author: COHEN, J.

text:
    William H. MUNTZING, III, Appellant, v. GLOBAL DISCOVERIES LTD., LLC, Appellee.
    No. 5D11-4169.
    District Court of Appeal of Florida, Fifth District.
    May 3, 2013.

      Sharon Lee Stedman, Orlando, for Appellant.
    Michael Farrar, Miami, for Appellee. ■
   COHEN, J.

William H. Muntzing, III (“Muntzing”), appeals from the trial court’s entry of final summary judgment in favor of Global Discoveries Ltd., LLC (“Global”), in Global’s action to establish its entitlement to the excess proceeds from the tax deed sale of Muntzing’s property. Muntzing raises several issues on appeal, only one of which merits discussion. He argues summary judgment was improper because a disputed material fact existed as to whether Global had a valid lien on the property. We disagree and affirm.

Due to Muntzing’s failure to pay property taxes, his Osceola County property was sold at a tax deed' sale. Regions Bank, which held a mortgage on the property, subsequently assigned to Global its right to the excess proceeds from the sale. Seeking distribution of those proceeds, Global submitted to the Osceola County Clerk of the Circuit Court á notarized statement of claim setting forth the amount due and owing under the mortgage. For reasons' not relevant to this appeal, the Clerk refused to release the excess proceeds to Global, prompting Global to file suit seeking to establish its right to the funds.

Global thereafter moved for summary judgment, submitting as evidence the mortgage on Muntzing’s property, the mortgagee’s assignment of its right to the excess proceeds to Global, and the notarized statement of claim. In opposing the motion, Muntzing submitted a sworn affidavit stating that Global had not offered as evidence the promissory note underlying the mortgage. After a hearing, the trial court entered summary judgment, finding that Global had established its right to the proceeds.

On appeal, Muntzing reasserts his position below that Global was required to submit the promissory note to establish it had a valid lien. We disagree. The mortgage itself constituted the lien on the property. See Gonzalez v. NAFH Nat'l Bank, 93 So.3d 1054, 1058 n. 2 (Fla; 3d DCA 2012) (“A mortgage by definition is a written instrument providing security for performance of a duty or payment of a debt which, when recorded, gives rise to a lien on the mortgaged property.” (quotation omitted)). By submitting evidence that it was the assignee of the senior mortgagee and that it had submitted a statement of claim to the Clerk, Global established its entitlement to the excess proceeds as a matter of law. See §§ 197.'502(4), 197.522(l)(a), 197.582(2), Fla. Stat. (2012); Fla. Admin.Code R. 12D-13.065(3) (“Any valid lien in the property is entitled to payment before any payment is made to the titleholder of record.”); Fla. Admin. Code R. 12D-13.065(4) (providing that party seeking distribution of excess proceeds must submit notarized statement of claim to the Clerk of the Court, setting forth “the particulars of [the] lien, and the amounts currently due.... ”); Fla. Admin. Code R. 12D-13.065(6) (providing statements of claim are to be paid according to priorities of recordation). Accordingly, we affirm.

AFFIRMED.

PALMER and LAWSON, JJ., concur.

      . Most of the other issues raised by Muntzing were not raised below and thus were not preserved for appellate review. See Keech v. Yousef 815 So.2d 718, 719-20 (Fla. 5th DCA 2002).


source: Caselaw Access Project

author: CRENSHAW, Judge.

license: Public Domain

text:
    J.M.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2389.
    District Court of Appeal of Florida, Second District.
    May 3, 2013.
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

J.M.H. was adjudicated delinquent and placed on probation for battery. After violating her probation on numerous occasions, she was committed to the Department of Juvenile Justice for a period not to exceed 365 days — the same period of time as the maximum sentence had the offense been committed by an adult. See § 784.03(l)(a), Fla. Stat. (2011). During the pendency of the probation proceedings, J.M.H. was cited for indirect criminal contempt for violating her curfew, school tardiness and lack of attendance, and a positive drug test. The trial court issued a number of orders to show cause relating to J.M.H.’s actions. The court then ordered J.M.H. to serve time in secure detention for contempt. J.M.H. now appeals the order partially denying her motion to correct disposition, asserting that the trial court should have granted credit for time served in secure detention on her indirect contempt charges. We affirm the partial denial of her motion to correct disposition but remand for the trial court to enter the specific number of days to be credited regarding the portion of the motion that was granted.

The trial court did not err in denying J.M.H. credit for time served in secure detention for J.M.H.’s contempt charges. This case is similar to J.M. v. Gargett in which the trial court sentenced a minor to consecutive sentences for successive acts of indirect contempt following the violation of a single order of probation. 53 So.3d 1245 (Fla. 2d DCA 2011), approved) 101 So.3d 352 (Fla.2012). Upon review of this court’s decision, the supreme court noted that “each violation of the probation order constitutes a separate and distinct act of contempt.” J.M., 101 So.3d at 356. The statutory scheme itself contemplates this exact situation and calls for trial courts to limit contempt sentences to five days for the first instance and fifteen days for each successive instance. See id. (discussing section 985.037, Florida Statutes (2010)). Because each violation is a separate act of contempt, J.M., 101 So.3d at 356, and the trial court sentenced J.M.H. to consecutive sentences pursuant to statute, J.M.H. is not entitled to credit for time served for the contempt charges. The reverse is true for all the days spent in detention on the original offense, as the trial court’s order explicitly recognizes.

However, because the order on the motion to correct sentence fails to specify the specific number of days to be credited in accordance with Florida Rule of Juvenile Procedure 8.115(d), we remand for entry of the specific number of days only.

Affirmed and remanded with directions.

SILBERMAN, C.J., and NORTHCUTT J., Concur.

      . The statute has not been amended since.


author: PER CURIAM.

text:
    Kalvin YOUMAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D12-2470, 12-2471, 12-2472, 12-2473, 12-2474, 12-2475.
    District Court of Appeal of Florida, First District.
    May 6, 2013.
    Melissa Joy Ford, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kalvin Youman brought these six consolidated appeals pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel contends that the trial court erred in imposing certain costs in two of these cases. We affirm the convictions and sentences in 1D12-2471, 1D12-2473, 1D12-2474, and 1D12-2475. While affirming the convictions in 1D12-2470 and 1D12-2472, we strike the $100 cost of indigent legal assistance and the $20 court cost (Crime Stopper Trust Fund) in these two cases and remand for corrected cost judgments. We affirm the sentences in 1D12-2470 and 1D12-2472 in all other respects.

The trial court accepted Youman’s pleas in all six cases and imposed sentences in accordance with the terms of the plea agreement. Youman filed a timely Florida Rule of Criminal Procedure 3.800(b)(2) motion challenging the imposition of the $100 cost for indigent legal assistance pursuant to section 938.29(l)(a), Florida Statutes, and the $20 court cost imposed pursuant to section 938.06(1), Florida Statutes, in all six cases. The trial court granted the motion and made the corrections in 1D12-2471, 1D12-2473, 1D12-2474, and 1D12-2475. Because the court failed to rule on this motion within sixty days in 1D12-2470 and 1D12-2472, however, the motion is deemed denied as to these two cases. See Fla. R.Crim. P. 3.800(b)(2)(B); Gallegos v. State, 63 So.3d 20 (Fla. 2d DCA 2011); Long v. State, 886 So.2d 280, 281 (Fla. 1st DCA 2004).

Anders counsel argues that, because the trial court imposed the $100 cost without informing Youman of his right to contest the amount of the lien, this cost must be stricken from the judgments in 1D12-2470 and 1D12-2472, and the case remanded for appropriate procedures. We agree. See § 938.29(5), Fla. Stat. (2008); Fla. R.Crim. P. 3.720(d)(1); In re Anders Briefs, 581 So.2d 149, 152 (Fla.1991) (allowing preserved minor sentencing errors imposing costs to be raised in an Anders appeal); Kirkland v. State, 106 So.3d 4, 5 (Fla. 1st DCA 2013) (striking the Public Defender fee and remanding for the trial court to advise defendant of the right to a hearing to contest it).

Counsel asserts also that, where the trial court imposed no fine, it was error to add the $20 cost as an “additional surcharge” in 1D12-2470 and 1D12-2472, which involved January 2009 offenses. This is true under the particular facts of these two cases. See § 938.06(1), Fla. Stat. (2008); Kirkland,, 106 So.3d at 5; cf. Spear v. State, 109 So.3d 232 (Fla. 1st DCA 2013) (rehearing en banc) (finding no error in imposing the $20 court cost pursuant to section 938.06, as amended, effective July 1, 2010).

Accordingly, we strike the $100 indigent legal assistance lien imposed under section 938.29(l)(a), Florida Statutes, and the $20 court cost imposed under section 938.06(1), Florida Statutes (2008), in 1D12-2470 and 1D12-2472, and remand for correction of the sentencing errors. We affirm the convictions and sentences in all other respects.

AFFIRMED in part, REVERSED in part, REMANDED.

BENTON, C.J., RAY, and MAKAR, JJ., concur.


text:
    Kevin DEAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0198.
    District Court of Appeal of Florida, First District.
    May 7, 2013.
    Kevin Dean, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012).

LEWIS, ROBERTS, and ROWE, JJ., concur.


text:
    Otis BLAXTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1734.
    District Court of Appeal of Florida, First District.
    May 7, 2013.
    Otis Blaxton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Enoch E. DINKENS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1762.
    District Court of Appeal of Florida, First District.
    May 7, 2013.
    Enoch E. Dinkens, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Calvin THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1857.
    District Court of Appeal of Florida, First District.
    May 7, 2013.
    Calvin Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, MARSTILLER, and SWANSON, JJ„ concur.


text:
    Bernard O’HALLAREN, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3284.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2013.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Chipman v. State, 875 So.2d 827 (Fla. 2d DCA 2004).

GRIFFIN, COHEN and BERGER, JJ., concur.


author: CIKLIN, J.

text:
    Kara NUNES, Appellant, v. Alexander R. NUNES, Appellee.
    No. 4D12-3854.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.

      Amy L. Cosentino of Law Office of Amy L. Cosentino, P.A., West Palm Beach, for appellant.
    Craig A. Boudreau, Wellington, for ap-pellee.
   CIKLIN, J.

The appellant appeals an order adjudicating her in civil contempt of court for willful failure to follow a court-ordered time-sharing plan. The appellant argues that she had insufficient notice of the contempt hearing. She also asserts that the contempt order failed to include sufficient factual findings concerning the best interests of the parties’ minor child and the alleged willfulness of her noncompliance. The appellant did not preserve her objection as to the issue of notice and did not demonstrate that the trial court failed to make requisite factual determinations. Accordingly, we affirm.

Factual Background

Kara Nunes (“the mother”) and Alexander Nunes (“the father”) were married and had a child. In June 2010, the trial court entered a final judgment of dissolution of marriage which incorporated a marital settlement agreement (“the agreement”). The agreement provided that the mother could relocate outside Florida, and that if she did move outside Florida “the [father’s] time sharing shall consist of Spring Break ... and four consecutive weeks each summer.” The mother relocated to Texas with the child.

The father filed a motion for contempt on July 10, 2012. The motion alleged that the father had sent an e-mail to the mother with the dates for his four consecutive weeks during the summer of 2012 and that the “[mother] failed to make the child available for summer timesharing” with the father. The father requested that the mother be found in willful contempt and that he be awarded “makeup time-sharing” and attorneys’ fees.

On August 13, 2012, the father’s attorney sent a notice of hearing to the mother in Texas, advising her that a contempt proceeding would be conducted on August 28. The first hearing was cancelled due to an unplanned courthouse closing during Tropical Storm Isaac.

On August 31, the father’s attorney sent a second notice of hearing to the mother, informing her that the rescheduled contempt hearing would be held on September 12. According to the mother, she did not learn of the rescheduled hearing until September 6. The mother claims that she sent an e-mail to the father’s counsel on September 11 that stated she could not attend the hearing.

On September 12, the trial court held the contempt hearing. The father was present with his attorney, but the mother did not appear. The parties did not provide a transcript of the hearing.

On September 21, the court entered an order finding the mother in civil contempt of court. The order set forth the provision of the marital settlement agreement that required the mother to make the child available for summer time-sharing. The order stated that the mother “willfully failed to comply” with the final judgment “through the [mother’s] own fault and neglect.” The order also stated the mother “is in willful contempt of court for deliberate failure and refusal to comply with the order of the court.” The contempt order made provisions for makeup time-sharing during the child’s break periods from school and ordered the mother to pay the father’s attorneys’ fees.

The mother filed a notice of appeal on October 22, 2012. After the mother filed her notice of appeal, she filed a motion to stay the order adjudicating her in contempt which the trial court denied. She then filed a motion for rehearing on the motion to stay the order adjudicating her in contempt.

Analysis

The mother appeals the contempt order on several grounds: (1) she lacked sufficient notice of the contempt hearing, (2) the trial court failed to make sufficient findings regarding her willful noncompliance with the time-sharing plan, and (3) the trial court failed to consider the best interests of the child in setting the dates for the makeup time-sharing.

“ ‘A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.’ ” Harris v. Hampton, 70 So.3d 747, 748 (Fla. 4th DCA 2011) (quoting DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005)).

Insufficient Notice

The record indicates that the second notice of hearing — made necessary because of the tropical storm — was delivered to the mother’s home twelve days before the day of the re-scheduled hearing. Taking the mother’s claims as true, she did not receive the notice until five days before the day of the hearing, and only three business days before the hearing (excluding the day she actually received the notice).

The mother failed to preserve any objection to the date of the re-scheduled hearing. “‘In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.’ ” Sunset Harbour Condo. Ass’n. v. Robbins, 914 So.2d 925, 928 (Fla.2005) (quoting Tillman v. State, 471 So.2d 32, 85 (Fla.1985)). The record before us includes no pre-appeal motion for continuance, motion for rehearing, motion for relief from judgment or even a pro se note from the mother to the trial judge that alleged the mother had insufficient notice of the hearing.

Because the mother failed to preserve this issue in any discernable manner whatsoever and in the absence of fundamental error, we decline to review it further.

Noncompliance with the Time-Sharing Plan

The mother also contends that she could not be held in contempt because the dissolution order was insufficiently clear regarding her duties to arrange for the time-sharing. “When a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order.” DeMello, 914 So.2d at 1093 (citation omitted). “A judge cannot base contempt upon noncompliance with something an order does not say. Under such circumstances, the standard of review is legal error, not abuse of discretion.” Harris, 70 So.3d at 748-49 (citations, alteration, and quotation marks omitted).

We determine that the time-sharing provision was clear in its dictates and left no doubt as to the mother’s responsibilities in that regard. The time-sharing provision laid out a specific procedure and timeline for the father to inform the mother of the summer time-sharing schedule and the father presented sufficient evidence that he had complied with the requirements applicable to him. The father alleged that the mother failed to make the child available for time-sharing and the court found that she willfully failed to comply-

The mother urges that “the trial court failed to make the requisite factual findings as to how the [mother] violated” the dissolution order’s time-sharing provisions. Florida courts “require that in order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order.” Id. at 749 (citation and quotation marks omitted).

We find that the trial court’s contempt order sufficiently detailed the mother’s noncompliance with the time-sharing provision of the final judgment. The trial court quoted the portion of the marital settlement agreement stating that the father had time-sharing for the summer and the order of contempt explicitly stated that the mother willfully failed to comply with the order through her own “fault and neglect.”

Even if the written order failed to adequately describe the mother’s noncompliance, we would affirm the trial court because the mother has failed to provide a transcript of the hearing. We will not assume that the trial court committed reversible error during the course of a hearing that we cannot review. See Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999) (“Absent a trial transcript, this court may reverse only if an error of law appears on the face of the final judgment.” (citation omitted)). The trial court very well may have orally pronounced its findings regarding the mother’s noncompliance at the contempt hearing. We will not speculate to the contrary.

Best Interests of the Child

The mother next asserts that the trial court erred in ordering makeup time-sharing without considering the best interests of the child. The applicable statute states:

When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court ... [s]hall, after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time-sharing. In ordering any makeup time-sharing, the court shall schedule such time-sharing in a manner that is consistent with the best interests of the child or children and that is convenient for the nonoffending parent and at the expense of the noncompliant parent.

§ 61.13(4)(c)l., Fla. Stat. (2012) (emphasis added).

The mother argues that the order adjudicating her in contempt must be reversed because the written order did not include any findings relating to the best interests of the child. The mother relies on Cheek v. Hesik, 73 So.3d 340 (Fla. 1st DCA 2011). In Cheek, the former wife appealed, among other things, an order granting the former husband makeup time-sharing. The First District reversed the makeup time-sharing orders because the trial court did not find that “the manner in which the makeup time-sharing was imposed was in the best interest of the child.... [T]he trial court did not make any findings concerning the best interests of the child, either in its written orders or its oral rulings. This was error.” Id. at 343 (citations omitted and emphasis added). The court also wrote that “to the extent [the finding of best interests of the child] is implicit in the trial court’s orders, it is not supported by competent substantial evidence.” Id. at 344.

While we agree with the mother and the First District that “[t]he best interests of the child are always the paramount concern in child custody and time-sharing matters,” id., we disagree with the mother’s conclusion that the written contempt order is deficient on its face because it does not use the words “best interests of the child.” We hold that while the statute directs the trial court to consider the best interests of the child in ordering makeup time-sharing, nothing in the statute compels the trial court to explicitly include this in the written order.

Our decision does not conflict with Cheek because we do not think that Cheek requires the trial court to include its finding that the makeup time-sharing is in the best interests of the child within the written order. Instead, we believe Cheek and section 61.13(4)(c) only require that the court consider the best interests of the child in reaching its makeup time-sharing decision. We note that a First District case decided after Cheek found that, at least under some circumstances, “the failure to make specific factual findings [regarding the best interests of the child in ordering makeup time-sharing], while not helpful for meaningful appellate review, is not fatal and does not compel reversal.” Delivorias v. Delivorias, 80 So.3d 352, 356 (Fla. 1st DCA 2011).

In the absence of a transcript of the hearing, we cannot find that the trial court failed to consider the best interests of the child. The better practice is for the trial court to thoroughly address the relevant considerations in its written order, but the failure to include and discuss these issues in the written order does not, in and of itself, compel reversal. See id.

We affirm the remaining issue without comment.

Affirmed.

WARNER and GROSS, JJ., concur.

      . Section 61.13(4)(d), Florida Statutes (2012) provides that a person who violates a time-sharing schedule "may be punished by contempt of court or other remedies as the court deems appropriate.” For the parent improperly deprived of time-sharing, the statutory remedy is makeup time-sharing at the expense of the noncompliant parent. See § 61.13(4)(c)l, Fla. Stat. (2012). Pursuant to section 61.13(4)(c)2, the court may also "order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to pay reasonable court costs and attorney’s fees incurred by the nonoffending parent to enforce the time-sharing schedule.”

      . As a preliminary matter, we note that after the mother filed her notice of appeal, the trial court was without jurisdiction to rule on her subsequent motions. See Campbell v. Campbell, 100 So.3d 763, 765 (Fla. 4th DCA 2012).

      . We take this opportunity to note that the laudable Palm Beach County Bar Association Standards of Professional Courtesy encourage attorneys to provide actual notice of hearings at least five business days in advance of the hearing. Palm Beach County Bar Association Standards of Professional Courtesy, http:// www.palmbeachbar.org/spc.php (last visited Mar. 22, 2013). While we acknowledge the potential difficulties with coordinating hearings with unrepresented persons, we encourage attorneys to schedule hearings with opposing counsel or pro se litigants at times convenient to both parties in order to avoid needless litigation.


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. W.D., a child, Appellee.
    No. 4D12-1372.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

In this appeal, the State challenges an order dismissing its petition for delinquency, filed in October of 2010 and charging W.D. with resisting an officer. By March of 2012, W.D. still had not been arraigned on the charge and the State still had not served W.D. and his parents/guardian with a summons. Relying upon section 985.0301(6), Florida Statutes (2012), which states “[t]he court may at any time enter an order ending its jurisdiction over any child,” the trial court dismissed the ease. The State insists the dismissal was in error. While the State raises a number of arguments, we find merit in only one: its claim that interpreting section 985.0301(6) to permit a trial court to dismiss a juvenile proceeding for no reasons other than those presented in this case would be contrary to the statute’s intent, infringe upon the State’s prosecutorial authority, and render the statute unconstitutional as violating separation of powers principles.

The probable cause affidavit reflects that, on September 23, 2010, Broward County sheriffs deputies were dispatched to a home in Hillsboro Beach as dispatch had received information that W.D., a minor missing from his home state of Indiana, might be at that location. When W.D. observed police through the glass door, he fled into the residence and hid in a locked closet. The officers had information that W.D. was on probation in Indiana and took him into custody on charges of “missing person” (count 1); violation of probation (count 2); and resisting arrest without violence based on the flight and the hiding in the closet (count 3). Initially, the circuit court entered orders requiring W.D. to be held at a juvenile detention center. Then, on September 28 and 29, 2010, the circuit court entered orders requiring the Department of Juvenile Justice to make arrangements to transport W.D. to Indiana and for release of W.D. to the custody of his father.

On October 7, 2010, after W.D. had been released to his father, the State of Florida filed a petition for delinquency, charging W.D. with resisting arrest without violence based upon his flight and hiding in the closet. As of March 19, 2012, W.D. still had not been arraigned. At the outset of the March 19 arraignment hearing, the trial court observed that this was the eleventh arraignment hearing; that the minor child was not present and was now in Indiana; and that the, minor and/or his parents had not been served with a summons. The prosecutor explained, “we could only try to serve him in Indiana.” The trial judge dismissed the case, making the following statement on the record:

You could try to serve him in Indiana, but the reason he was initially stopped was because he ran away from Indiana. Now he’s back in Indiana. And what he did is the-police officer told him to stop and ... he hid in a closet.
So, pursuant to 985.0301, subsection (6), which states that the Court may at any time enter an order ending its jurisdiction over any child, I’m going to dismiss this based on that and end the jurisdiction of the Court over this child.

The prosecutor objected, insisting the statute gave the court the authority to terminate jurisdiction only “once the case has been resolved.” The trial court noted the objection and entered an order dismissing the petition for delinquency.

Section 985.0301, Florida Statutes (2012), provides, in relevant part, that

(1) The circuit court has exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law.
(2) The jurisdiction of the court shall attach to the child and the case when the summons is served upon the child and a parent or legal or actual custodian or guardian of the child, or when the child is taken into custody with or without service of summons and before or after the filing of a petition, whichever first occurs, and thereafter the court may control the child and the case in accordance with this chapter.
(6) The court may at any time enter an order ending its jurisdiction over any child.

Here, the trial court acquired jurisdiction over W.D., pursuant to subsection (2) of the statute, when he was taken into custody. See § 985.0301(2), Fla. Stat. (2012) (“The jurisdiction of the court shall attach to the child and the case when the summons is served upon the child and a parent or legal or actual custodian or guardian of the child, or when the child is taken into custody with or without service of summons and before or after the filing of a petition, whichever first occurs ....”) (emphasis added). The trial court sought to terminate that jurisdiction by resort to subsection (6).

The language of subsection (6) is indisputably broad, providing the court may “at any time” enter an order terminating its jurisdiction over any child. Fundamental principles of statutory construction, however, require that the statutory language be interpreted in the context of the statute as a whole. See, e.g., Koile v. State, 934 So.2d 1226, 1233 (Fla.2006). And, with respect to termination of jurisdiction, the remainder of section 985.0301 is directed to the length of time that the court is permitted to retain jurisdiction following an adjudicatory hearing, i.e., subsection (5)(a) provides that, in the event the court adjudicates the child delinquent, it may retain jurisdiction until the child’s nineteenth birthday; subsection (5)(d) provides that for minors committed to high-risk programs the court cannot retain jurisdiction beyond the child’s twenty-second birthday; and subsection (5)(e) provides for the retention of jurisdiction until the child reaches twenty-one in the event the child is placed in certain enumerated programs. Considered in this light, subsection (6) is fairly viewed as authorizing the court to elect to end its jurisdiction over a child at any time following the initial adjudicatory hearing — not as permitting the trial court to use its discretion to terminate jurisdiction to put an end to the prosecution before the case ever reaches adjudication on the merits.

This reading of subsection (6) is further supported by the history of subsection (6). The language now found in subsection (6) once appeared in section 985.231, Florida Statutes (2005). See § 985.231(l)(f), Fla. Stat. (2005); Ch. 2006-120, § 5, Laws of Fla. Section 985.231 was entitled “Powers of disposition in delinquency cases” and all of its provisions directed to the discretion and alternatives available to the court subsequent to an adjudicatory hearing. In 2006, the legislature rewrote portions of chapter 985. The rewrite resulted in the language that once appeared in section 985.231(l)(f) being moved to the newly-created section 985.0301. The rewrite did not effect any substantive changes.

Finally, a construction of the statute limiting the application of subsection (6) to post-adjudicatory circumstances is necessary in order to avoid the statute’s being rendered unconstitutional. The separation of powers doctrine provides that one branch of government may not encroach upon the powers of another. See, e.g., Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260, 264 (Fla.1991). And, it is the state attorney, not the trial courts, who “has complete discretion in making the decision to charge and prosecute.” Cleveland v. State, 417 So.2d 653, 654 (Fla.1982); see also State v. Bauman, 425 So.2d 32, 34 (Fla. 4th DCA 1982) (“ ‘[T]he discretion of a prosecutor in deciding whether and how to prosecute is absolute in our system of criminal justice.’ ”) (quoting State v. Cain, 381 So.2d 1361, 1367 (Fla.1980)). Thus, under circumstances analogous to those here, Florida’s appellate courts have held the trial court lacked the authority to dismiss a case for the very reason that the pre-trial dismissal encroached upon the state attorney’s pros-ecutorial authority. See State v. D.D.B., 737 So.2d 1178, 1179 (Fla. 2d DCA 1999) (reversing dismissal of delinquency case precipitated by State’s failure to serve summons because, in dismissing the case, “the trial court exceeded its bounds and encroached upon the prosecutor’s authority”); State v. P.S., 587 So.2d 672, 672 (Fla. 5th DCA 1991) (holding trial court’s dismissal of case after the child, an Argentinean citizen, failed to appear for arraignment encroached upon State’s prose-cutorial authority).

Reversed and Remanded.

CIKLIN and GERBER, JJ., concur.


author: WARNER, J.

text:
    Brunna MARTINS, Appellant, v. MRG OF SOUTH FLORIDA, INC., a Florida Corporation, Appellee.
    No. 4D12-726.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.

      Juliana Gonzalez and Lawrence J. McGuinness of McGuinness & Gonzalez, P.A., Miami, for appellant.
    David H. Charlip of Charlip Law Group, LC, Aventura, for appellee.
   WARNER, J.

Brunna Martins appeals the trial court’s order of final summary judgment in favor of her former employer, MRG of South Florida, Inc., on her complaint for violations of the Fair Labor Standards Act (“FLSA”). She claims that many material issues of fact remain as to whether she was paid less than the minimum hourly wage because of various practices of MRG. We agree that material issues remain and reverse for further proceedings.

Martins filed suit against her former employer, MRG, for alleged FLSA violations while she worked as a cocktail waitress. In her complaint, Martins alleged that she was paid less than the legal minimum wage by virtue of the fact that MRG took a “tip credit” for hours Martins was in training and not earning tips. Martins also alleged that she was required to pay for her own uniform and was charged for customer walk-outs and breakages, also causing her hourly wage after tips to fall below the minimum wage. She further alleged that she was encouraged to stay after work and socialize with customers for about an hour a week, but was not paid for this time. Finally, Martins alleged that she was never paid commissions owed to her by MRG for bottle sales. MRG generally denied all of the allegations in the complaint, and moved for summary judgment.

In its motion for summary judgment, MRG asserted that even if taken as true, the allegations made by Martins did not establish any FLSA violation. Primarily, it argued that even if Martins was paid a reduced wage for training and was required to maintain her own uniform and pay for breakage and walkout expenses, Martins’ employment records and tax returns showed that she never earned less than $4.23 per hour, the allowable minimum wage in Florida for tipped employees. In support of its motion, MRG submitted the affidavit of its controller, stating that: MRG did not take any deductions from Martins’ pay; Martins’ work hours were never reduced; staying after hours to socialize with customers was never part of Martins’ job; and, Martins failed to turn in her bottle sales receipts within the time frame necessary for her to receive commissions. It also filed Martins’ deposition and accompanying exhibits, in which Martins testified that she was paid $4.23 an hour for training and “meetings.”

Martins filed affidavits and deposition excerpts in opposition to the motion, although they were late-filed. It is unclear whether the trial court considered them. Because of their untimeliness, on appeal, we have not considered them but rely on the complaint as well as the filings by MRG.

“The standard of review of an order granting summary judgment is de novo.” Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). “[Sjummary judgment should not be granted unless the facts are so clear and undisputed that only questions of law remain .... It is the burden of the moving party to conclusively prove that no genuine issue of material fact exists.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla.1999) (internal citation omitted). MRG fails to recognize this standard in its brief and repeatedly states that Martins failed to carry her burden of proof, entitling it to summary judgment.

FLSA requires that employers pay employees a minimum hourly wage. 29 U.S.C. § 206 (2006). During the time Martins worked for MRG, the federal minimum wage was $7.25 an hour. 29 U.S.C. § 206(a)(1)(C). FLSA contains a provision which allows an employer to pay its tipped employees less by taking a “tip credit” for the difference between the reduced wage and the regular minimum wage. 29 U.S.C. § 203(m). A “tipped employee” is defined as “any employee engaged in an occupation in which he [or she] customarily and regularly receives not less than $30 a month in tips.” 29 U.S.C. § 203(t). The highest tip credit an employer can take under the FLSA is minimum wage minus $2.13 per hour. 29 C.F.R. § 531.59(a) (2009). Under Florida law, the highest tip credit an employer can take is $3.02 per hour. Art. X, § 24(c), Fla. Const. Thus, during the relevant time period in Florida, an employer could pay a tipped employee direct wages as low as $4.23 an hour.

An employer who takes the maximum tip credit must demonstrate that the employee actually received at least that amount in actual tips. 29 U.S.C. § 203(m); 29 C.F.R. § 531.59(b). After tips, the employee must always earn at least the minimum wage, which in this case was $7.25 per hour. Importantly, “[t]he defendant bears the burden of establishing that it is entitled to claim the ‘tip credit.’ ... Unless the employer satisfies its burden of showing the applicability of the tip credit, the employee is ‘entitled to the full minimum wage for every hour worked.’ ” Ash v. Sambodromo, LLC, 676 F.Supp.2d 1360, 1369 (S.D.Fla.2009) (quoting Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 467 (5th Cir.1979)) (additional internal citation omitted).

MRG did not refute Martins’ claim that MRG took a “tip credit” for her time in training, because it claims that it was entitled to claim credit for training hours. Merely because Martins may have been a “tipped employee” does not mean that all hours that Martins worked allowed MRG to take a “tip credit” against the minimum wage. See, e.g., Fast v. Applebee’s Int'l Inc., 638 F.3d 872 (8th Cir.2011) (affirming district court’s order denying summary judgment in employer’s favor when employer took tip credit for non-tipped duties performed by wait staff in excess of 20% of hours worked); Myers v. Copper Cellar Corp., 192 F.3d 546, 549-50 (6th Cir.1999) (noting that 29 C.F.R. § 531.56(e) “illustrates] that an employee who discharges distinct duties on diverse work shifts may qualify as a tipped employee during one shift” but not another). Whether an employer can take tip credit against training depends upon the facts of each case as to whether an employee is a “tipped employee” for the hours for which the “tip credit” is being claimed. 29 C.F.R. §§ 531.51 & 531.59(b). Those facts are in dispute in this case, and thus MRG is not entitled to judgment as a matter of law.

MRG also has failed to conclusively refute Martins’ claim that her cost to purchase the required cocktail waitress uniform should have been deducted from her wages, thus reducing them below the minimum wage. While it claims that its required dress of certain tights, stockings, high-heels and corsets did not constitute a “uniform,” other courts have disagreed. See Reich v. Priba Corp., 890 F.Supp. 586, 596-97 (N.D.Tex.1995) (ruling that facts showed cocktail waitresses were required to purchase their own uniform consisting of black shoes, black bodysuit, tights, fishnet stockings, and a wide belt). If proven true, the uniform expenses claimed by Martins caused her to earn less than the minimum wage. Although MRG itself seems to acknowledge that Martins may have earned less than the minimum wage, it argues that there was no FLSA violation because her wages never fell below the reduced minimum wage for tipped employees, which was $4.23 per hour. However, a tipped employee must always earn at least the regular minimum wage after tips. 29 U.S.C. § 203(m); 29 C.F.R. § 531.59. Thus, by deducting the cost of the uniform from the cash wages paid, Martins was paid less than the minimum wage.

Summary judgment should also not have been entered on the customer walkout/breakage issue. MRG mistakenly argues that Martins has no claim on this issue because the facts show that MRG did not actually make any deductions from Martins’ pay for walk-outs and breakages. This does not mean, however, that Martins did not have to pay for such walk-outs and breakages. Indeed, Martins testified in her deposition that she was required to pay for customers’ walk-out tabs in cash, presumably out of her tip money. If the amount Martins paid in walk-outs caused her aggregate wages to fall below the minimum wage in a given week, an FLSA violation may have occurred. See Brennan v. Haulover Shark & Tarpon Club, Inc., 1986 WL 587 (S.D.Fla. Jan.27, 1986) (ruling that employer violated the minimum wage provisions by requiring waitresses to pay, out of their cash tips, for shortages caused by “walk-outs,” mistakes in addition, and returned credit card charges). Since the amount Martins paid for walk-outs and breakages is an issue of fact to be determined, summary judgment was not appropriate.

Martins next argues that there were issues of fact regarding whether she was required to stay after her shift and market to customers without pay. MRG counters that Martins was not marketing in furtherance of MRG, but was just trying to get free drinks. This is a classic disputed issue of fact. It also asserts that even if Martins was marketing, it was not required to pay her for the time because it was postliminary to her principal employment activities. Finally, it argues that even if Martins was performing a principal employment activity, there was no FLSA violation because the uncompensated time was de minimis.

MRG is correct that under the FLSA, an employer does not have to compensate an employee for activities that are preliminary or postliminary to the employee’s principal employment duties. 29 U.S.C. § 254(a)(2). However, establishing the activity being conducted and whether that activity was preliminary or postliminary requires factual determinations. See Nichols v. City of Chicago, 789 F.Supp. 1488, 1441 (N.D.Ill.1992) (ruling that an employer was not entitled to summary judgment because “[wjhether an activity is preliminary or postliminary to a principal activity is a question of fact”); Mitchell v. Se. Carbon Paper Co., 228 F.2d 934, 938 (5th Cir.1955) (the determination of whether an uncompensated activity is a principal employment activity is a question of fact).

Although there is no FLSA violation where the matter in issue concerns a de minimis amount of time beyond the scheduled working hours, the issue of whether the time is de minimis is itself an issue of fact. The federal regulation pertaining to the de minimis doctrine allows for only minutes or seconds, not extended periods of time:

In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis. (Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)) This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.

29 C.F.R. § 785.47 (emphasis supplied).

In considering whether an activity is de minimis, the following factors apply: “ ‘(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.’” Burton v. Hillsborough Cnty., Fla., 181 Fed.Appx. 829, 838 (11th Cir.2006) (quoting Lindow v. U.S., 738 F.2d 1057, 1063 (9th Cir.1984)). MRG did not present any evidence that it would be difficult for it to record the additional time spent by Martins marketing, the amount of aggregate time claimed is a significant amount (about 30 hours), and Martins claims that the additional work occurred on a regular, weekly basis. MRG failed to conclusively refute Martins’ claim.

Lastly, Martins argues that whether MRG owes her commissions for bottle sales is also a disputed issue of fact. MRG argues that Martins did not comply with its policies regarding the timeframe for receiving commissions. However, Martins testified in her deposition that MRG did not have any such policies. Accordingly, MRG’s entire argument rests on an unresolved issue of fact of the existence of policies that Martins supposedly violated. Summary judgment was not appropriate.

For the foregoing reasons, we conclude that material issues of fact remain on every issue raised by Martins. We therefore reverse the final summary judgment for further proceedings on Martins’ claims.

GERBER and LEVINE, JJ., concur.

      . Martins claimed she was required to socialize with customers after work for about an hour a week, and she worked for MRG for about 30 weeks.


author: VILLANTI, Judge.

text:
    BACK BAY AT CARILLON LLC, a Delaware limited liability company; and Echelon Development LLC, a Delaware limited liability company, Appellants, v. QUALITY PROPERTIES ASSET MANAGEMENT COMPANY, as Assignee of Bank of America, N.A.; Andrew Banish; Matthew Milask a/k/a Mark Milask; Will Lumpkin a/k/a Wil Lumpkin; Sonceray Lumpkin; Jung Suh; Kim Goun; Malic Vann; Telap Tan; Larry Vandervelde; Kathy Vandervelde; Greg Titus; Saisunee Rungfar a/k/a Saisunee Titus; William Vanderford a/k/a Bill Vanderford; Renee Vanderford; Mandy Zubrick a/k/a Mandy Zurbinck; Donald Zubrick a/k/a Donald Zurbinck; Daryn Young; Monique Gentile; Michael Watkins; Ayakao Watkins; William James a/k/a Bill James; Lisa James; Zawdie Little; Angelique Little; Richard Glenn Cilimberg; Isabel Cilimberg; Shawn Patterson; Jamila Patterson; Jason Ray; Rachel Fox a/k/a Rachel Ray; Daria Feazell; and Daria P. Simmons, Appellees.
    No. 2D12-2455.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.

      Marie Tomassi, Roberta A. Colton, and Stephanie C. Lieb of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, for Appellants.
    John M. Mullin, Richard L. Petrovich, and Stephanie C. Vellios of Tripp Scott, P.A., Fort Lauderdale, for Appellee Quality Properties Asset Management Company-
    No appearance for remaining Appellees.
   VILLANTI, Judge.

Back Bay at Carillon LLC and Echelon Development LLC (collectively “Appellants”) appeal the final deficiency judgment entered against them after Bank of America foreclosed on a construction loan and then assigned the foreclosure judgment to Quality Properties Asset Management Company. Quality Properties has conceded that the deficiency judgment fails to account for $181,671.11 in proceeds that Quality Properties — through Bank of America — received from the court-appointed receiver. In addition, the record shows that the deficiency judgment fails to account for the value of certain tangible personal property that Appellants turned over to the receiver. Hence, we reverse the deficiency judgment and remand for the trial court to enter a corrected judgment that accounts for Quality Properties’ receipt of these assets. In all other respects, we affirm.

Appellants borrowed substantial sums of money from Bank of America to finance the construction of a luxury townhome community in St. Petersburg. When the housing bubble burst, Appellants ceased making payments on their loans. After a negotiated forbearance failed, Bank of America filed a foreclosure complaint, and a receiver was appointed by the court to manage the property. The receiver’s initial inventory reflected that Appellants had turned over certain tangible personal property, including equipment and furnishings in the clubhouse as well as in the three model townhomes. In addition, during the coursé of the foreclosure proceedings, the receiver collected rents from the existing tenants; paid for maintenance, repairs, taxes, and general upkeep of the property; and paid the balance of the collected funds — approximately $400,000 — to Bank of America.

In November 2009, the trial court entered a consent foreclosure judgment in the amount of $30,885,991.59. Bank of America assigned the foreclosure judgment to Quality Properties, its wholly-owned subsidiary, and after the • foreclosure sale Quality Properties filed a motion seeking a deficiency judgment. The trial court held an evidentiary hearing on the motion and ultimately .entered a deficiency judgment against . Appellants in the amount of $17,485,991.59.

In this appeal, Appellants have raised numerous issues relating to the amount of the deficiency judgment. However, we find merit only in the argument that the trial court erred by not accounting for certain payments and property that Quality Properties received prior to the entry of the deficiency judgment. Therefore, we reverse and remand for limited adjustments to the amount awarded.

Cash on Hand

Appellants first argue that the evidence before the trial court showed that Quality Properties received $181,671.11 in proceeds from the receiver after the foreclosure judgment was entered, that these proceeds were not accounted for in the foreclosure judgment (nor could they have been since they post-dated that judgment), and that these proceeds should have been accounted for when the trial court determined the amount of the deficiency judgment but were not. Quality Properties concedes that the deficiency judgment is overstated by the amount of these proceeds, and the record supports this concession. We therefore reverse the deficiency judgment due to this error. On remand, the trial court shall reduce the deficiency judgment by $181,671.11 to account for Quality Properties’ receipt of these proceeds.

Tangible Personal Property

Appellants also argue that the deficiency judgment fails to account for the value of certain tangible personal property that they turned over to the receiver when the foreclosure complaint was first filed. At the deficiency hearing, Appellants’ corporate representative testified that the value of this tangible personal property was $100,000. Quality Properties does not dispute that it received this tangible personal property, nor does it dispute that the value of the property was not accounted for in the deficiency judgment. Instead; it argues only that the testimony from Appellants’ corporate representative concerning the value of that property was incompetent. However, the record shows that the corporate representative was qualified to testify as to the value of the property. See Witchell v. Londono, 707 So.2d 796, 799 n. 2 (Fla. 1st DCA 1998) (noting that as a general rule “an officer of a corporation is qualified to testify regarding value if he has experience in the management of the affairs of the corporation and has a knowledge of relevant values”). Moreover, Quality Properties neither impeached the corporate representative’s testimony nor offered any competing evidence to establish a different value for the tangible personal property it admits it received. Under these circumstances, we must agree with Appellants that the deficiency judgment is overstated by the undisputed value of the tangible personal property. Hence, on remand, the trial court shall reduce the deficiency judgment by $100,000 to account for the value of the tangible personal property Quality Properties received.

In sum, we reverse the deficiency judgment and remand for the trial court to credit Appellants for the $181,671.11 in cash and $100,000 in tangible personal property that Quality Properties received but which was not accounted for during the foreclosure or deficiency judgment proceedings. In all other respects, the final deficiency judgment is affirmed.

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

DAVIS and KHOUZAM, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    SARASOTA FACILITY OPERATIONS, LLC, a Foreign Limited Liability Company, and Consulate Health Care, LLC, a Florida Limited Liability Company, Appellants, v. John MANNING, as attorney-in-fact for Dorothy Evans, Appellee.
    No. 2D12-3913.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.

      Jason A. Watson, Daniel E. Dias, and Antonio A. Cifuentes of Maneuso & Dias, P.A., Tampa, for Appellants.
    Damian B. Mallard of Mallard Law Firm, P.A., Sarasota, for Appellee.
   NORTHCUTT, Judge.

Dorothy Evans suffered injuries while in the care of a nursing home, Consulate Health Care of Sarasota, whose license holder is Sarasota Facility Operations, LLC. Evans’s grandson, John Manning, who holds her power of attorney, sued the nursing home entities for negligence. They moved to compel arbitration under an agreement Manning signed on Evans’s behalf. The circuit court denied their motion and they filed this nonfinal appeal challenging that decision. See Fla. R. App. P. 9.130(a)(3)(C)(iv). We reverse.

The pertinent facts of this case are essentially undisputed. We review de novo the circuit court’s application of the law to those facts. New Port Richey Med. Investors, LLC v. Stern ex rel. Petscher, 14 So.3d 1084, 1086 (Fla. 2d DCA 2009). As was the case in Stem, the only issue raised in this appeal is the enforceability of the arbitration agreement. See id. at 1087.

The agreement provided that it was governed by the Federal Arbitration Act and that the damages to be awarded in the arbitration were to be determined in accordance with Florida law applicable to a comparable civil action. The instant dispute stemmed from two provisions stating (1) that the National Arbitration Forum (NAF) was designated as the arbitrator and the arbitration was to be conducted by a panel of three arbitrators selected from the NAF Code panel; and (2) that the arbitration was to be conducted in accordance with the Code of Regulations of the NAF. However, under a consent judgment entered in Minnesota, the NAF was barred from arbitrating consumer disputes. Therefore, the parties in this case could not abide by the provision of the agreement addressing the arbitration forum and the pool from which the arbitrators were to be drawn.

In the circuit court and here, Manning argued that because the NAF was unavailable to arbitrate, the supreme court’s decision in Shotts v. OP Winter Haven, 86 So.3d 456 (Fla.2011), required the nullification of the entire arbitration agreement. He contended that the circuit court was without authority to appoint replacement arbitrators and that it must invalidate the entire agreement because the NAF rules were unavailable. The circuit court agreed with this position. We do not.

Both the federal and the Florida arbitration acts contain provisions addressing what a court should do when the agreed-upon arbitrators are unavailable:

If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.

9 U.S.C. § 5 (2012).

If an agreement or provision for arbitration subject to this law provides a method for the appointment of arbitrators or an umpire, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or if an arbitrator or umpire who has been appointed fails to act and his or her successor has not been duly appointed, the court, on application of a party to such agreement or provision shall appoint one or more arbitrators or an umpire. An arbitrator or umpire so appointed shall have like powers as if named or provided for in the agreement or provision.

§ 682.04, Fla. Stat. (2012).

In Stem, this court reversed the circuit court’s finding that the unavailability of the named arbitrators rendered an arbitration agreement unenforceable. Stern, 14 So.3d at 1087. The American Arbitration Association, the named arbitrator in the Stem agreement, had ceased to accept cases like the one presented. Relying on section 682.04, we held that the arbitration agreement was not invalid merely because the named forum was unavailable to conduct the arbitration. Instead, we noted, the circuit court must appoint other arbitrators. Id. at 1087. The Stem reasoning applies equally where, as here, the arbitration agreement provides that it is governed by the Federal Arbitration Act.

Manning contends that this court likely would have come to a different result if Stem had been decided after Shotts. Not so, as evidenced by our recent reliance on Stern in a post-Shotts decision, Spring Lake NC, LLC v. Figueroa, 104 So.3d 1211 (Fla. 2d DCA 2012) (stating that both the federal and the Florida arbitration acts authorize the circuit court to appoint new arbitrators when none are named). Shotts simply is not pertinent to the issue discussed in Stem.

The issue in Shotts was not the unavailability of an arbitration forum or of the forum’s arbitrators. The question posed there was whether the rules of a particular arbitration forum, the American Health Lawyers Association (AHLA), were void as against public policy because they limited the remedies available to a litigant. The supreme court approved the analysis in Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA 2005), a case that, like Shotts and like this case, involved a nursing home arbitration. Blankfeld, determined that section 606 of the NHLA rules was contrary to public policy because it limited the statutory remedies available in the Nursing Home Resident’s Act, § 400.023(2), Fla. Stat. (2001). Blankfeld, 902 So.2d at 298.

The Shotts court agreed with the Blank-feld analysis and held that the AHLA rules violated Florida’s public policy. Shotts, 86 So.3d at 474-75. The court then turned to the question of whether the provision requiring arbitration under the AHLA rules could be severed from Shotts’s arbitration contract. Again, it adopted the reasoning of a Fourth District case, Place at Vero Beach, Inc. v. Hanson, 953 So.2d 773 (Fla. 4th DCA 2007), and concluded that the provision was not severable, even though the agreement contained a severability clause, because the AHLA rules went to the essence of the agreement. “If the provision were to be severed, the trial court would be forced to rewrite the agreement and to add an entirely new set of procedural rules and burdens and standards, a job that the trial court is not tasked to do.” Shotts, 86 So.3d at 478. Moreover, the court wrote, if the provision were severed, a court would be hard pressed to determine whether the rest of the contract was supported by valid legal promises. For these reasons, Shotts held that the offending provision was not sever-able, and it invalidated the entire arbitration agreement. Id. at 480-81.

Our case differs from Shotts in that Manning has never argued that the NAF rules violate public policy. As far as we can ascertain from the limited appendices in this appeal, the rules were never presented to the court, and the court never had an opportunity to determine whether they violate public policy. Without such a determination, the circuit court’s ruling that Shotts mandated invalidating the entire agreement was error.

The nursing home defendants’ brief represents that the NAF rules are available. If that is the case, and if they contain language limiting Manning’s remedies, they might render the entire arbitration agreement unenforceable under Shotts. But if the rules are merely unavailable, that situation in itself does not mean that the agreement must be voided. See Premier Real Estate Holdings, LLC v. Butch, 24 So.3d 708, 710 (Fla. 4th DCA 2009) (citing Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir.2000) for the proposition that, under the Federal Arbitration Act, the fact that the NAF had dissolved did not destroy an arbitration provision in a contract). Butch held that a failure to designate the rules governing the arbitration did not invalidate an arbitration clause when the law governing the arbitration was set out in the agreement. Id. at 710-11. Here, the arbitration contract provides that it is governed by the Federal Arbitration Act and that damages shall be determined by the Florida law applicable to a comparable civil action.

We reverse the circuit court’s order denying the motion to compel arbitration and we remand for further proceedings.

KELLY and LaROSE, JJ., Concur.

      . Brown v. ITT Consumer Financial Corp., 211 F.3d 1217, 1222 (11th Cir.2000), suggests that the NAF has been dissolved.

      . The AHLA was formerly known as the National Health Lawyers Association (NHLA).

      . Section 606 states:
      [T]he arbitrator may not award consequential, exemplary, incidental, punitive or special damages against a party unless the arbitrator determines, based on the record, that there is clear and convincing evidence that the party against whom such damages are awarded is guilty of conduct evincing an intentional or reckless disregard for the rights of another party or fraud, actual, or presumed.

        See Blankfeld, 902 So.2d at 298.

      . That result is highly unlikely, however, because the agreement itself provides that “the damages are to be determined in accordance with Florida law applicable to a comparable civil action."


author: BLACK, Judge.

text:
    Donald GOUDY, Appellant, v. Vicky-Jo DUQUETTE, Appellee.
    No. 2D12-1593.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.
    Gregg Horowitz, Sarasota, for Appellant.
    Vicky-Jo Duquette, pro se.
   BLACK, Judge.

Donald Goudy challenges the final judgment of injunction for protection against repeat violence entered in favor of Vicky-Jo Duquette. Mr. Goudy argues that there was insufficient evidence of violence or stalking to support the injunction. We agree and reverse.

Injunctive relief from repeat violence is available pursuant to section 784.046, Florida Statutes (2011). Repeat violence is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or petitioner’s immediate family member.” § 784.046(l)(b). A person is guilty of “stalking” for purposes of this statute if he “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.” § 784.048(2). And “harass” is defined as “to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(l)(a). A “course of conduct” is a “pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” § 784.048(l)(b). “In determining if an incident causes substantial emotional distress, courts use a reasonable person standard, not a subjective standard.” Slack v. Kling, 959 So.2d 425, 426 (Fla. 2d DCA 2007).

“To support an injunction against repeat violence, each incident of violence must be proven by competent, substantial evidence.” Smith v. Melcher, 975 So.2d 500, 502 (Fla. 2d DCA 2007). In this case we must “assess[ ] whether there was competent, substantial evidence to support a finding of fact on an issue involving both ‘reasonableness’ and ‘substantial’ distress.” Jones v. Jackson, 67 So.3d 1203, 1204 (Fla. 2d DCA 2011) (Altenbernd, J., concurring). However, as in Jones, we are doing so without the benefit of those findings of fact as neither the order on appeal nor the record on appeal contain findings of fact. See id.

The statutory definitions of stalking and harassment require repeated acts and a course of conduct, respectively. In this case, Ms. Duquette — Mr. Goudy’s daughter’s dance team coach — alleged that she had been a victim of repeat violence due to a telephone call, one face-to-face encounter, and three “following” encounters.

During the telephone call Mr. Goudy told Ms. Duquette “he wasn’t willing to accept [her decisions regarding his daughter’s participation on the dance team] anymore.” This does not meet the statutory requirements for even a single act of harassment. First, a reasonable person would not have suffered substantial emotional distress as a result of the conversation, however one-sided or hostile it might have been. See Jones, 67 So.3d at 1204 (reversing injunction where threatening phone calls and text messages “would not have caused a reasonable person substantial emotional distress”); Slack, 959 So.2d at 426 (reversing injunction where two phone messages were insufficient for reasonable person to suffer substantial emotional distress). Second, both parties agreed that the stated purpose of the call was to address Mr. Goudy’s daughter’s participation in a dance team competition. This was a legitimate purpose. See Alter v. Paquette, 98 So.3d 218, 219 (Fla. 2d DCA 2012) (concluding that text messages seeking repayment of loan were made for legitimate purpose).

In considering the face-to-face encounter, the trial court could have properly determined that the incident in the high school parking lot was a single act of stalking. Ms. Duquette’s testimony was competent, substantial evidence that Mr. Gou-dy willfully and maliciously followed Ms. Duquette on that evening. However, a single incident composed of multiple actions is not a course of conduct. See Smith, 975 So.2d at 502-03; Poindexter v. Springer, 898 So.2d 204, 207 (Fla. 2d DCA 2005). “Multiple acts stemming from a single violent incident do not constitute ‘repeat violence’ under section 784.046 where those acts were not separated by time or distance.” Levy v. Jacobs, 69 So.3d 403, 405 (Fla. 4th DCA 2011). Thus, in order to obtain the injunction, Ms. Du-quette needed to establish a second incident of stalking.

The alleged “following” incidents, while separated by time and distance sufficient to be a course of conduct, do not otherwise meet the statutory requirements for harassment. Mr. Goudy’s appearance at the dance team competition location, the team’s hotel, and a nearby restaurant, although viewed by Ms. Duquette as following, served legitimate purposes. See Alter, 98 So.3d at 219; Poindexter, 898 So.2d at 207. Mr. Goudy drove his daughter — a member of the dance team — to the competition to see her teammates perform, to the hotel to visit with her teammates, and to a restaurant for dinner. Moreover, both parties testified that Mr. Goudy did not speak with Ms. Duquette at any of the locations; he did, however, according to Ms. Duquette, “stare [her] down” and “make his presence known.” These acts are not sufficient to cause a reasonable person emotional distress.

Without repeated harassment or malicious following there was no proof of stalking, and without stalking there was no proof of repeat violence. See Jones, 67 So.3d at 1204. Therefore, the evidence below did not support the trial court’s order granting the injunction against repeat violence.

The injunction entered against Mr. Gou-dy is reversed, and we remand with instructions to the trial court to dismiss Ms. Duquette’s petition. See Poindexter, 898 So.2d at 207.

Reversed and remanded with instructions.

NORTHCUTT and DAVIS, JJ., Concur.


author: NORTHCUTT, Judge. LaROSE, Judge,

text:
    Gary Morgan STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4098.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.
    Bryant R. Camareno of Bryant R. Ca-mareno, P.A., Tampa, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

A jury convicted Gary Stanley of several lewd and lascivious crimes and of kidnapping. Of the several issues Stanley raises on appeal, we affirm on all but one — his claim that the evidence was insufficient to support his kidnapping conviction. We reverse that conviction and the sentence imposed. We remand to the circuit court with instructions to enter a conviction on the lesser included offense of false imprisonment and to sentence Stanley for that crime.

The State charged Stanley with kidnapping under section 787.01(l)(a)(2), Florida Statutes (2010). That statute provides:

(l)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
2. Commit or facilitate commission of any felony.

Our supreme court remarked, in Mobley v. State, 409 So.2d 1031, 1084 (Fla.1982), that if the quoted statutory subsection were literally construed it would apply to any criminal conduct that inherently involved confinement, such as a sexual battery. In order to avoid this result, the court later adopted a test to determine whether a particular confinement or movement during the commission of another crime constituted kidnapping:

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Faison v. State, 426 So.2d 963, 965-66 (Fla.1983) (approving the test set forth in State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)).

The confinement here did not meet any prong of the Faison test. Stanley and the victim were alone in a house and they argued with each other in the victim’s bedroom. Stanley threw the victim onto her bed and held her down while he placed tape over her mouth and taped her hands together. Next he turned her over and committed sexual acts. Immediately thereafter, he bit through the tape and the victim was able to remove it from her mouth and hands. She then went to a bathroom. When she returned, Stanley was no longer in her bedroom. She dressed and left the residence.

The victim’s confinement was minor and so did not meet prong (a) of the Faison test. Stanley merely prevented the victim from leaving her bed. And the confinement was inherent in the nature of the crime; Stanley could not commit the unwanted sexual acts without restraining the unwilling victim, so prong (b) of the test was not met. “[T]here can be no kidnapping where the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.” Berry v. State, 668 So.2d 967, 969 (Fla.1996). Concerning prong (c) of the Faison test, the supreme court has held that to constitute kidnapping, the initial confinement must be intended to ease the commission of the crime or to lessen its detection and must have some significance independent of the crime underlying the kidnapping. Ferguson v. State, 533 So.2d 763, 764 (Fla.1988). There was no one else in the residence at the time and Stanley confined the victim solely to commit the sexual acts. While he taped the victim’s mouth and hands, he bit through the tape and released her from confinement as soon as the sexual assault was over. She was able to leave the scene shortly after the sexual acts took place and was able to quickly report the crime to law enforcement. This confinement did not rise to the level of kidnapping. See, e.g., Sanders v. State, 905 So.2d 271 (Fla. 2d DCA 2005).

The jurors were instructed on the kidnapping charge and on the lesser included offense of false imprisonment. The evidence supports the lesser crime. See § 787.02(l)(a) (defining false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will”). We reverse Stanley’s kidnapping conviction and the sentence imposed for that crime, and we remand with directions to the trial court to enter judgment for false imprisonment and to sentence him for that crime. See § 924.34, Fla. Stat. (2010).

Affirmed in part, reversed in part, and remanded.

WALLACE, J., Concurs.

LaROSE, J., Concurs with opinion.

LaROSE, Judge,

Concurring.

I concur in the result reached by the court. I write to express my view that the kidnapping conduct described in the record satisfies two of the three factors outlined in Faison.

The court concludes that the binding of the victim’s mouth and hands is slight, inconsequential, and incidental to the sex offenses. I must disagree. Stanley bound the victim’s hands with tape behind her back; he taped her mouth shut with tape circling her head. Stanley securely bound the victim, restraining any movement and silencing any cries for help, then brutally forced himself on her. To mischaracterize the conduct minimizes the trauma associated with the crimes.

I also cannot agree that the vicious binding was inherent in the nature of the sexual assaults. Although the binding undoubtedly eased Stanley’s task, I cannot see that the binding was a necessary adjunct of the underlying sexual offenses.

But because the binding did make “the other crimefs] substantially easier of commission,” I must agree that the State did not establish the crime of kidnapping under the Faison factors. See Faison, 426 So.2d at 965.

      . The State correctly argues that the Faison test is not applicable when the kidnapping charge is based on section 787.01(l)(a)(3). See Conner v. State, 19 So.3d 1117 (Fla. 2d DCA 2009). But Stanley was not charged under that subsection; he was charged under subsections 787.01(l)(a)(2) and 787.01(3). The latter statute addresses kidnapping for the purpose of committing sexual acts on a child under thirteen. The portion of the information that charges kidnapping tracks the language of these two statutes. The victim was thirteen years old at the time of the crime, and did not fit within the dictates of section 787.01(3). It appears that at some point the State dismissed the charge under that section.


author: LaROSE, Judge.

text:
    Tanita M. DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-46.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

Tanita Dixon appeals the trial court’s order withholding adjudication and sentencing her to eighteen months of probation after a negotiated plea to possession of alprazolam (Xanax) and amphetamine (Adderall). See §§ 893.13(6)(a); 893.03(4)(a), (2)(c)(2), Fla. Stat. (2010). Ms. Dixon reserved for appeal the disposi-tive denial of her motion to dismiss the alprazolam charge. See Fla. R. App. P. 9.140(b)(2)(A)(i). We reject without further discussion Ms. Dixon’s argument that section 893.13 is unconstitutional. See State v. Adkins, 96 So.3d 412 (Fla.2012). But, because the trial court otherwise erred in denying her motion to dismiss the alprazolam charge, we reverse, in part.

The State charged Ms. Dixon with possessing two loose tablets of alprazolam and seventy-two capsules of Adderall. She claimed that she had a prescription for the alprazolam and that the Adderall belonged to her son. Ms. Dixon moved to dismiss the alprazolam charge. Her motion included a pharmacy printout showing an alprazolam prescription was filled for Ms. Dixon and a copy of an alprazolam prescription for her. The State filed a traverse stating, in pertinent part, as follows:

The only evidence of a valid prescription presented by the defendant is an unverified pharmacy profile from Friends Pharmacy. On November 1, 2011 the undersigned spoke to a woman named Barbara at Friends Pharmacy. Barbara indicated that in order to obtain information a fax on letterhead must be provided. The State complied with this request (see attached Exhibit A) and has yet to receive a response. The undersigned has also attempted several times to locate Dr. Burton Feinerman by calling several offices where that doctor may have practiced. That doctor cannot be located. The defendant has not provided any additional information to facilitate this verification process.
The State asserts that there is a prima facie case and the defendant’s motion should be denied.

Ms. Dixon argues that the State’s traverse was insufficient. We agree.

Florida Rule of Criminal Procedure 3.190(d) provides:

Traverse or Demurrer. The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted unless specifically denied by the state in the traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss. The demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.

“Rule 3.190(c)(4) provides for dismissal of a charge against a defendant when ‘[tjhere are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. State v. Yarn, 63 So.3d 82, 84 (Fla. 2d DCA 2011) (quoting State v. Kalogeropolous, 758 So.2d 110, 111 (Fla.2000)). Under this rule, “[i]t is the ‘defendant’s burden to specifically allege and swear to the undisputed facts in a motion to dismiss and to demonstrate that no prima facie case exists upon the facts set forth in detail in the motion.’ ” State v. Nunez, 881 So.2d 658, 660 (Fla. 3d DCA 2004) (quoting State v. Siegel, 778 So.2d 426, 427 (Fla. 5th DCA 2001)). Ms. Dixon’s motion met that burden by setting forth her defense that she had a valid prescription with evidence to support her defense.

Rule 3.190(d) requires the State’s traverse to deny with specificity the material fact(s) alleged in the motion. “The purpose of such a motion is to test the legal sufficiency of the underlying case, i.e. whether there is a dispute of material fact (not just a dispute of unsupported conclu-sory allegations) or whether there exists a legal defense that would summarily decide the case.” Nunez, 881 So.2d at 660 (citing Siegel, 778 So.2d at 427; Kalogeropolous, 758 So.2d at 111). To overcome a motion to dismiss, the State’s traverse “must bring forward facts sufficient to show only the ‘barest prima facie case.’ ... And to establish the ‘barest prima facie case,’ the State must show only that a reasonable jury could find the defendant guilty of the charged crime under the most favorable construction of the evidence.” Yarn, 63 So.3d at 85 (citations omitted). “If the State files a sworn traverse that establishes a prima facie case of guilt, the motion to dismiss must be denied.” Id.

Here, the traverse offered no facts to counter Ms. Dixon’s factual assertions. Rather, it offered only an unsupported eonclusory allegation that Ms. Dixon did not have a valid prescription, based only on its statement that Ms. Dixon’s pharmacy printout in her sworn motion was “unverified” and that the doctor had not been located. It presented no evidence that the prescription was invalid or a forgery. The traverse failed to show that a reasonable jury could find Ms. Dixon guilty under the most favorable construction of the evidence, which then consisted of only the undisputed fact that Ms. Dixon possessed the alprazolam, her sworn assertion that she had a valid prescription, and a copy of a prescription and pharmacy printout showing that Friends Pharmacy had filled it. Therefore, we reverse as to this point.

Reversed in part, affirmed in part, and remanded for resentencing.

NORTHCUTT and KELLY, JJ., Concur.

      . Ms. Dixon does not challenge her conviction of possession of amphetamine. The trial court sentenced her to eighteen months’ probation.