text:
    Michael L. TUBBS and Raymond A. Tubbs, Appellants, v. MECHANIK NUCCIO HEARNE & WESTER, P.A., substituted as real party in interest for RC Highlands Holdings of Florida, Inc.; and Wachovia Bank, N.A., n/k/a Wells Fargo Bank, N.A., Appellees.
    No. 2D12-1177.
    District Court of Appeal of Florida, Second District.
    July 26, 2013.
    Rehearing Denied Oct. 21, 2013.

      Steven L. Brannock of Brannock & Humphries, Tampa, and Warwick R. Furr, II, Avon Park, for Appellants.
    Richard W. Candelora and J. Meredith Wester of Mechanik Nuccio Hearne & Wester, P.A., Lutz, for Appellee, Mechanik Nuccio Hearne & Wester, P.A.
    James A. Bolling of Smith Hulsey & Busey, Jacksonville, for Appellee, Wells Fargo Bank, N.A.
   WALLACE, Judge.

Michael L. Tubbs and Raymond A. Tubbs (collectively, the Tubbses) challenge an award of attorney’s fees and taxable costs against them and in favor of Me-chanik Nuccio Hearne & Wester, P.A. (Mechanic Nuccio), the assignee of RC Highlands Holdings of Florida, Inc. (RC Highlands). The trial court determined that RC Highlands was the prevailing party for the purpose of an award of attorney’s fees under the parties’ agreement after the Tubbses dismissed their foreclosure claims against RC Highlands. Because the trial court abused its discretion in determining that RC Highlands became the prevailing party upon the Tubbses’ dismissal of claims that had become moot for reasons unrelated to the merits of the litigation and because such a determination was premature, we reverse the fee award. We approve the award of taxable costs in favor of Mechanik Nuccio. Nevertheless, we also hold that the trial court erred in failing to set off a portion of the judgment held by the Tubbses against the amount of the taxable costs that it awarded to Mechanik Nuccio.

I. THE FACTS AND PROCEDURAL BACKGROUND

In June 2006, the Tubbses entered into a Stock Purchase Agreement under which they sold their stock in Tu-Co Peat, Inc. (Tu-Co), and Ram Peat, Inc. (Ram), to RC Highlands for $16,000,000. Among the assets of Tu-Co and Ram was real property containing peat reserves. The real property is located in Highlands County. As security for part of the purchase price, the Tubbses each received a promissory note for one million dollars. The Tubbses secured their notes with mortgages on the Tu-Co property and the Ram property. RC Highlands was the maker on the promissory notes; Richard Hudec and Lisa Hu-dec of RC Highlands guaranteed the pay^ ment of the notes. Wachovia Bank, N.A., now Wells Fargo Bank, N.A., acted as a lender to' RC Highlands in connection with the transaction. Wells Fargo also obtained a mortgage on the real property owned by Tu-Co and Ram., .

At this point, we note three significant facts concerning the pertinent documents. First, although it acquired no ownership interest in.the real property, RC Highlands was named as a “Mortgagor” in the Tubbses’ mortgages along with Tu-Co and Ram. Second, the Tubbses’ mortgages included an attorney’s fee provision in favor of the mortgagee. Third, the Stock Purchase Agreement contained a forum selection clause requiring any litigation “against any of the parties to. this Agreement on any dispute arising out of this Agreement or any matter related hereto” to be brought in “the State and Federal courts in Hillsborough County.” (Emphasis added.) The designation of Hillsborough County in the Stock Purchase Agreement’s forum selection clause contributed to some of the complexity of the litigation that followed because the real property is located in Highlands County.

The notes executed by RC Highlands in favor of the Tubbses went into default in 2008. After this default, the parties became embroiled in five separate actions. The Tubbses filed four of these actions in Highlands County. RC Highlands and Lisa Hudec filed the fifth action in Hills-borough County. Basic information concerning the claims asserted in each of these actions is critical to an understanding of the issues in this case. We turn now to an examination of these five actions.

The Guarantee Case. Initially, each of the Tubbses filed an action against Richard Hudec and Lisa Hudec in Highlands County on their guarantee of the promissory note made by RC Highlands and for alleged fraud. These cases, numbers GC 08-391 and GC 08-392, were consolidated. We will refer to these consolidated cases as “the guarantee case.”

The Foreclosure Case. Next, each of the Tubbses filed an action in Highlands County against RC Highlands, Tu-Co, and Ram to foreclose their mortgages on the real property. The trial court also consolidated these cases, numbers GC 08-903 and GC 08-904. We will refer to these consolidated cases as “the foreclosure case.” Although RC Highlands had no ownership interest in the real property, it was the maker of the notes and a named mortgagor. Thus the Tubbses named RC Highlands as a. defendant in the foreclosure case and requested a deficiency judgment against it. The Tubbses also joined Wells Fargo as a defendant in the foreclosure case. Wells Fargo filed a counterclaim and a cross-claim to foreclose its mortgage on the real property owned by Tu-Co and Ram.

The Hillsborough County Case. Finally, in July 2009, RC Highlands and Lisa Hudec filed an action against the Tubbses in Hillsborough County, case number 09-CA-17351. We will refer to case number 09-CA-17351 as “the Hillsborough County case.” In the Hillsborough County case, RC Highlands asserted claims against the Tubbses for violations of the Stock Purchase Agreement based on alleged environmental contamination of the mortgaged property. RC Highlands, Tu-Co, and Ram also raised these claims as defenses in the foreclosure case. The Tubbses asserted counterclaims against RC Highlands and Lisa Hudec in the Hillsborough County case.

In July 2010, the parties stipulated that the guarantee case — which was then pending in Highlands County — would be dismissed and that the Tubbses could refile the claims asserted in that action as a counterclaim in the Hillsborough County case. The trial court approved the parties’ agreement and dismissed the guarantee case in accordance with their stipulation. Shortly thereafter, the Tubbses refiled in the Hillsborough County case the claims that they had asserted in the guarantee case. The claims asserted by the Tubbses as counterclaims in the Hillsborough County case included claims against RC Highlands for breach of the promissory notes. RC Highlands did not seek any attorney’s fees or costs against the Tubbs-es because of the dismissal of the guarantee case that had been pending in Highlands County and the refiling of the claims asserted in that case as counterclaims in the Hillsborough County case.

In August 2010, the trial court entered defaults against Tu-Co and Ram in the foreclosure case. On August 30, 2010, the trial court granted an amended motion for summary judgment by Wells Fargo. The trial court determined that the lien of the Wells Fargo mortgage had priority over the Tubbses’ mortgages. On October 1, 2010, the trial court entered a final judgment of foreclosure in favor of Wells Fargo and against the Tubbses, RC Highlands, Tu-Co, and Ram. The total amount due Wells Fargo at the date of the entry of the final judgment of foreclosure was $14,642,330.89.

On October 5, 2010, after the entry of the final judgment in the foreclosure case, the Tubbses filed a notice dismissing RC Highlands as a defendant but reserving their rights to obtain final judgments against Tu-Co and Ram based on the defaults that the trial court had already entered against them. At this point, the Tubbses’ claims on the notes against RC Highlands were already pending in the Hillsborough County case. The Tubbses ultimately obtained final judgments in the foreclosure case against Tu-Co and Ram.

In the meantime, the clerk of the circuit court sold the real property owned by Tu-Co and Ram based on Wells Fargo’s final judgment of foreclosure. The sales proceeds were insufficient to satisfy the amount owed to Wells Fargo, and on November 19, 2010, the trial court entered a deficiency judgment in favor of Wells Fargo and against RC Highlands, Tu-Co, and Ram for $8,438,712.57. Wells Fargo and the Tubbses reached an agreement, and as part of the agreement, Wells Fargo assigned its deficiency judgment to the Tubbses on November 22, 2010.

Three weeks after the Tubbses dismissed their claims against RC Highlands in the foreclosure case, RC Highlands filed a motion in that case seeking an award of attorney’s fees and costs. In its motion, RC Highlands asserted that because the Tubbses had voluntarily dismissed their claims against it, RC Highlands was the prevailing party for the purpose of an award of fees. RC Highlands claimed attorney’s fees under the attorney’s fee provision in the mortgages and under section 57.105(7), Florida Statutes (2008). In addition, RC Highlands sought an award of costs under section 57.041(1), which provides, in pertinent part, that “[t]he party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.”

After a hearing limited to the issue of entitlement, the trial court determined that RC Highlands was the prevailing party in the foreclosure case based on the Tubbses’ voluntary dismissal of their claims against RC Highlands. The trial court entered its order on the issue of entitlement on February 22, 2011. Before this order was entered, RC Highlands had assigned its claims for attorney’s fees and costs to its attorneys, Mechanik Nuccio. The assignment was dated April 5, 2010, but Mechanik Nuccio did not give the Tubbses notice of the assignment until March 2, 2011. Based on the assignment, the trial court' substituted Mechanik Nuc-cio in the litigation as the real party in interest. The trial court held extensive hearings on the amount of fees and costs to be awarded to Mechanik Nuccio. The Tubbses moved for the trial court to set off a portion of the deficiency judgment that the Tubbses had acquired from Wells Fargo against any liability they might have to Mechanik Nuccio for attorney’s fees and costs. However, the trial court denied the Tubbses’ motion for set-off. Ultimately, the trial court entered a final judgment in favor of Mechanik Nuccio and against the Tubbses for $355,972.73.

The makeup of the judgment amount is pertinent to the issues on appeal. For the purpose of the attorney’s fee award, the trial court determined the lodestar amount to be $158,252.50. Then, the trial court applied a multiplier of 2.0 to the lodestar for a total attorney’s fee award of $316,505. The trial court also awarded Mechanik Nuccio $11,070 for the services of its expert witness on the issue of the amount of a reasonable attorney’s fee, and $14,592.80 in prejudgment interest on the attorney’s fee award. Finally, the trial court awarded Mechanik Nuccio $13,804.93 in taxable costs.

The Tubbses filed a motion for rehear-: mg of the final judgment, and the trial court denied the motion. This appeal followed.

II. FRAMING THE ISSUES

On appeal, the Tubbses argue that RC Highlands was not the prevailing party in the litigation. For this reason, the Tubbs-es contend that neither RC Highlands nor Mechanik Nuccio was entitled to an award of attorney’s fees. The Tubbses do not challenge the amount of the attorney’s fee award. In response, Mechanik Nuccio argues that the voluntary dismissal automatically made RC Highlands the prevailing party for the purpose of an award of prevailing party attorney’s fees.

In general, we review a trial court’s determination of the prevailing party for an abuse of discretion. T & W Developers, Inc. v. Salmonsen, 31 So.3d 298, 301 (Fla. 5th DCA 2010). However, when the trial court’s determination of which party prevails depends on the interpretation of a statute or a contract, we apply a de novo standard of review. Id. Here, the trial court’s determination of the prevailing party issue does not depend on the interpretation of a statute or on the parties’ agreement. Thus we review the trial court’s determination of the prevailing party for abuse of discretion.

Therefore, the first issue we are called upon to determine is whether the trial court abused its discretion in determining that RC Highlands became the prevailing party after the Tubbses took a voluntary dismissal of their foreclosure claims against RC Highlands in the foreclosure case. If not, then we must approve the trial court’s award of attorney’s fees to Mechanik Nuccio, RC Highlands’ assignee, under the fee provision of the parties’ mortgages and section 57.105(7).

For reasons unexplained, the parties do not directly address the separate issue of taxable costs in their briefs. However, we conclude that the trial court properly assessed and awarded taxable costs to Me-chanik Nuccio.

In addition, the Tubbses argue that the trial court improperly rejected their claim of set-off based on the substantially greater judgment against RC Highlands and its subsidiaries that Wells Fargo has assigned to the Tubbses. Based on our ruling on the prevailing party issue, this issue is not pertinent to the portion of the judgment against the Tubbses for attorney’s fees, the expert witness fee, and the award of prejudgment interest on the attorney’s fee award. However, because we approve the award of taxable costs in favor of Mechan-ik Nuccio and against the Tubbses, we must consider the issue of the set-off as it relates to the separate matter of the taxable cost award.

The facts pertinent to the legal issues concerning the Tubbses’ claim of set-off are essentially undisputed. We use a de novo standard to review a question of law arising from undisputed facts. See Kirton v. Fields, 997 So.2d 349, 352 (Fla.2008) (citing D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003)).

III. THE PREVAILING PARTY AND ATTORNEY’S FEES

For two reasons, we conclude that the trial court abused its discretion in determining that RC Highlands became the prevailing party after the Tubbses dismissed without prejudice their foreclosure claims against RC Highlands. First, the Tubbses dismissed their foreclosure claims because they had become moot, and the reason that the claims had become moot was unrelated to their merits. Second, the dismissed claims were only part of the complex litigation pending in two different counties among the Tubbses, RC Highlands, and other parties. The other claims — including the Tubbses’ claims against RC Highlands on the notes — were still pending in Hillsborough County after the voluntary dismissal and when the trial court determined that RC Highlands was the prevailing party. Thus the trial court’s determination of the issue was — at best — premature.

A. The Dismissal of Moot Claims

In most instances, “when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.” Thornber v. City of Fort Walton Beach, 568 So.2d 914, 919 (Fla.1990). Generally speaking, “when a plaintiff voluntarily dismisses an action, the defendant is the ‘prevailing party1 within the meaning of statutory or contractual provisions awarding attorney’s fees to the ‘prevailing part in litigation.” Alhambra Homeowners Ass’n v. Asad, 943 So.2d 316, 318 (Fla. 4th DCA 2006); see also Ajax Paving Indus., Inc. v. Hardaway Co., 824 So.2d 1026, 1029 (Fla. 2d DCA 2002) (stating the general rule); Century Constr. Corp. v. Koss, 559 So.2d 611, 612 (Fla. 1st DCA 1990) (stating the general rule). “[D]espite the fact that the case has not been resolved on the merits,” an award of attorney’s fees may be made to the defendant as the prevailing party. Ajax Paving, 824 So.2d at 1029 (citing Thomber, 568 So.2d at 919).

However, the general rule does not apply without exception. A court may look behind a voluntary dismissal at the facts of the litigation “to determine whether a party is a ‘substantially’ prevailing party.” Walter D. Padow, M.D., P.A. v. Knollwood Club Ass’n, 839 So.2d 744, 745 (Fla. 4th DCA 2003). For example, in the Padow case, a condominium association sued a unit owner for failure to pay maintenance assessments. Id. After the suit was filed, the owner sent the association a check for an amount representing a substantial part — but not all — of the association’s claim. Id. The association decided that it was not worthwhile to continue the litigation with the owner for the relatively small balance remaining. Id. Accordingly, the association filed a voluntary dismissal of the action without prejudice. Id. Next, the owner filed a motion to tax costs and attorney’s fees, claiming that he was the prevailing party and thus entitled to an award under the applicable statute. Id. The trial court ruled that the owner had not prevailed and denied his motion for fees and costs. Id. A continuation of the lawsuit by the association, the trial court concluded, “would have been a waste of resources.” Id. at 746.

The owner appealed the trial court’s order denying his motion to tax costs and attorney’s fees. On appeal, the owner relied on the general rule stated in Thom-ber. Id. at 745^46. The Fourth District affirmed the trial court’s order. Id. The Fourth District distinguished Thomber as follows:

This case presents an exception to the general rule stated in Thomber. Thom-ber contemplates that after a voluntary dismissal a trial court must “determine whether the party requesting fees has prevailed.” [568 So.2d at 919] (emphasis added). This language indicates that a defendant is not automatically the prevailing party for the purpose of an attorney’s fee statute when a plaintiff takes a voluntary dismissal. Here, Padow cannot be a “prevailing party” within the meaning of section 718.303(1) because he paid the substantial part of the association’s claim for delinquent assessments prior to the voluntary dismissal.

Id. at 746. The Fourth District explained further “that to declare [the owner] the prevailing party in this case would be contrary to a goal of [section 718.303(1), Florida Statutes (2001) ], which is to discourage needless litigation by encouraging settlement.” Id. The Fourth District expressly agreed with the trial court’s conclusion that continuing the litigation under the circumstances “would have been a waste of resources.” Id.

Padow teaches that courts must look to the substance of litigation outcomes — not just procedural maneuvers — in determining the issue of which party has prevailed in an action. “ ‘[I]t is [the] results, not [the] procedure, which govern the determination’ of which party prevailed for purposes of awarding attorney’s fees[.]” Bessard v. Bessard, 40 So.3d 775, 778 (Fla. 3d DCA 2010) (second and third alterations in original) (quoting Smith v. Adler, 596 So.2d 696, 697 (Fla. 4th DCA 1992)).

Here, Mechanik Nuccio relies on the general rule in support of its argument that RC Highlands, the defendant in the foreclosure case filed in Highlands County, became the prevailing party in that case after the Tubbses voluntarily dismissed their foreclosure claims against RC Highlands. Mechanik Nuccio’s argument focuses on the voluntary dismissal — a procedural maneuver — to the exclusion of the substance of what happened. The Tubbs-es only dismissed their foreclosure claims against RC Highlands after Wells Fargo had foreclosed its superior lien against the real property securing the Tubbses’ mortgages. Wells Fargo’s successful foreclosure of its mortgage lien on the property made any further pursuit by the Tubbses of their foreclosure claims moot. Here, as in Padow, the continued prosecution by the Tubbses of their foreclosure claims against the property “would have been a waste of resources.” The trial court should not have penalized the Tubbses with a substantial assessment of attorney’s fees for recognizing the obvious and dismissing their claims that had become moot for reasons unrelated to the merits of the litigation between the parties. See Del Valle v. Biltmore II Condo. Ass’n, 411 So.2d 1356, 1358 (Fla. 3d DCA 1982) (holding that the defendant unit owner was not the prevailing party under the applicable statute where the plaintiff condominium association voluntarily dismissed its claim when the claim became moot for a reason unrelated to the merits of the case); cf. 51 Island Way Condo. Ass’n v. Williams, 458 So.2d 364, 367 (Fla. 2d DCA 1984) (distinguishing Del Valle on the ground that the circuit court’s dismissal of the case for mootness resulted from the volitional act of the defendants which provided the plaintiff the relief that it had sought).

In addition, even if one considers the result in the foreclosure case in isolation from the larger litigation picture, the conclusion that neither of the parties achieved their litigation objectives in that case is inescapable. The Tubbses’ goal in the foreclosure case was to obtain a judicial sale of the mortgaged property and the application of the proceeds of the sale to the payment of the monies owed to them on the notes. RC Highlands’ goal in the foreclosure case was to avoid the loss of the property and to prevent the entry of deficiency judgments against it. The foreclosure of the property to satisfy Wells Fargo’s superior lien prevented both parties from achieving their goals with regard to the property. The issue of a money judgment against RC Highlands on the notes remained to be determined in the Hillsborough County case. Therefore, even if one does not take all of the litigation pending between the Tubbses and RC Highlands into account, one cannot properly characterize either the Tubbses or RC Highlands as the prevailing party on the foreclosure claims.

B. Consideration of the Litigation as a Whole

In making its determination that RC Holdings was the prevailing party in the Highlands County case, the trial court viewed the Tubbses’ dismissal of their foreclosure claims as an isolated event, unrelated to its place in the context of the complex litigation then pending in two counties among the Tubbses, RC Highlands, and other parties. To be sure, the foreclosure claims were the only claims the Tubbses asserted against RC Highlands in the foreclosure case pending in Highlands County. But the Tubbses were pursuing their claims against RC Highlands on the notes in the Hillsborough County case. In accordance with the local action rule, the only place where the Tubbses could file the foreclosure case was Highlands County. See Ga. Cas. Co. v. O’Donnell, 109 Fla. 290, 147 So. 267, 268 (1933); Cohen v. Century Ventures, Inc., 163 So.2d 799, 801 (Fla. 2d DCA 1964). Nevertheless, the forum selection clause in the Stock Purchase Agreement designated Hillsborough County as the proper forum for all disputes arising out of the Stock Purchase Agreement or any related matter. Accordingly, the Tubbses were obliged to prosecute the foreclosure claims in Highlands County and to litigate their claims on the notes against RC Highlands in Hills-borough County. Absent the forum selection clause in the Stock Purchase Agreement, the parties might have litigated all of their other claims along with the foreclosure case in Highlands County. Both the foreclosure claims and the note claims arose out of the same transaction between the Tubbses and RC Highlands. To determine whether the prevailing party was the Tubbses or RC Highlands, the trial court should have viewed these claims as a single unit of litigation instead of as unrelated lawsuits.

“[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party, for attorney’s fees.” Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). The determination of which party has prevailed on the significant issues in the case cannot generally be determined until the entry of the final judgment. See Sharpe v. Ceco Corp., 242 So.2d 464, 465 (Fla. 3d DCA 1970) (“The prevailing party is regarded as that party who has affirmative judgment rendered in his favor at the conclusion of the entire case.”); see also Henry P. Trawick, Jr., Florida Practice and Procedure § 25:13 (2012 ed.) (“Proof of fees is usually postponed until a decision on the merits. This is the only practicable solution when the fees go to the prevailing party since that is not known until the judgment.”). Here, the trial court based its determination of the prevailing party on the Tubbses’ dismissal of their foreclosure claims without reference to the related claims on the notes. The Tubbses’ claims on the notes were still pending in Hillsborough County when the trial court entered its order declaring RC Highlands to be the prevailing party. Thus the trial court’s determination that RC Highlands was the prevailing party was — at best — premature.

C. Summary

Our review of the trial court’s determination that RC Highlands was the prevailing party in the Highlands County litigation is for abuse of discretion. However, the exercise of the trial court’s discretion in making this determination is “subject to the test of reasonableness, i.e., [it] must be supported by logic and justification for the result and founded on substantial, competent evidence.” In re Guardianship of Sapp, 868 So.2d 687, 693 (Fla. 2d DCA 2004) (citing Valentini v. State (In re Guardianship of Sitter), 779 So.2d 346, 348 (Fla. 2d DCA 2000)). In this case, the trial court inappropriately made its determination of the prevailing party by focusing on a procedural maneuver — the voluntary dismissal — without reference to the substance of what occurred in the litigation. In addition, the trial court made a determination of the prevailing party while the parties were still litigating their closely .related claims in the Hillsborough County proceedings. Thus the trial court made its determination of the prevailing party prematurely — before all of the information necessary to an informed determination of the issue was available. For these reasons, we conclude that the trial court abused its discretion in ruling that RC Highlands was the prevailing party in the foreclosure case.

IV. TAXABLE COSTS

We consider the propriety of the award of taxable costs separately from the attorney’s fee award. With regard to the issue of costs, Florida Rule of Civil Procedure 1.420(d) provides, in pertinent part, as follows: “Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs.” Thus, upon the filing of the Tubbses’ voluntary dismissal in the foreclosure case, RC Highlands became entitled to an award of its taxable costs. See Losada v. Humana Med. Plan, Inc., 659 So.2d 367, 367-68 (Fla. 3d DCA 1995). The trial court properly assessed and awarded taxable costs to Mechanik Nuccio. Because Mechanik Nuccio was entitled to recover $13,804.93 in costs from the Tubbses, we must now consider the Tubbses’ argument concerning their claim of set-off.

V. SET-OFF

Mechanik Nuccio argues that the Tubbs-es were not entitled to offset the judgment that they acquired by assignment from Wells Fargo against the attorney’s fee and the cost award because the parties involved are different. The Tubbses’ judgment is against RC Highlands; the trial court entered a judgment for attorney’s fees and costs in favor of Mechanik Nuc-cio, a different party. Because the parties are not the same, Mechanik Nuccio concludes, the trial court correctly denied the Tubbses’ motion for set-off. We disagree.

Mechanik Nuccio based its claim for attorney’s fees and costs on an assignment of rights. However, Mechanik Nuc-cio represented RC Highlands in the foreclosure case. As counsel for RC Highlands, Mechanik Nuccio had no independent right to fees and costs separate and apart from its client. To the extent that Mechanik Nuccio was entitled to an award of attorney’s fees and taxable costs at all, its rights were dependent on and derivative of the rights of its client, RC Highlands. See Wolf v. Horton, 322 So.2d 71, 72 (Fla. 3d DCA 1975); Hope v. Lipkin, 156 So.2d 659, 659 (Fla. 3d DCA 1963). For this reason, Mechanik Nuccio “stood in the shoes” of RC Highlands with regard to the set-off of its claim for fees and costs by the Tubbses’ countervailing claim against RC Highlands. See Mass. Cas. Ins. Co. v. Forman, 600 F.2d 481, 483-5 (5th Cir.1979) (applying Florida law); Novack v. Novack, 210 So.2d 215, 217 (Fla.1968). RC Highlands owed the Tubbses more than $8,000,000 on the judgment that they held against it. RC Highlands was apparently insolvent, and the Tubbses were unlikely to collect anything on their judgment. A result allowing Mechanik Nuccio to collect more than $355,000 from the Tubbses based on a derivative right of Mechanik Nuccio’s client, RC Highlands, “would be totally absurd.” Angel Home Health Care, Inc. v. Mederi of Dade Cnty., Inc., 696 So.2d 487, 488 (Fla. 3d DCA 1997). For these reasons, the Tubbses were entitled to set off their much greater judgment against the award in favor of Mechanik Nuccio to the extent necessary to reduce their liability to Mechanik Nuccio to zero. See Nationwide Mut. Fire Ins. Co. v. Voigt, 21 So.3d 895, 896 (Fla. 2d DCA 2009).

VI. CONCLUSION

For these reasons, we reverse the final judgment to the extent that it awards attorney’s fees, the expert witness fee, and prejudgment interest on the amount of the attorney’s fees to Mechanik Nuccio. We approve the award of taxable costs in the amount of $13,804.93 to Mechanik Nuccio. However, on remand, the trial court shall enter an amended final judgment that provides for the partial satisfaction of the Tubbses’ judgment to the extent necessary to reduce to zero the amount due to Me-chanik Nuccio on the cost award.

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

BLACK and SLEET, JJ., Concur.

      . Wells Fargo has succeeded to Wachovia’s interest in the transaction. To avoid confusion, we will refer to Wachovia as Wells Fargo in the remainder of this opinion.

      . We note that Mechanik Nuccio did not argue either in the trial court or on this appeal that it was entitled to an award of attorney’s fees under Florida Rule of Civil Procedure 1.420(d) because the pertinent documents defined the term "costs” as including attorney’s fees. See Wilson v. Rose Printing Co., 624 So.2d 257, 258 (Fla.1993); Fleet Servs. Corp. v. Reise, 857 So.2d 273, 275 (Fla. 2d DCA 2003). Accordingly, we do not address that issue.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    Scott KATZMAN, M.D. and Advanced Orthopaedics, P.A., Petitioners, v. WINN-DIXIE STORES, INC. and Michele Gould, Respondents.
    No. 5D12-4816.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.
    Kimberly P. Simoes and Mario B. Si-moes, of The Simoes Law Group, P.A., DeLand, for Petitioners.
    Jennings L. Hurt, III and Richard S. Womble, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Respondent Winn-Dixie Stores, Inc.
    No Appearance for Respondent Michele Gould.
   EVANDER, J.

Petitioners seek certiorari review of the trial court’s denial of their motion for protective order from a subpoena duces tecum without deposition. We conclude that the trial court did not depart from the essential requirements of law in requiring Petitioners to produce the documents at issue. See Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011); Columbia Hosp. (Palm Beaches) Ltd. P’ship v. Hasson, 83 So.3d 148 (Fla. 4th DCA 2010).

However, to the extent the trial court failed to take appropriate measures to protect Petitioners from the dissemination of the documents (and/or confidential information contained therein), Petitioners are entitled to certiorari relief. A protective order or confidentiality agreement should be in place prior to release of the documents. Laser Spine Inst., LLC v. Makanast, 69 So.3d 1045 (Fla. 2d DCA 2011).

PETITION GRANTED, in part; DENIED, in part; and REMANDED.

LAWSON and COHEN, JJ., concur.

      . We interpret the trial court’s order to limit Petitioners’ obligation to produce those documents requested in paragraphs five and six of the subpoena to the three-year period immediately preceding the date of the filing of the subpoena.


author: PER CURIAM.

text:
    James M. RUDNICK, Appellant, v. FEDERAL TRUST BANK, et al., Appellees.
    No. 5D12-4032.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.
    James M. DuRant, Jr., of Boyd & Du-Rant, P.L., Tallahassee, for Appellant.
    Lewis W. Murphy, Jr. and Casey Walker, of Murphy & Walker, P.L., Vero Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Roy v. Barnett Bank of Palm Beach County, 455 So.2d 496 (Fla. 4th DCA 1984). Our affirmance is without prejudice to Rudnick to seek relief from the trial court pursuant to his previously-filed Motion for Relief from Judgment.

AFFIRMED; REMANDED for Consideration of Rudnick’s Motion for Relief from Judgment.

SAWAYA, EVANDER and BERGER, JJ., concur.


text:
    Tequila KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3080.
    District Court of Appeal of Florida, Second District.
    July 26, 2013.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm the judgment on appeal but remand in order to correct a sentencing error in the order of probation that is inconsistent with the trial judge’s oral findings at the sentencing hearing.

Ms. Kelly pleaded guilty to one count of neglect of a child, a felony, and to one count of providing false information to law enforcement during an investigation, a misdemeanor.

At sentencing, the trial court announced that it would “withhold adjudication as to the felony, [and] adjudicate [defendant] as to ... count three[,] the misdemeanor.” The order of probation, however, adjudicates Ms. Kelly guilty as to the felony, i.e., neglect of a child, and withholds adjudication on the misdemeanor, i.e., providing false information to law enforcement.

The probation order shall be corrected on remand to reflect the sentence pronounced at the sentencing hearing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, CASANUEVA, and BLACK, JJ., Concur.

      . See § 827.03, Fla. Stat. (2011).

      . See § 837.055, Fla. Stat. (2011).


author: TAYLOR, J.

text:
    Joe C. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1716.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant, Joe Collins, appeals a final judgment and sentence entered after he pled no contest to possession of cocaine and drug paraphernalia. Appellant moved to suppress the drug evidence, which was seized while the police were taking him into custody under the Florida Mental Health Act, or Baker Act, section 394.463, Florida Statutes (2010). We affirm the trial court’s denial of his motion to suppress because the officers’ search of appellant before transporting him to a treatment facility was reasonable under the circumstances.

After the hearing on appellant’s motion to suppress evidence, the trial court made written findings as follows:

1. On August 26, 2010, [a police officer] of the Ft Lauderdale Police Department was approached by the Defendant who stated that his eight month old daughter had been kidnapped and murdered at the house across the street from his house. This was the 10th time in 3 days the Defendant had made these outlandish and false accusations. [The officer] was concerned for the individuals in the house the Defendant alleged his child was in. [The officer] was able to confirm that the child was fine with the mother in Boynton Beach. At this point, [the officer] was going to Baker Act the Defendant. Pursuant to Department policy, the Defendant was searched for weapons and contraband by [another officer] who found in the Defendant’s pockets 2 crack pipes and pieces of cocaine. Upon finding this, the officers decided to arrest the Defendant instead of Baker Acting him.
2. The Defendant argues that the search violated his fourth amendment rights. This court disagrees. This court finds that both officers were credible and that this was not a situation where the officers used Baker Acting as a pretext to search. The court finds that this was initially a valid Baker Act situation and therefore no probable cause was needed for the search and once the cocaine and paraphernalia was found it became an arrest situation. See Lukehart v. State, 70 So.3d 503, 518 (Fla.2011).

The trial court denied appellant’s motion to suppress, and appellant pled no contest to the charges, reserving his right to appeal the trial court’s ruling.

The applicable standard of review is as follows:

A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the court must interpret the evidence and reasonable inferences and deductions therefrom in a manner most favorable to sustaining the trial court’s ruling. An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence. However, an appellate court applies a de novo standard of review to the mixed questions of law and fact that ultimately determine constitutional issues.

Smith v. State, 87 So.3d 84, 86 (Fla. 4th DCA 2012) (internal quotation marks and citations omitted).

Appellant argues that the trial court erred in denying his motion to suppress because the non-consensual search of his person without a warrant, reasonable suspicion, or probable cause, and without any articulable basis to believe he was carrying a weapon violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 12 of the Florida Constitution. Appellant further argues that a preliminary pat down should have been conducted before the search. In arguing that the officers had no right to search him before placing him into a police cruiser, appellant relies upon two juvenile cases: L.C. v. State, 23 So.3d 1215 (Fla. 3d DCA 2009), and A.B.S. v. State, 51 So.3d 1181 (Fla. 2d DCA 2010). Both cases, however, concern Florida’s truancy statute, Chapter 984.13, Florida Statutes (2007), and do not involve a search conducted during a detention pursuant to the Florida Mental Health Act, Chapter 394.463, Florida Statutes (2010).

The Florida Mental Health Act, commonly known as the Baker Act, provides that “[a] person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness ... [t]here is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.” § 394.463(1), (l)(b)2„ Fla. Stat. (2010).

In Lukehart, cited by the trial court in its order denying suppression, officers took the defendant into custody under the Baker Act after he told them he had attempted suicide earlier in the day. 70 So.3d at 517-18. Before the officers took the defendant into custody, they observed red marks on his neck and found his car abandoned on the side of the road. Id. at 518. After being taken into custody, the defendant made statements implicating himself in the murder of a child. Id. On appeal of the trial court’s denial of his motion for post-conviction relief, the Florida Supreme Court held that the officers did not need to have probable cause to detain the defendant under the Baker Act because he was not being arrested “for purposes of the Fourth Amendment.” Id. The court also noted that there was no evidence that the officers had violated “local policy governing the Baker Act.” Id. However, the court held that, even if there had been evidence of a violation of local policy, suppression of the evidence or statements would not have been warranted because the exclusionary rule does not apply to violations of section 394.463, Florida Statutes, “unless a constitutional violation has also occurred.” Id. at 519-20.

Here, officers decided to take appellant into custody under the Baker Act after his family and neighbors expressed concern that he might be a threat because of his unwavering belief that his neighbors had kidnapped and murdered his child. Both officers testified that local policy requires them to conduct a search before transporting a person to a mental health receiving and treatment facility. Under the facts and circumstances of this case, where the officers were concerned for appellant’s safety and the safety of others, and acted pursuant to a reasonable local police policy, the trial court was entitled to conclude that the officers’ actions were reasonable and that the officers were acting in good faith. We therefore affirm the trial court’s denial of the motion to suppress.

Affirmed.

WARNER and STEVENSON, JJ., concur.

      . Appellant does not argue that the officers did not have a right to detain him pursuant to the Baker Act.


text:
    Kenneth JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1266.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kenneth Johnson (“Johnson”) was charged with two counts of lewd and lascivious battery of a person between the ages of 12 and 16. Prior to jury selection, the trial court noticed that Johnson was in jail clothes and asked if he had clothes to change into. Johnson said no, explaining that his attorney never discussed the matter with him.

Later, defense counsel specifically objected to Johnson being in jail clothes, explaining that to prevent prejudice he should at a minimum be permitted to wear a different shirt. The court informed counsel that it already asked if Johnson had any clothes to change into and he responded that he did not. The court continued, explaining that it was not the court’s concern and counsel should have provided him a shirt if counsel was concerned about the prejudice it may cause. Defense counsel further indicated that a shirt could quickly be obtained for Johnson from downstairs. However, the court would not allow it.

It is well settled law that “[a] criminal defendant cannot be compelled to stand trial in prison clothing ... because it could impair the presumption of innocence, which is a basic component to the fundamental right to a fair trial.” Mullins v. State, 766 So.2d 1136, 1137 (Fla. 2d DCA 2000) (citations omitted). Further, this issue triggers equal protection concerns because, generally speaking, only those who cannot post bail prior to trial are unable to procure their own clothes to wear during trial. Id.

Here, the trial court erred in compelling Johnson to wear jail clothes during his trial. Notably, this is neither a situation where Johnson chose to do so nor a situation where the jury was unaware that the clothes were jail clothes. As such, we cannot find the error harmless. As a result, we reverse and remand to the trial court for a new trial in which Johnson is provided the opportunity to proceed in attire that does not deprive him of his right to a fair trial.

Reversed and remanded.

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

      . Defense counsel was a member of the Public Defender’s Office, which maintains clothes for indigent inmates to wear in the courtroom.


author: PER CURIAM. WOLF, J.,

text:
    PASCO COUNTY SHERIFF’S OFFICE and Commercial Risk Management, Appellants, v. Mirella SHAFFER, Appellee.
    No. 1D12-5419.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.
    Rehearing Denied Dec. 3, 2013.
    David A. Hayes, Janelle G. Koren, and Warren K. Sponsler of Sponsler, Bennett, Jacobs & Adams, P.A., Tampa, for Appellants.
    Tonya A. Oliver, New Port Richey, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

AFFIRMED. See Rocha v. City of Tampa, 100 So.3d 138 (Fla. 1st DCA 2012).

RAY and SWANSON, JJ., concur.

WOLF, J., concurs with opinion.

WOLF, J.,

concurring.

The issue before this court is whether the Claimant, a correctional officer who gets paid her wages and works full-time but has medically imposed restrictions that preclude her from performing a substantial and significant portion of her job duties, can be considered disabled pursuant to section 112.18, Florida Statutes. It is argued that because Claimant “earned” her wages for this period and was able to perform some of the necessary activities of her job, she is precluded from being disabled pursuant to chapter 112, Florida Statutes. It is unclear what “earning” wages in this context means. We have previously held that a person restricted to light duty work may be considered disabled pursuant to section 112.18, Florida Statutes. See Rocha v. City of Tampa, 100 So.3d 138 (Fla. 1st DCA 2012). The correct focus is the extent that an employee is precluded from performing his or her regular job duties as a result of medical restriction, thereby affecting the employee’s “capacity” to “earn ... wages which the employee was receiving at the time of the injury.” § 440.02(13), Fla. Stat. (2011) (emphasis added). The JCC determined that this correctional officer was precluded from performing “a necessary daily part of her job description” and, thus, was disabled. (Emphasis added). I read this finding to indicate that Claimant was precluded from performing a substantial and significant portion of her necessary job duties. I believe this is the correct test for determining partial disability pursuant to chapter 112, and the conclusion is supported by competent substantial evidence. I, therefore, agree to affirm.

Claimant specifically explained that her job duties require her to have inmate contact. The clerical portion of her job and the inmate contact travel hand-in-hand, because the first thing a correctional officer must do when an inmate enters a facility is to pat down the inmate. Claimant has to conduct strip searches if necessary. She takes fingerprints. Claimant is required to walk inmates over to have their pictures taken and then bring them back to the holding area. If the nurse needs to see an inmate, Claimant must take the inmate to the nurse and then bring the inmate back. If a fellow correctional officer needs assistance to control an inmate, she must help. Claimant testified on their slowest day, they would have twenty inmates enter the facility. During the period in question, she was precluded from performing these duties. The employer/carrier presented no evidence to contradict Claimant’s testimony on the issue.

Significantly, the JCC made the following findings:

13. It is undisputed that the claimant missed no time from work after being diagnosed with benign essential hypertension on February 3, 2012. She worked her regular hours and was paid her regular salary until she was released to unrestricted work activity on February 27, 2012. However, the evidence is also undisputed that the claimant was not allowed to have inmate contact during this period because she had not passed the [Physical Agility Test], She was restricted to desk work by her employer and completed paperwork which, although a necessary function of her job, did not include inmate control which was also a necessary daily part of her job description. She did not return to her full job duties, including inmate control, until after February 27, 2012 when she was allowed to take the PAT by her doctor.
16.Under the definition of “disablement”, there is no question that this claimant “was incapable of performing her duties” for personal and public safety reasons because of medical restrictions after February 3, 2012. Because of her hypertension on that day, she could not take a required test which would have allowed her to perform all other duties of her job because of her hypertension and the medical restrictions therefrom. The claimant’s body retained the physical strength and coordination to perform part of her job duties for a time, but who was officially advised by her doctor (via medical opinion to excuse the PAT on February 3, 2012) to forbear from engaging in all aspects of her work so as to avoid potential further injury or death due to hypertension. She came to work in civilian clothes and could have no inmate contact from February 3, 2012 to February 27, 2012.

(Emphasis added).

Based upon these findings, the JCC found Claimant had suffered a disability pursuant to section 112.18, Florida Statutes.

In pertinent part, section 112.18(l)(a), Florida Statutes (2011), provides:

Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or any law enforcement officer, correctional officer, or correctional probation officer as defined in s.943.10(l), (2), or (3) caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence.

(Emphasis added).

In Rocha, 100 So.3d at 140-41, we made it clear that the dispositive factor of the analysis is the “capacity” to earn wages, rather than the wages that were paid, stating specifically:

Disability “hinges solely on the employee’s ability to earn income, not upon other factors such as whether the employee has experienced wage-loss.” Carney v. Sarasota County Sheriff’s Office, 26 So.3d 683, 684 (Fla. 1st DCA 2009).

In Rocha, the court was dealing with a firefighter whose medical restrictions were “light-duty” and who was “expressly prohibited [] from firefighting.” Id. at 140. He was paid full wages although it is unclear from the opinion whether he returned to “light-duty” work during the period of medical restrictions. This fact should not make a material difference in our analysis for this case. Had Rocha returned to work and performed some duties, his earning capacity as a firefighter would have been no different. The level of job duties a claimant is able to perform, just like the amount of wages received, may be a factor relevant to earning capacity rather than a dispositive factor in this case. In Rocha, this court found a firefighter on light duty who cannot fight a fire has lost the capacity to earn the same wages in the relevant market and thus meets the definition of disability. 100 So.3d at 141-42. Similarly, in the instant case, the JCC was free to find a correctional officer who cannot interact with inmates, and thus is precluded from performing a substantial and significant part of her job duties, has lost wage earning capacity in the relevant market.

       It is unnecessary to reach the issue concerning the relevant market or meaning of "other employment” in section 440.02, Florida Statutes (2011), because the employer presented no evidence that Claimant could earn the same wages in a job other than correctional officer. This issue was also not raised on appeal. It should be noted, however, that in cases involving application of section 112.18, Florida Statutes, the inquiry has focused on the capacity to earn the same wages in the present occupation. See, e.g., Rocha, 100 So.3d 138.


text:
    In re Sheila LINSCOMB.
    No. 2012-B-0975.
    Supreme Court of Louisiana.
    June 15, 2012.
   PER CURIAM.

liThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to refund unearned fees in multiple client matters. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Sheila Linscomb, Louisiana Bar Roll number 22107, be suspended from the practice of law for a period of three years, retroactive to June 3, 2009, the date of her interim suspension. It is further ordered that respondent either return unearned fees to her clients subject of the Petition for Consent Discipline or voluntarily participate in the Louisiana State Bar Association’s Fee Dispute Resolution Program regarding her fees.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . The parties also proposed that respondent's suspension be followed by a period of probation with conditions. However, such issues, along with any other relevant factors, may be addressed if and when respondent applies for reinstatement. See In re: Welcome, 02-2662 (La. 1/24/03), 840 So.2d 519; In re: Harris, 99-1828 (La.9/17/99), 745 So.2d 1172.


text:
    STATE of Louisiana v. Dearieus DUHEART.
    No. 2012-KA-0085.
    Supreme Court of Louisiana.
    Oct. 26, 2012.

      James D. Caldwell, Attorney General, Hillar Clement Moore, III, District Attorney, Adam J. Haney, Jeanne Guillory Rougeau, Assistant District Attorneys, for Appellant.
    Manasseh, Gill, Knipe & Belanger, PLC, James Gordon Knipe, III, Baton Rouge, LA, for Appellee.
   PER CURIAM.

hThe defendant, Dearieus Duheart, was charged by bill of information with a violation of R.S. 14:95.1 based on the allegation that a pat-down search of him conducted during a traffic stop revealed a firearm. The traffic stop was initiated by an officer who alleged he observed a violation of R.S. 32:101, which provides in pertinent part that “the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.” Defendant moved to suppress the firearm and statements he made during the traffic stop based, inter alia, on defendant’s contention that the traffic stop was unjustified because the vehicle’s driver did not violate R.S. 32:101 when she made a wide right turn which resulted in the vehicle ending the turn in the inside left lane rather than the outside right lane. The district court, however, granted the motion to suppress because it found that R.S. 32:101 failed to give adequate notice to individuals that certain contemplated conduct is proscribed and failed to provide adequate standards for those charged with determining the guilt or innocence of the accused, and was therefore unconstitutionally vague. The state appeals directly to |2this Court pursuant to La. Const. Art. V, § 5(D).

In State v. Bazile, 11-2201 (La.1/24/12), 85 So.3d 1, this Court found that a trial judge erred in raising sua sponte the issue of whether La. Const, art. I, § 17(A) conflicted with the U.S. Constitution when the defendant did not challenge the constitutionality of the jury waiver procedure contained in this article:

This court has previously examined whether a district court may refuse to enforce a law on the grounds that the court on its own motion finds the law unconstitutional. In Greater New Orleans Expressway Com’n. v. Olivier, 04-2147, pp. 1-2 (La.1/19/05), 892 So.2d 570, 572, two parish court judges were not collecting costs from certain traffic violators as required by statute. The judges had refused to collect the costs, believing the statute directing them to do so was unconstitutional. This court ruled that the judges lacked standing to themselves raise a constitutional challenge to the laws the judges were charged by their judicial oaths to enforce. Judges “owe an equal duty to apply and enforce [a] presumptively constitutional legislative act as they do the state constitution,” this court explained. Id. 04-2147 at 10, 892 So.2d at 577. See also Ring v. State, DOTD, 02-1367, p. 5 (La.1/14/03), 835 So.2d 423, 427 (noting that the role of a judge in our system of 'justice is such that “a judge should not judicially declare a statute unconstitutional unless it is essential to the decision of a case or controversy”).
In Olivier, not only did the judges’ oaths to uphold the Louisiana Constitution prohibit them from raising a constitutional challenge to the fee statute on their own, there were also procedural barriers prohibiting the judges from refusing to apply the statute. A court may consider a constitutional challenge only upon a showing that “the [law] ‘seriously affects’ ” the rights of the person challenging it. Olivier, 04-2147 at 4, 892 So.2d at 573. This is so because “legislative acts are presumed constitutional ‘until declared otherwise in proceedings brought contradictorily between interested persons.’ ” Id., quoting State v. Bd. of Supervisors, La. State Univ. & Agric. & Mechanical College, 228 La. 951, 84 So.2d 597, 600 (1955).
A constitutional provision is a more basic, fundamental provision than a statutory enactment. See La. Const, art. Ill, § 1(A) (indicating that the power to enact legislation, such as statutes, is a power itself conferred by the constitution). A constitutional provision begins as a legislative enactment and, therefore, also requires enforcement by the district court. See La. Const, art. XIII, § 1(A) and (C) (discussing procedure for amending the constitution as being initiated by the legislature and submitted to the electorate, which is the |sprocedure by which the particular law at issue here was promulgated; see 2010 La. Acts 1053, § 1, approved Nov. 2, 2010). The district court, therefore, erred in declaring that the jury waiver procedure described in La. Const, art. I, § 17(A) is unconstitutional without the issue being properly raised. See State v. Schoening, 00-0903, p. 3 (La.10/17/00), 770 So.2d 762, 764, quoting Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65 (“This court has stated that, while there is no single required procedure or type of proceeding for attacking a statute’s constitutionality, ‘the long-standing jurisprudential rule of law is ... the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.’ ”). Among the dangers we cited in Schoen-ing of a court raising a constitutional question on its own were that “none of the parties were given an opportunity to research and fully brief the issue for the trial court. While the trial judge allowed brief and spontaneous oral arguments on the issue of the victim’s sequestration, the parties were prejudiced in that they were not prepared to argue, nor did they directly argue, the constitutionality of the statute.” Schoening, 00-0903 at 5, 770 So.2d at 766.

Bazile, 11-2201 at 5-7, 85 So.3d at 4-5. In the present case, as in Bazile, the defendant did not challenge the constitutionality of the enactment. No parties briefed this issue for the trial court. No parties argued the constitutionality of the statute. Instead, the district court sua sponte raised the issue of whether R.S. 32:101 is unconstitutionally vague and then suppressed the evidence based on a determination that it is. For the reasons provided in Bazile, the district court erred in doing so.

The state also contends that the district court erred in determining that defendant’s statements during the traffic stop were not freely and voluntarily made. Article V, § 5(D)(1) of the Louisiana Constitution grants appellate jurisdiction to this Court in cases in which a law has been declared unconstitutional. This Court has determined in criminal matters that, “where an appeal to this court lies solely because ‘a law of this state has been declared unconstitutional,’ such appeal must be confined to that one issue alone.” State v. Sibley, 94 So. 410, 410, 152 La. 825, 826-27 (1922); see also State v. Verret, 87 So.2d 297, 298, 229 La. 934, 939 (1956). Therefore, the state’s remaining contention is not considered in this appeal. The judgment of the district court is reversed to the extent that it suppressed the evidence based on a finding that R.S. 32:101 is unconstitutionally vague. The case is remanded to the district court for reconsideration of its ruling on the motion to suppress and for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.