk of procedural default under the two-year limit.” Id. at 665.

As it turns out, Mr. Sabbag’s appeal of the denial of his rule 3.800(a) motion was affirmed by this court just a few weeks after the postconviction court dismissed the current motion, see Sabbag v. State, 106 So.3d 940 (Fla. 2d DCA 2013) (table decision), thus removing any potential impediment to ruling on the rule 3.850 motion. Accordingly, on remand, the postcon-viction court shall consider the merits of claims two and three.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and SLEET, JJ„ Concur.

      . This opinion should not be construed as a predetermination that either claim has actual merit.


author: BLACK, Judge.

text:
    Marcia M. SNELL and Bruce Snell, Petitioners, v. MOTT’S CONTRACTING SERVICES, INC., Respondent.
    No. 2D13-2836.
    District Court of Appeal of Florida, Second District.
    May 21, 2014.
    Rehearing Denied July 9, 2014.

      Marcia M. Snell and Bruce Snell, pro se.
    Laura Datz and Michael Laurato of Austin & Laurato, P.A., Tampa, for Respondent.
   BLACK, Judge.

In this second-tier certiorari proceeding, Marcia and Bruce Snell challenge the circuit court’s order which reversed the county court’s order denying attorney’s fees to Mott’s Contracting Services, Inc. (Mott’s Contracting). The circuit court departed from the essential requirements of the law in concluding that Mott’s Contracting is entitled to attorney’s fees pursuant to the Construction Lien Law and that the arbitrator had the authority to make such a fee entitlement determination. Therefore, we grant the petition for writ of certiorari and quash the circuit court’s order.

I. Background

Marcia and Bruce Snell entered into a contract with Mott’s Contracting to perform remodeling work in their home. The contract contained a provision that provided for arbitration to resolve all disputes but did not contain a provision for the payment of attorney’s fees. Following a dispute between the parties and a failed attempt to negotiate, Mott’s Contracting recorded a claim of lien on March 16, 2011. The Snells filed a complaint in county court on March 30, 2011, contesting, in part, the validity of the lien, and in response thereto, Mott’s Contracting moved to dismiss or stay the action. The Snells then filed a notice of contest of hen pursuant to section 713.22(2), Florida Statutes (2010), reducing the prescribed time for Mott’s Contracting to file suit to enforce the lien from one year to sixty days. It is undisputed that Mott’s Contracting never filed a lien enforcement action in the court.

Following a hearing, the county court granted Mott’s Contracting’s motion to stay the Snells’ action filed in county court and compelled arbitration pursuant to the contract’s arbitration provision. Our record as it pertains to the arbitration proceedings is very limited, as it was in both lower courts. The record does not contain the complaint or the counterclaim filed in arbitration. However, the record does contain an excerpt from a memorandum filed by Mott’s Contracting in which Mott’s Contracting specifically requested that the lien foreclosure issue and the attorney’s fees issue be submitted to the county court for resolution. Nonetheless, on November 22, 2011, the arbitrator entered a final arbitration award, determining, in pertinent part, that Mott’s Contracting had “performed all conditions precedent to foreclosing its’ [sic] claim of lien” and as such, Mott’s Contracting “is entitled to a reasonable attorney’s fee.” The award does not name a prevailing party.

Thereafter, Mott’s Contracting filed the arbitration award in the county court and moved for “the court [to] enter its order confirming the arbitration award and its final judgment determining entitlement to attorney’s fees and costs.” See §§ 682.12, .15, Fla. Stat. (2010). In response thereto, the Snells filed a motion seeking to vacate the award, alleging that the arbitrator exceeded her powers and that the arbitrator ruled upon matters not submitted to arbitration. See §§ 682.13(l)(c), .14(l)(b). Following a hearing on the Snells’ motion, the county court issued an order on January 18, 2012, confirming the arbitration award as to the amount awarded to Mott’s Contracting and the amount credited to the Snells. However, the county court further found that Mott’s Contracting was not entitled to attorney’s fees under section 713.29 because it failed to take any action to enforce the claim of lien under section 713.22 within the sixty days after the lien was contested.

Mott’s Contracting appealed the county court order to the circuit court, asserting that the county court erred in determining that the arbitrator lacked jurisdiction to determine the validity of the claim of lien and that Mott’s Contracting was not entitled to fees pursuant to section 713.29. On January 23, 2013, the circuit court reversed the decision of the county court, holding that Mott’s Contracting took the requisite action under section 713.29 because a complaint and counterclaim were timely filed in arbitration. The circuit court further held that it is within an arbitrator’s jurisdiction to “determine the prevailing party’s entitlement to attorney’s fees.” The Snells’ motions to vacate and for rehearing were denied by the circuit court.

II. Standard of Review

Our narrow standard of review in a second-tier certiorari proceeding is limited to two questions: “(1) whether the circuit court afforded the petitioner procedural due process, and (2) whether the circuit court ‘applied the correct law’ or ‘departed from the essential requirements of the law.’ ” Chmura v. Maxson, 46 So.3d 158, 159 (Fla. 2d DCA 2010) (quoting Bennett v. State, 23 So.3d 782, 786 (Fla. 2d DCA 2009)). In this case, we are only concerned with the latter question. “A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000)). A “ ‘clearly established law’ can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” Id. at 890. Though “a misapplication or an erroneous interpretation of the correct law does not rise to the level of a violation of a clearly established principle of law,” Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011), applying the incorrect law certainly does, see Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995) (citing Manatee Cnty. v. Kuehnel, 542 So.2d 1356, 1358 (Fla. 2d DCA 1989)).

III. Discussion

The circuit court departed from the essential requirements of the law when it determined that Mott’s Contracting is entitled to attorney’s fees pursuant to section 713.29 and that the arbitrator had the authority to “determine the prevailing party’s entitlement to attorney’s fees.” Attorney’s fees may only be awarded when authorized by statute or contract. Reiterer v. Monteil, 98 So.3d 586, 587 (Fla. 2d DCA 2012) (quoting State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993) (“This Court has followed the ‘American Rule’ that attorney’s fees may be awarded by a court only when authorized by statute or by agreement of the parties.”)). Further, “ ‘[t]he proper place to determine the entitlement to and amount of attorney’s fees authorized by contract or statute is in the circuit court upon application for confirmation of the [arbitrator’s] award.’ ” Higley S., Inc. v. Quality Engineered Installation Inc., 632 So.2d 615, 619 (Fla. 2d DCA 1994) (quoting Fewox v. McMerit Constr. Co., 556 So.2d 419, 422 (Fla. 2d DCA 1989) (en banc)), decision quashed in part on other grounds 670 So.2d 929 (Fla. 1996). There is no dispute that fees were not addressed by the parties’ contract. And though section 718.29 authorizes an award of attorney’s fees in the event that certain conditions are satisfied, Mott’s Contracting failed to meet all of the conditions precedent to entitlement under this statute.

Section 718.29, provides, in pertinent part, that “[i]n any action brought to enforce a lien ... under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney.” (Emphasis added.) An action to enforce a construction lien must be brought “in a court of competent jurisdiction” within one year of recording the claim of lien or it automatically extinguishes. See § 713.22(1) (emphasis added). It seems rather obvious that the term “court” means just that, and as such, does not contemplate arbitration. We will nonetheless proceed to interpret the Construction Lien Law in an abundance of caution.

“The primary rule of statutory construction is ‘to give effect to legislative intent, which is the polestar that guides the court in statutory construction.’ ” Raymond James Fin. Servs., Inc. v. Phillips, 126 So.3d 186, 190 (Fla.), revised on grant of clarification on (Nov. 7, 2013) (quoting Gomez v. Vill. of Pinecrest, 41 So.3d 180, 185 (Fla.2010)). The “legislative intent is determined first and foremost from the statute’s text.” Id. (citing Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007)). As indicated previously, section 713.22(1) requires that the action to enforce the lien be filed in a “court.” The definition section of the Construction Lien Law, section 713.01, does not define court. Importantly, however, section 713.29, which we must read in tandem with section 713.22, distinguishes arbitration and court.

To further aid in our consideration of the meaning of the term “court,” we next look to dictionary definitions. See Metro. Cas. Ins. Co. v. Tepper, 2 So.3d 209, 214 (Fla.2009) (explaining that courts may refer to a dictionary to determine the plain and ordinary meaning of a term as intended by the legislature); Barco v. Sch. Bd. of Pinellas Cnty., 975 So.2d 1116, 1122 (Fla.2008) (“It is appropriate to refer to dictionary definitions when construing statutes or rules.”). In Raymond James, the supreme court analyzed whether “an arbitration proceeding is within the statutory term ‘civil action or proceeding' found in section 95.011[, Florida Statutes].” 126 So.3d at 188. Upon review of Black’s Law Dictionary, the supreme court determined that arbitration falls within the latter part of the definition of “tribunal,” which is defined as “ ‘[a] court or other adjudicatory body.’ ” Id. at 191 (quoting Black’s Law Dictionary 1646 (9th ed. 2009)). The supreme court further noted that a “ ‘suit’ ” defined by Black’s Law Dictionary as “ ‘[a]ny proceeding by a party or parties against another in a court of lav^ ” does not include arbitration proceedings. Id. at 192 (quoting Black’s Law Dictionary 1572). It is clear from the supreme court’s analysis of these definitions that the term “court” does not include arbitration or arbitration proceedings. Further, it is an “ ‘elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute.’ ” Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1233 (Fla.2009) (quoting Gulfstream Park Racing Ass’n v. Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006)). Thus, if the legislature had intended section 713.22(1) to include arbitration, it could have easily used the term “tribunal” instead of “court.”

We finally turn to the Florida Arbitration Code, as we must “ ‘give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” See Raymond James, 126 So.3d at 192 (quoting Heart of Adoptions, 963 So.2d at 199). Section 682.18(1) provides the following definition of “court”:

[A]ny court of competent jurisdiction of this state. The making of an agreement or provision for arbitration subject to this law and providing for arbitration in this state shall, whether made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under this law, to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify or correct an award rendered thereunder for such cause and in the manner provided in this law.

It is clear that the term “court” does not refer to arbitration or an arbitration organization as the legislature has explicitly recognized “court” as a term separate and apart from “arbitration.” Further, in various sections of the Florida Arbitration Code, the legislature explicitly distinguished actions to be taken in arbitration proceedings and by an arbitrator from those to be taken in and by the court. See, e.g., §§ 682.03, .04, .06, .08-.10, .12-.14. We also note that the current definition section of the Code provides definitions of arbitration organization, arbitrator, and court; the definition of court does not include the former two terms. See § 682.011, Fla. Stat. (2013).

The Construction Lien Law “is a creature of statute and must be strictly construed.” Stunkel v. Gazebo Landscaping Design, Inc., 660 So.2d 623, 625 (Fla.1995); accord Home Electric of Dade Cnty., Inc. v. Gonas, 547 So.2d 109, 110 (Fla.1989). It is undisputed that Mott’s Contracting failed to file an action to enforce the claim of lien in the court. As such, Mott’s Contracting failed to satisfy the requirements of section 713.22 and is therefore not entitled to attorney’s fees under section 713.29. Thus we agree with the county court’s finding that, despite the arbitrator’s determination, “Mott’s [Contracting] did not take any action to enforce any claim of lien under F.S. 713.22(2) within the 60 days after the lien was contested.” As such, certiorari relief is appropriate. See, e.g., Dade Cnty. v. Grossman, 354 So.2d 131, 132 (Fla. 3d DCA 1978) (granting certiorari relief where the circuit court granted attorney’s fees absent authorization by contract or statute).

IV. Conclusion

The arbitrator lacked authority to determine entitlement to fees, and the award of fees pursuant to section 713.29 was not authorized because Mott’s Contracting failed to satisfy the requirements of the statute. Further, since the lien became unenforceable pursuant to section 713.22 prior to the issuance of the award due to Mott’s Contracting’s failure to file an enforcement action in court, the arbitrator could not have determined its validity or entitlement to fees pursuant thereto. Because the circuit court’s conclusion to the contrary contravenes clearly established law, we grant the petition for writ of cer-tiorari and quash the circuit court’s order.

Petition granted; order quashed.

CASANUEVA and CRENSHAW, JJ., Concur.

      . §§ 713.001-.37, Fla. Stat. (2010).

      . The county court’s decision was based on the undisputed fact that Mott's Contracting failed to commence an action in court to foreclose the lien; the county court also questioned the arbitrator's authority to determine entitlement to fees. The county court did not address the disputed issue of whether Mott’s Contracting's counterclaim was timely filed.

      . The Snells raised a due process issue relating specifically to Mott's Contracting’s failure to provide the circuit court with a transcript of the county court proceeding. Since the circuit court permitted the Snells to file the transcript before reaching a decision on their motion for rehearing, and since our decision hinges on the latter question addressed in a second-tier certiorari proceeding, this issue is moot.

      . The parties may expressly waive the statutory right to have the court determine entitlement to fees expressed in section 682.11. Tumberry Assocs. v. Serv. Station Aid, Inc., 651 So.2d 1173, 1175 (Fla.1995) ("The arbitrator has no authority to award fees absent an express waiver of this statutory right.”); A-1 Duran Roofing, Inc. v. Select Contracting, Inc., 865 So.2d 601, 604 (Fla. 4th DCA 2004) ("Neither entitlement to attorney’s fees, nor amount, are issues that the arbitrator may decide without the agreement of the parties.”). However, there was no finding of express waiver and the circuit court’s decision is not based on such.

      . The Snells shortened this prescribed period to sixty days pursuant to section 713.22(2).

      . See Barco v. Sch. Bd. of Pinellas Cnty., 975 So.2d 1116, 1121-22 (Fla.2008) ("‘[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984))); see, e.g., Brookshire v. GP Constr. of Palm Beach, Inc., 993 So.2d 179, 180 (Fla. 4th DCA 2008) (holding that the lienor’s motion to arbitrate filed in response to a complaint to discharge the lien did not meet the requirement of section 713.21(4) that an action to enforce the lien be commenced within twenty days); GCA, Inc. v. 90 S.W. 8th St. Enters., Inc., 696 So.2d 1230, 1233 (Fla. 3d DCA 1997) (acquiescing with the appellant’s explanation that "in order to perfect a construction lien, a lien claimant must commence its action in state court within one year of recording its claim of lien” despite the fact that the contract claim was properly submitted to arbitration pursuant to the contract terms).

      . §§ 682.01-22, Fla. Stat. (2010).


text:
    Michael EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1892.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Michael Edwards, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, PADOVANO, and RAY, JJ., concur.


text:
    Terrance Ladell WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4590.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
    Rehearing Denied July 15, 2014.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Terrance Willis, appeals the trial court’s order revoking his probation and sentencing him to ninety months’ imprisonment. We reverse.

After pleading guilty to felony escape, appellant was sentenced to five years in prison followed by eighteen months of probation. Seventeen months after his release from prison, the state charged appellant with violating three conditions of his probation.

After a violation of probation hearing, the trial court found appellant violated the three conditions and sentenced appellant to ninety months’ imprisonment. Thereafter, appellant filed a Rule 3.800(b) motion to correct his sentence and, in response, the trial court issued an order finding that appellant violated only Condition 4 of his probation. Condition 4 required appellant to pay court costs in the amount of $1,008.00. On appeal, appellant argues that the state failed to present sufficient evidence to show he had an ability to pay the court costs.

In revocation proceedings involving monetary obligations, the burden is on the state to present sufficient evidence showing that the probationer had the ability to pay. Del Valle v. State, 80 So.3d 999, 1011 (Fla.2011) (finding a “probationer’s ability to pay is an element of willfulness in the context of determining whether there is a willful violation for failure to pay a monetary obligation as a condition of probation”). Such evidence may include a showing that the probationer failed to make “bona fide” efforts to gain employment and/or legally acquire the resources to pay. See Clark v. State, 510 So.2d 1202, 1203-04 (Fla. 2d DCA 1987) (quoting Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), and § 948.06(4), Fla. Stat. (1985)).

At appellant’s revocation hearing, the state presented the testimony of appellant’s probation supervisor. She testified that she instructed appellant to secure employment and gave him information ostensibly to help him with employment. However, she did not monitor appellant’s employment because he was on administrative probation, and she did not know his employment status.

Appellant testified that he constantly searched for jobs online and unsuccessfully applied for work at grocery stores and a juice plant in his hometown. He explained that his ability to secure employment was hampered by his lack of transportation and his felony convictions. Appellant did not have a driver’s license and could not find rides to jobs outside of his hometown.

The state did not present any evidence to refute appellant’s testimony, and the evidence presented was insufficient to show that appellant did not make a bona fide effort to obtain employment. See Costello v. State, 567 So.2d 1032, 1033 (Fla. 4th DCA 1990) (finding that appellant’s uncontroverted testimony regarding his inability to pay “cannot arbitrarily totally be rejected” where “there is nothing in the record to support a conclusion that appellant ought not be believed”).

As such, the state did not meet its burden of showing that appellant willfully failed to pay the court costs, and the trial court’s finding of willfulness was not based on the greater weight of the evidence. See Del Valle, 80 So.3d at 1012. For this reason, we reverse the order of revocation and the sentence that was imposed as a result of the revocation order.

Reversed and remanded.

WARNER and LEVINE, JJ„ and TUTER, JACK, Associate Judge, concur.