text:
    TOWN OF JUPITER, Florida, Petitioner, v. BYRD FAMILY TRUST, Respondent.
    No. 4D13-2566.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2014.

      Thomas J. Baird and Ashlee A. Richman of Jones, Foster, Johnston & Stubbs, P.A., Jupiter, for appellant.
    Ronald E. Crescenzo and Gregory S. Kino of Ciklin Lubitz Martens & O’Con-nell, West Palm Beach, for appellee.
   GROSS, J.

In this second-tier certiorari proceeding, the Town of Jupiter seeks review of a circuit court decision reversing in part a magistrate’s order in a code enforcement proceeding which imposed fines for the Byrd Family Trust’s unauthorized removal of 109 mangrove trees. Finding no departure from a clearly established principle of law, we deny the petition.

“Second-tier certiorari is not a second appeal; it is extraordinarily limited, and narrow in scope.” Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. Ins. Co., 103 So.3d 866, 868 (Fla. 4th DCA 2012). Review is limited to whether the circuit court afforded procedural due process and whether it departed from a clearly established principle of law in such a way as to cause a miscarriage of justice. Id. (citing Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010)); Kirrie v. Indian River Cnty Code Enforcement Bd., 104 So.3d 1177, 1179 (Fla. 4th DCA 2012). “Ordinary legal errors, or application of the correct law incorrectly under the facts, are not sufficient grounds for a district court to grant second-tier certiorari.” Advanced Chiropractic, 103 So.3d at 868.

The circuit court opinion described the code enforcement proceedings as follows:

On December 16, 2010, the Town received a complaint that mangrove trees had been removed from the Trust’s property and that the surrounding area had been filled with sand. After an investigation, the Town found that mangroves had indeed been removed and that sand had been deposited on the property. The Trust did not have a permit to remove the mangroves or to place sand on the property. Consequently, on December 20, 2010, the Town issued a stop work order on the property to prevent the further removal of any mangrove trees. Thereafter, on February 16, 2011, the Town issued a Notice of Violation related to the removal of the mangroves from the Trust’s property and relating to the placement of sand on the property without a permit.
The Trust filed a Motion to Dismiss the Town’s Notice of Violation, challenging, inter alia, the Special Magistrate’s jurisdiction to regulate mangroves. On October 7, 2011, the Special Magistrate granted, in part, and denied, in part, the Motion to Dismiss. Significant to this appeal, the Special Magistrate found that the Town had jurisdiction to enforce state law relating to mangroves.
On January 23, 2012, the Special Magistrate issued a Violation Order finding that the Trust violated both Section 26-99 of the Jupiter Town Code, by failing to adhere to state statutes regulating the alteration of mangroves, and Section 24-83 of the Jupiter Town code by failing to obtain a permit for the placement of sand on the property. Based on these findings, the Special Magistrate fined the Trust $15,000 for each mangrove tree removed from the property resulting in a total fine of $1,635,000. The Special Magistrate also fined the Trust $15,000 for the placement of sand on the property without a permit. Finally, on March 23, 2012, the Special Magistrate awarded the Town attorney’s fees and costs against the Trust.

The Trust appealed to the circuit court, which held that the Town was without authority to regulate and enforce mangrove trimming and removal. The circuit court applied the correct law to the facts of the case. We agree with the circuit court’s detailed legal analysis on this point and incorporate it in this opinion:

The parties have stipulated that one hundred and nine (109) mangrove trees were cut down and removed from the property. The parties further agree that the Town has not been delegated authority over mangrove trees pursuant to the Mangrove Trimming and Preservation Act. §§ 403.9321^03.9333, Fla. Stat. (2011) (“the Mangrove Act” or “the Act”). The primary issue raised on appeal is whether the Town, through the Special Magistrate, had jurisdiction to impose a fíne against the Trust for the removal of the 109 mangrove trees at issue.

The Trust asserts that the Town has no authority to regulate or enforce any ordinance related to mangroves as local regulation and enforcement is preempted by the Mangrove Act, §§ 403.9321-403.9333, Fla. Stat. (2011). The Trust contends that without the power to regulate or enforce the Mangrove Act, the Town has no ability to fíne the Trust for removing mangroves.

In pertinent part, the Mangrove Act provides as follows:

(1) Sections 403.9321-403.9333 and any lawful regulations adopted by a local government that receives a delegation of the department’s authority to administer and enforce the regulation of mangroves as provided by this section shall be the sole regulations in this state for the trimming and alteration of mangroves on privately or publicly owned lands. All other state and local regulation of mangrove is as provided in subsection (3).
(3) A local government that wants to establish a program for the regulation of mangroves may request delegation from the department at any time. However, all local government regulation of mangroves, except pursuant to a delegation as provided by this section, is abolished 180 days after this section takes effect.

§ 403.9234, Fla. Stat. (2011). It is clear that, absent a delegation of authority, all regulation of mangroves by local governments is preempted. The Town acknowledges that it has not been delegated authority to administer and enforce the Mangrove Act pursuant to Section 403.9234. Nevertheless, the Town maintains that assessing a fíne for removal of mangroves does not run afoul of the Mangrove Act’s preemption of local government regulation.

The fíne at issue here was assessed for violation of Section 26-99 of the Jupiter Town Code. Section 26-99 provides as follows:

Mangrove protection.
All trimming or removal of mangroves shall conform to the procedures and regulations established by the Florida Department of Environmental Protection (DEP) or the appropriate jurisdictional agency. Town staff shall have the authority to issue a stop work order if it appears that the DEP’s regulations are being violated.
Section 26-99 of the Jupiter Town Code. The Town asserts that Section 26-99 does not conflict with the Mangrove Act, rather it merely requires residents to comply with the regulations established by the Florida Department of Environmental Protection.
While Section 26-99 does not establish regulations relating to mangroves apart from requiring compliance with DEP regulations, the assessment of a fine is an act of regulation preempted by the Mangrove Act and the Special Magistrate lacked jurisdiction to assess the fíne. The plain language of the Mangrove Act abolishes “all local government regulation of mangroves.” The Act also makes clear that a delegation of authority is required to “administer and enforce the regulation of mangroves.” The Town failed to obtain a delegation of authority from the State and without such a delegation it has no ability to impose the fíne at issue here.
A finding of preemption is consistent with the opinion of the Fourth District Court of Appeal in Sun Harbor Home owners Ass’n, Inc. v. Broward County Dept. of Natural Res. Prot., 700 So.2d 178 (Fla. 4th DCA 1997). In Sun Harbor, Broward County attempted to fíne a homeowner’s association for topping mangrove trees. The court concluded that the county ordinance at issue had been preempted by the Mangrove Act. Although argued on a different point of law, the court held: “Broward County has no authority to impose a civil penalty on anyone by virtue of regulatory ordinances inconsistent with general law. Therefore, petitioner properly enjoys an immunity under the constitution to be free from attempted regulation under ordinances no longer consistent with general law.” Sun Harbor, 700 So.2d at 181.
To support the imposition of a fíne, the Town relies on J-II Investments, Inc. v. Leon County, 908 So.2d 1140 (Fla. 1st DCA 2005). J-II Investments was likewise relied upon by the Special Magistrate in denying the Trust’s jurisdictional challenge. The Town’s reliance on J-II Investments is misplaced.
J-II Investments involved preemption under the Florida Agricultural Lands and Practices Act. The Agricultural Act prohibited a county from “adopting] any ordinance, resolution, regulation, rule or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land.” Id. at 1141. The First District Court of Appeal concluded that a prohibition on adopting new ordinances did not prevent the county from enforcing an existing ordinance. The Mangrove Act, however, does more than prohibit the adoption of ordinances relating to mangroves. The Act abolishes all regulation of mangroves absent a delegation of authority. J-II Investments is simply inapposite. The Special Magistrate’s finding premised on the application of J-II Investments, Sun Harbor, and the Mangrove Act, is a departure from the essential requirements of the law and, as to this issue, the Violation Order of the Special Magistrate is reversed.
To be clear, this Court does not condone the Trust’s behavior. In flagrant disregard of State law, the Trust removed and destroyed protected trees and vegetation. The issue is who has jurisdiction to address, and remedy, this violation of State law. Jurisdiction here lies with the State of Florida through the Department of Environmental Protection, not with the Town.

In its petition to this court, the Town has largely abandoned the position it urged before the Special Magistrate and the circuit court. The Town contends that the circuit court should have (1) determined that there was a single violation of section 26-99, and not 109 violations, for the Trust’s failure to obtain a DEP permit before removing the mangroves and (2) reduced the fine to $15,000.

Before the magistrate, the Town advocated for the $1.635 million fine, arguing that the magistrate had authority to assess a $15,000 fine for each mangrove removed. Before the circuit court, the Town sought affirmance of the $1.635 million fine. A heading in the Town’s brief stated: “The magistrate applied the correct law finding 109 violations of § 26-99 of Chapter 26 of the Code.” After the circuit court reversed the $1.635 million fine, the Town suggested for the first time on rehearing that the court should recognize a single violation of 26-99 and assess $15,000 for one violation.

For the purpose of second-tier certiora-ri, the circuit court cannot be said to have departed from a clearly established principle of law when it failed to consider or apply a point not raised in the briefs. Moreover, we agree with the Trust that the Town’s assessment of any fine is regulation preempted by the Mangrove Act; a single $15,000 fíne is as improper as 109 $15,000 fines.

In sum, the Town has not shown that the circuit court departed from the essential requirements of law. The Mangrove Act expressly preempts local regulations of mangroves and enforcement unless the local government receives delegation from DEP. The Town did not receive such a delegation of authority. The Town cannot sidestep this statutory requirement by seeking fines under a local ordinance that requires compliance with state regulations. The circuit court properly determined that, absent a delegation of authority, DEP alone has jurisdiction to enforce the Mangrove Act.

Petition for writ of certiorari denied.

DAMOORGIAN, C.J., and TAYLOR, J., concur.

      . In a companion case, the Byrd Family Trust petitions for certiorari review of the court’s ruling pertaining to an award of attorney’s fees to the Town. We resolve that case by a separate order.


source: Caselaw Access Project

author: FORST, J.

license: Public Domain

text:
    MARINA DODGE, INC., and Webster Auto Brokers, Inc., Appellants, v. Kristina QUINN and Charles Joseph Barbera, Appellees.
    No. 4D13-10.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.

      Peter A. Miller & Associates, P.A., Coral Gables; Robert S. Glazier of Law Office of Robert S. Glazier, Miami; James W. Sherman and Richard H. Sherman, Sr. of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale; for appellants.
    Robert M. Roselli of Roselli & Associates, P.A., Fort Lauderdale; Todd Tracy of The Tracy Firm, Dallas, Texas; and Erin E. Pogue of Wasson & Associates, Chartered, Miami; for appellee Kristina Quinn.
   FORST, J.

New York auto dealers Marina Dodge, Inc. and Webster Auto Brokers, Inc. (“the Auto Dealers”) appeal the denial of their respective motions to dismiss the personal injury suit filed against them in Broward County. The Auto Dealers maintain that the trial court erred in rejecting their argument that personal jurisdiction could not be exercised against them in Florida. We agree and therefore reverse the trial court’s order.

The Complaint

In 2003, Plaintiff-Appellee Kristina Quinn (Appellee) purchased a vehicle from the Auto Dealers, both New York corporations. The transaction took place in New York. At the time of the purchase, Appel-lee was a resident of New York and, in fact, subsequently was employed by one of the auto dealers in New York. She later moved to Florida and, in 2007, was involved in an automobile accident with another Florida resident, Defendant Charles Barbera, while driving that vehicle in Bro-ward County. Appellee sustained serious injuries as a result of the collision.

Appellee filed the operative complaint in Broward County, Florida, with claims against the Auto Dealers, alleging that they sold her a defective vehicle and it was a cause of the accident. The Auto Dealers moved to dismiss the complaint for lack of personal jurisdiction, attaching an affidavit by the Auto Dealers’ president denying any contacts with Florida. The parties then engaged in lengthy and prolonged discovery surrounding the issue of whether the Auto Dealers had sufficient contacts with Florida.

The Auto Dealers’ Activities in, and Contacts with, Florida

In support of her opposition to the Auto Dealers’ motions to dismiss, Appellee submitted four affidavits regarding contacts Marina Dodge had with Florida. None of these affidavits addressed contacts between Webster Auto Brokers and Florida. In response, the Auto Dealers filed a new affidavit from their president, admitting to several “contacts” with Florida on the part of Marina Dodge. The following contacts/activities were identified:

• Marina Dodge was registered with ADESA Sarasota, a Florida corporation which auctions automobiles; however, the Auto Dealers’ owner stated that Marina Dodge did not purchase vehicles from, nor sell vehicles to, ADESA.
• Marina Dodge purchased nine vehicles over the internet from Manheim Orlando, a Florida corporation, between 2006 and 2009; the vehicles were transported from Florida to New York by a North Carolina auto transport company.
• Appellee contends that an additional ten vehicles were purchased by Marina Dodge from Manheim Central Florida between 2006 and 2010; the Auto Dealers’ president responded that these vehicles were not purchased by Marina Dodge, but by a separate entity.
• Marina Dodge had five transactions between 2004 and 2011 with customers that owned extended service warranties purchased from either Fidelity Warranty Services or Century Warranty Services, both Florida companies; the service on the automobiles was performed in New York.
• Marina Dodge entered into an agreement with Auction Direct, a Delaware corporation, to assist Auction Direct in obtaining financing for Auction Direct vehicle purchasers, and some of the financing involved vehicles sold by Auction Direct in Florida; Marina Dodge received three checks, totaling $7,500, from Auction Direct’s subsidiary in Jacksonville, Florida, for Marina Dodge’s efforts with sales in Florida.

After a hearing on the Auto Dealers’ motions to dismiss, the trial court concluded, “I do believe based on the affidavits that were presented to me, it showed that there was indeed continuous contact that took place over years with various entities sufficient to permit jurisdiction to lie in the State of Florida ... as to both [the Auto Dealers].” In responding to an inquiry as to whether this denial would apply to both of the defendants’ motions, the trial court responded, ‘Tes, as to both because of the representations — Webster is using the same dealer number.” The trial court then entered an order denying both motions to dismiss.

We review a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction de novo. Russo v. Fink, 87 So.3d 815, 817 (Fla. 4th DCA 2012).

Analytical Process for Determining Personal Jurisdiction

In Venetian Salami Co. v. Parthenais, 554 So.2d 499, 501-02 (Fla.1989), the Florida Supreme Court approved of a two-step analytical process for determining personal jurisdiction. The first step requires the trial court to determine whether sufficient facts have been alleged to bring the action within the ambit of Florida’s long-arm statute. Id. at 502 (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987), review denied, 520 So.2d 586 (Fla.1988)); Caiazzo v. Am. Royal Arts Corp., 78 So.3d 245, 249-50 (Fla. 4th DCA 2011). If the long-arm statute applies, the second step requires the trial court to decide whether “minimum contacts” exist between the defendant and the forum state to satisfy due process. Venetian Salami Co., 554 So.2d at 502; Caiazzo, 73 So.3d at 250. The due process analysis is “a more restrictive requirement” than the “broad grant of jurisdiction” under the long-arm statute and is governed by precedent from the Supreme Court of the United States interpreting the Due Process Clause of the United States Constitution. Caiazzo, 73 So.3d at 250-51 (citations omitted).

Personal jurisdiction can exist in two forms: “specific,” in which the alleged activities or actions of the defendant are directly connected to the forum state, and “general,” in which the defendant’s connection with the forum state is so substantial that no specific or enumerated relationship between the alleged wrongful actions and the state is necessary.

Id,, at 250.

A. Specific Jurisdiction

In analyzing the issue of “specific” jurisdiction, a court must first determine whether one of the acts set out in section 48.193(1) of the Florida long-arm statute is applicable to the case at hand. In the instant, case, Appellee has identified two such acts: “[cjomitting a tortious act within this state,” and “[cjausing injury to persons or property within this state arising out of an act or omission by the defendant outside this state ....”§ 48.193(l)(a)2., 6., Fla. Stat. (2012).

In the event that this first prong of examining specific jurisdiction is met, a court must then address the due process prong. This court has comprehensively discussed this standard:

The United States Supreme Court, in a handful of leading cases, laid out the proper due process standard for cases involving specific jurisdiction. First, in the interest of preserving “traditional notions of fair play and substantial justice” a state may exercise specific jurisdiction only over a defendant who has certain “minimum contacts” with the state. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This so-called “minimum contacts” rule is the “constitutional touchstone” for such jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The Court later clarified that the notion of minimum contacts encompasses only situations in which the defendant has “purposefully avail[ed] [himself or herself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); see also Burger King, 471 U.S. at 474-75, 105 S.Ct. 2174; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Finally, the Court has stated that simply being able to foresee a product’s arrival in the forum state will never by itself establish minimum contacts over the seller of that product. World-Wide Volkswagen [v. Woodson ], 444 U.S. [286] at 297, 100 S.Ct. 580[, 62 L.Ed.2d 490 (1980) ]. Instead, foreseeability is relevant only when “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. This is because an entity that purposefully avails itself of the privilege of conducting activities within the forum state “has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with thé State.” Id.

Caiazzo, 73 So.3d at 251; see also Metnick & Levy, P.A. v. Seuling, 123 So.3d 639, 644 (Fla. 4th DCA 2013); Corporacion Aero Angeles, S.A. v. Fernandez, 69 So.3d 295, 299 (Fla. 4th DCA 2011).

B. General Jurisdiction

General jurisdiction under the Florida long-arm statute applies to “[a] defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” § 48.193(2), Fla. Stat. (2012). As noted in Caiazzo, the term “substantial and not isolated” has been construed by Florida courts as meaning “continuous and systematic general business contact” with Florida. Caiazzo, 73 So.3d at 250. A similar standard applies in determining whether the due process requirement for finding general jurisdiction has been met. See, e.g., id. at 252 (“Because substantial, continuous, and systematic business contacts is the standard for both subsection (2) of Florida’s long-arm statute and the due process requirement for general jurisdiction, a finding of substantial, continuous, and systematic business contacts will satisfy both the long-arm statute and the due process requirements of [Helicopteros Na-cionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ].”). Therefore, if the plaintiff fails to meet the due process test of specific jurisdiction, the test for general jurisdiction will rarely, if ever, be met.

Personal jurisdiction over these out-of-state Auto Dealers does not lie in Florida

Although Florida’s long-arm statute allows for a broad grant of jurisdiction over nonresident defendants (at least specific jurisdiction), personal jurisdiction over the Auto Dealers in Florida substantially fails under the due process requirement of personal jurisdiction. With Webster Auto Brokers, the only contact alleged in all of the parties’ filings and affidavits is that Webster Auto Brokers may have sold the vehicle to Appellee in New York and then the vehicle became involved in an automobile accident years later in Florida. This contact alone has been held to be insufficient to support an exercise of personal jurisdiction over a nonresident defendant. See World-Wide Volkswagen, 444 U.S. at 297. Furthermore, Plaintiff has failed to show that Webster Auto Brokers has purposefully availed itself of the privileges of Florida or has engaged in systematic and continuous contacts evidencing a general business relationship with Florida to satisfy due process. Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868; Hansen, 357 U.S. at 253, 78 S.Ct. 1228. Finally, to the extent that it is argued that jurisdiction lies over Webster Auto Brokers because it is an alter ego of Marina Dodge, the rationale below for finding a lack of jurisdiction over Marina Dodge would be applicable to Webster Auto Brokers.

A. Minimum contacts have not been established to support specific jurisdiction

With respect to specific jurisdiction, the affidavits before the trial court reveal very few contacts between Marina Dodge and the State of Florida. These contacts evince only that, during the operative period of time, Marina Dodge engaged in a handful of isolated transactions with various Florida companies, the majority of which action occurred over the internet or in the State of New York, without having targeted Florida for business as an automobile seller or repair shop or otherwise.

Marina Dodge purchased as many as 19 vehicles from one or two dealers in Orlando, Florida, over a three-year span; however, the Auto Dealers contend that Marina Dodge sold 3,678 vehicles during this time period, all such deals taking place in New York. Nineteen vehicles out of 3,678 is not “minimum contacts” — it is a pittance. It has not been established, nor even alleged, that the purchases from Manheim were part of a program whereby the Auto Dealers contracted with Manheim on a regular and/or frequent basis. The Auto Dealers maintain that the automobile at issue in this case was not one of the cars purchased from Florida, and Appellee has not stated otherwise. The Auto Dealers do not have an office, property, employees, or agents in Florida, nor do they sell vehicles to Florida dealers or customers unless such transactions occur in New York. Thus, although it is likely that an occasional customer of the Auto Dealers was a Florida resident visiting upstate New York, or a New York resident who wintered in Florida, there is no evidence that the Auto Dealers specifically marketed its vehicles to Floridians or that they otherwise solicited business in Florida, or that any vehicles purchased from the Auto Dealers were transported by them to Florida or serviced by them in Florida.

The Auto Dealers did perform service, in New York, on five vehicles pursuant to extended warranty agreements purchased from two Florida companies, but otherwise did not engage in contracting with Florida companies with respect to warranty and extended service contracts, nor did they solicit such work. Similarly, the Auto Dealers’ receipt of $7,500 in payments from a Florida subsidiary of a Delaware company was an attenuated contact with Florida, with the financing agreément being between the Auto Dealers and the Delaware parent company.

Finally, although Marina Dodge was registered with ADESA Sarasota, a Florida corporation, there is no evidence that the Auto Dealers ever purchased vehicles from ADESA or sold vehicles to this company. See Burger King, 471 U.S. at 478, 105 S.Ct. 2174 (holding that a contract alone cannot “automatically establish sufficient minimum contacts” for the purpose of finding specific jurisdiction).

The cases cited by Appellee as support for finding personal jurisdiction are easily distinguishable from the case at hand. In Garris v. Thomasville-Thomas County Humane Society, Inc., 941 So.2d 540, 547-48 (Fla. 1st DCA 2006), the court found general jurisdiction existed, noting the defendant directed significant advertisement towards residents of Florida, “targeting the populous Florida ‘market,’” solicited donations from Floridians, and had ongoing relationship with several Florida animal aid organizations, including arrangements under which it “systematically and continuously” transferred animals to them for adoption in Florida. In Northwestern Aircraft Capital Corp. v. Stewart, 842 So.2d 190, 195 (Fla. 5th DCA 2003), the defendants, a charter flight company, advertised and solicited business in Florida through print advertising and the internet and “the defendants [had], and continue[d] to conduct and derive revenue from, on-demand charter operations into and out of Florida carrying Florida residents into and out of the state.” In Meier ex rel. Meier v. Sun International Hotels, Ltd., 288 F.3d 1264, 1274 (11th Cir.2002), the defendants maintained several bank accounts in Florida, paid for advertising in Florida, maintained and staffed Florida telephone numbers, and listed a Florida attorney as its “Authorized Representative in the United States” and its “Agent for Service.” In Woods v. Nova Companies Belize Ltd., 739 So.2d 617, 620-21 (Fla. 4th DCA 1999), this court found general jurisdiction due to defendant “selling approximately eighteen percent of its product to Florida importers, moving nearly all of its product through the state, purchasing equipment and supplies from Florida suppliers, utilizing storage facilities in Florida, and establishing essential business relationships in this state, all within its ongoing commercial relationship with Florida .... ”

These four cases involved far more than “minimum contacts” and, in fact, the courts found general jurisdiction through continuous systematic contacts with the state. By contrast, the Auto Dealers’ contacts with Florida were random, attenuated, and “minimal” or “de minimus,” not “minimum.” Moreover, it was not foreseeable that the automobile sold in New York by New York auto dealers to a New York resident would be involved in an accident, four years later, in Florida. Compare AVH Daily Rental Cars, Inc. v. Smith, 640 So.2d 168 (Fla. 1st DCA 1994) (holding an out-of-state car rental agency lacked sufficient minimum contacts to be required to appear in court in Florida where Florida residents were involved in an accident in New Jersey while driving a vehicle rented in Delaware that was to be returned to Delaware at the end of the rental period), with Sierra v. A Betterway Rent-A-Car, Inc., 863 So.2d 358, 360 (Fla. 3d DCA 2003) (finding it foreseeable that the defendant’s vehicles could be involved in accidents in Florida where defendant was aware that its rental car was going to Florida and defendant was “part of a global system of rental agencies”).

The minimum contacts test “is not formulaic or talismanic.” Radcliffe v. Gyves, 902 So.2d 968, 972 (Fla. 4th DCA 2005), disapproved of on other grounds by Kitroser v. Hurt, 85 So.3d 1084 (Fla.2012). The Auto Dealers sold vehicles in New York only, with none sold in Florida. They serviced vehicles in New York, not in Florida. They have no offices in Florida, are not licensed to do business in Florida, employ no business agents in Florida, and maintain no mailing address or telephone listing in Florida. Their contacts with Florida entities were random, isolated and “tenuous.” See Oy v. Carnival Cruise Lines, Inc., 632 So.2d 724, 726 (Fla. 3d DCA 1994). We cannot conclude that the Auto Dealers “purposefully directed” its activities at consumers or businesses in Florida, see Keeton v. Hustler Magazine Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), nor can we find that the personal injury litigation “results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King, 471 U.S. at 472, 105 S.Ct. 2174 (quoting Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868). Accordingly, we find the trial court lacked specific jurisdiction over Marina Dodge and, hence, over Webster Auto Brokers as well.

B. No continuous and systematic business contacts support general jurisdiction

Having found a lack of minimum contacts, it naturally follows that we find a dearth of continuous and systematic general business contacts between the Auto Dealers and Florida to give rise to general personal jurisdiction. Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868; Hanson, 357 U.S. at 253, 78 S.Ct. 1228. “The continuous and systematic general business contacts sufficient to confer general jurisdiction present a much higher threshold than those contacts necessary to support specific jurisdiction under section 48.193(1).” Trs. of Columbia Univ. v. Ocean World, S.A., 12 So.3d 788, 792 (Fla. 4th DCA 2009) (emphasis added) (citation and internal quotation marks omitted).

In the instant case, the Auto Dealers did not have “continuing relationships and obligations with citizens” of Florida. Travelers Health Ass’n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 94 L.Ed. 1154 (1950). The Auto Dealers purchased between nine and nineteen cars from a Florida auto auction over the space of three years, during which time over 3,000 cars were purchased by the Auto Dealers, and these purchases had no relationship to the Auto Dealers’ servicing five cars pursuant to extended warranties or the other “contacts” alleged by Appellee. Rather than continuous, substantial, and systematic, the level of activity between the Auto Dealers and Florida is more properly characterized as isolated, de minimus, and haphazard. The trial court clearly lacked general jurisdiction over the Auto Dealers.

Conclusion

The trial court erred in denying the Auto Dealers’ motions to dismiss for lack of jurisdiction. It is improper for Florida to exercise personal jurisdiction over either of the Auto Dealers in this action. Thus, we reverse the order of denial as to both motions to dismiss and direct the trial court to dismiss the action as against Marina Dodge and Webster Auto Brokers as defendants.

Reversed and Remanded.

WARNER and CONNER, JJ„ concur.

      . The Auto Dealers’ president's affidavit maintained that none of these contacts applied to Webster Auto Brokers.

      . Section 48.193, Fla. Stat. (2012).


author: GERBER, J. WARNER, J.,

text:
    Colette O. deLABRY, Appellant, v. David J. SALES, Appellee.
    No. 4D12-3143.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.

      Martin L. Haines, III of Martin L. Haines, III, Chartered, Lake Park, for appellant.
    John S. Mills of The Mills Firm, P.A., Tallahassee, for appellee.
   GERBER, J.

The former wife appeals from the circuit court’s final order granting the former husband’s petition for modification of his child support obligation. The former wife primarily argues that the circuit court erred in finding that the former husband’s child support obligation was modifiable and that his decrease in income was a substantial change of circumstances warranting a reduction. We agree with the court’s findings. Thus, we affirm.

This opinion will break down this case into its six significant stages: (1) the parties’ marital settlement agreement (“MSA”); (2) the parties’ pleadings in the circuit court; (3) the court’s hearing; (4) the court’s final order; (5) the parties’ arguments on appeal; and (6) our reasoning for affirmance.

The Parties’ MSA

The MSA’s child support section stated, in pertinent part, that the former husband was to pay the former wife a stated amount per month in child support until such time as the parties’ eldest child reached majority age or was otherwise no longer eligible for support. Upon the termination of the former husband’s child support obligation for the eldest child, the former husband’s child support obligations for the remaining children would be “recalculated in accordance with the then existing child support guidelines and the Parties[’] then current available incomes, respectively.” This procedure would repeat itself as each child reached majority age or was otherwise no longer eligible for support.

The MSA’s child support section then stated, in pertinent part:

In determining the amount of periodic child support, the Parties have taken into consideration the statutory child support guidelines, the income and “good fortune” of the Husband, the income of the Wife, the current needs of the Children, the rotating custody arrangement and all of the other financial provisions of this Agreement, particularly, the equitable distribution and lump sum alimony provisions, and the impact thereof. Accordingly, the Parties agree that the amount of periodic child support set forth herein is more than reasonable and sufficient. Given that the Parties will have physical custody of the Children on a rotating, equally shared basis, the amount of child support required by this Agreement substantially exceeds the amounts the Court would or could award pursuant to the Child Support Guidelines, particularly since ... the Husband is undertaking to pay all of the costs associated with the Children’s private school tuition through grade eight, medical insurance, uninsured medical expenses and saving for college tuition. At this time, the Husband’s average gross income over the last several years has exceeded [amount], while the Wife has had virtually no income from employment for the last several years. The Parties submit that this is further evidence of the reasonableness of the amounts for child support required by this Agreement.

Also of significance in the MSA is its property settlement and alimony sections. Those sections provided that, in settlement of all claims between the parties: the former husband would pay an identified lump sum payment to the former wife; the former wife would not be permitted to seek spousal support from the former husband; and the former husband released any claims of entitlement to the former wife’s future compensation.

Of final significance in the MSA is that, in both its alimony and child custody sections, the parties expressly agreed that they could not seek to modify those sections “no matter how the circumstances of either party change.” However, the MSA’s child support section contained no such agreement.

The Parties’ Pleadings in the Circuit Court

The former husband’s petition for modification of child support, filed nearly four years after the final judgment incorporating the MSA, alleged that a substantial change in circumstances had occurred, warranting modification. See § 61.13(l)(a)2., Fla. Stat. (2012) (“The court initially entering an order requiring one or both parents to make child support payments has continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments .... if there is a substantial change in the circumstances of the parties ....”) (emphasis added). Specifically, the former husband alleged, in pertinent part:

3.Since entry of the final judgment, there has been a substantial change in circumstances requiring a modification in child support.... [A]t the time the Court entered final judgment, [the former wife] was a stay-at-home parent, who was not working outside the home. [The former wife] has returned to the full-time practice of law.
4. [The former husband] ask[s] the court to modify child support as follows: to be consistent with the child support guidelines, parties’ current earnings and earning ability, rotating custody arrangement, and [the former husband’s] other obligations under the parties’ marital settlement agreement.
5. The change requested ... is in the best interest of the children because it will require both parties to contribute to their children’s maintenance and care in accordance with their respective abilities.

The former wife’s response raised three arguments: (1) within the MSA, the parties understood she would return to work and earn income to become financially independent, and therefore, her current employment was not an unanticipated change of circumstances; (2) although the former husband released his right to claim an entitlement to her future compensation, his petition essentially claimed an entitlement to her future compensation; and (3) the conditions stated in the MSA as to when the former husband’s child support obligations would be recalculated had not yet occurred.

The former husband’s reply raised four arguments: (1) a substantial change in circumstances occurred because the former wife had become employed as a lawyer on a full-time basis, earning a substantial six-figure salary, while his income, by comparison, had declined nearly fifty percent since the time of the parties’ dissolution; (2) at the time of the parties’ dissolution, his obligations were calculated on the basis of his average gross income in the preceding years, while the former wife had virtually no income in the preceding years; (3) if the parties intended for the MSA’s child support provisions to be nonmodifiable, then they would have said so as they did with the MSA’s alimony and child custody provisions; and (4) the MSA provision in which he released any claims of entitlement to the former wife’s future compensation was in exchange for his property settlement with the former wife, and was not a waiver of his statutory right to modification of child support.

The Court’s Hearing

At the court’s hearing, the former husband argued that the MSA’s child support provision was modifiable both as a matter of law and under the MSA’s unambiguous language. As to being modifiable as a matter of law, the former husband relied on Guadine v. Guadine, 474 So.2d 1245 (Fla. 4th DCA 1985), for the proposition: “Nor can any contract divest the courts of their authority to modify child support, for inherent in a court’s authority is the authority to modify child support — regardless of any agreement between the parties.” Id. at 1245 (internal brackets, quotations, and citations omitted). As to the MSA’s language, the former husband argued that because the MSA’s child custody and alimony sections provided those items were non-modifiable, the exclusion of such a provision in the child support section indicated that child support was modifiable.

In response, the former wife argued she was not claiming that the MSA’s child support provision was non-modifiable. Rather, she argued that, in the MSA, the parties agreed child support was modifiable only when a child reached majority age or was otherwise no longer eligible for support.

After the parties concluded their arguments, the trial court announced its finding that the MSA’s child support provision was modifiable. In support of its finding, the court articulated two reasons: (1) the MSA’s specific reference to spousal support and property rights being non-modifiable, without mentioning child support being non-modifiable, indicated the parties did not intend to make child support non-modifiable; and (2) the MSA’s requirement that child support terminate when a child reached majority age or was otherwise no longer eligible for support was required as a matter of law, and did not indicate those were the only conditions by which child support could be modified.

The Court’s Final Order

The court later issued a final order granting the former husband’s petition. The order contained findings of fact regarding the former husband’s and the former wife’s financial status. As to the former husband, the court found that he had no income from his new law practice and was living off his investments. However, the former husband’s decision to leave his former law firm was voluntary and the court would use his last annual income from that firm as his current income for child support purposes. As to the former wife, the court found that she was earning an annual income of approximately two-thirds of the amount of the former husband’s annual income.

The order then contained four conclusions of law. First, the court memorialized its hearing announcement that the former husband’s child support obligation in the MSA was modifiable.

Second, the court concluded the former husband did not meet his burden of proving that the former wife’s employment as an attorney and her resulting earnings were a substantial change of circumstances. In reaching that conclusion, the court relied upon the MSA’s provision that as child support for a child terminated, the former husband’s child support obligation for the remaining children would be recalculated in accordance with the child support guidelines and the “[p]arties’ then current available incomes, respectively.”

Third, the court concluded that the former husband met his burden of proving that his nearly fifty percent decrease in annual income was a substantial change of circumstances.

Fourth, the court concluded that the former husband’s child support obligations should be determined by applying the former husband’s and the former wife’s gross annual incomes to the child support guidelines. Pursuant to section 61.30(l)(a), Florida Statutes (2012), the court then considered all relevant factors, including the former husband’s income and the difference between the former husband’s original child support obligation and the presumptive guideline amount, and increased the presumptive guideline amount by five percent. See § 61.80(l)(a), Fla. Stat. (2012) (“The trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including ... the financial status and ability of each parent.”).

The court made this new monthly child support obligation retroactive to the date the former husband filed his petition for modification. The court also calculated the amounts of the former husband’s monthly child support obligations as the parties’ four children each reached the age of majority, unless the children otherwise remained eligible for support beyond the age of majority.

The court also ordered the parties to bear their own attorney’s fees and costs.

The Parties’ Arguments on Appeal

The former wife argues on appeal that the court erred in finding: (1) the former husband’s child support obligation was modifiable; (2) the former husband’s decrease in income was a substantial change of circumstances warranting a reduction of his child support obligation; (3) the former husband’s child support obligation should be reduced retroactively; and (4) the former wife was not entitled to recover her attorney’s fees and costs pursuant to the MSA and Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

In response, the former husband raises three arguments: (1) the court’s finding that the former husband’s child support obligation was modifiable was correct as a matter of law; (2) the court’s decision to reduce the former husband’s child support obligation was supported by the competent, substantial evidence of his income reduction; and (3) if the court’s modification order is affirmed, then the former wife should not be entitled to recover her attorney’s fees and costs.

Our Reasoning for Affirmance

We will address our reasoning for affir-mance in the order of the former wife’s four arguments on appeal.

1. The former husband’s child support obligation under the MSA was modifiable as a matter of law.

Normally, “[t]he standard of review governing a trial court’s decision to modify child support is abuse of discretion.” Escobar v. Escobar, 76 So.3d 958, 960 (Fla. 4th DCA 2011) (citation omitted). However, the issue of whether the former husband’s child support obligation was modifiable under the MSA is an issue of law. See Sirkin v. Sirkin, 204 So.2d 13,14 (Fla. 3d DCA 1967) (“The sole issue of law involved in this appeal is whether or not a chancellor has the right to modify the provisions of a final decree of divorce regarding support money ... for minor children where the decree is based upon an approved stipulation between the parties.”) (emphasis added). As an issue of law, our standard of review on the issue of child support modifiability is de novo. Cf Mathers v. Brown, 21 So.3d 834, 837 (Fla. 4th DCA 2009) (“While the standard for reviewing a trial court’s equitable distribution is generally abuse of discretion, the trial court’s determination is reviewed de novo when the issue on appeal, as here, concerns a pure issue of law.”) (citations omitted).

This issue here is resolved by our decision in Guadine v. Guadine, 474 So.2d 1245 (Fla. 4th DCA 1985). In Guadine, we held that “[a contract cannot] divest the courts of their authority to modify child support, for inherent in a court’s authority is the authority to modify child support— regardless of any agreement between the parties.” Id. at 1245 (internal brackets, quotations, and citations omitted). See also § 61.13(l)(a)2., Fla. Stat. (2012) (“The court initially entering an order requiring one or both parents to make child support payments has continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments .... if there is a substantial change in the circumstances of the parties ....”) (emphasis added).

Thus, regardless of the fact that the MSA described when the former husband’s child support obligation would be modifiable — when a child reached the age of majority or was otherwise no longer eligible for support — the court still had the inherent authority to modify that obligation if the former husband could prove that a substantial change in circumstances occurred.

2. The circuit couH did not abuse its discretion in finding that the fanner ■ husband’s decrease in income was a substantial change of circumstances warranting a reduction of his child support obligation.

“The party moving for a modification of child support has the burden of proving all of the following factors, or rather, three fundamental prerequisites: First, there must be a substantial change in circumstances. Second, the change was not contemplated at the time of final judgment of dissolution. Third, the change is sufficient, material, involuntary, and permanent in nature.” Maher v. Maher, 96 So.3d 1022, 1022 (Fla. 4th DCA 2012) (citations, quotations, and emphasis omitted). Moreover, “[w]hen the original child support amount is based on an agreement by the parties, ... there is a heavier burden on the party seeking a downward modification.” Id. (citations omitted).

Here, the former husband met his burden of proving all three prerequisites, even under the heavier burden required because of the MSA’s existence. First, there was a substantial change in circumstances, that is, a nearly fifty percent reduction in the husband’s income from the time of the MSA to the time of his petition. Second, the change was not contemplated at the time of the final judgment of dissolution, as evidenced by the MSA’s use of the former husband’s average income as the basis for “the reasonableness of the amounts for child support required by this Agreement.” Third, the change was “sufficient, material, involuntary, and permanent in nature.” The former husband’s nearly fifty percent reduction in annual income arose involuntarily from his previous law firm. Moreover, this reduction was material because, again, the MSA used his average income as the basis for “the reasonableness of the amounts for child support required by this Agreement.”

3. The circuit couH did not abuse its discretion in reducing the former husband’s child suppoH obligation retroactively.

“Retroactivity is the rule rather than the exception which guides the trial court’s application of discretion when modification of alimony or child support is granted.” Walters v. Walters, 96 So.3d 972, 976 (Fla. 4th DCA 2012) (citation and quotations omitted).

Despite the general rule, the former wife argues that the former husband’s child support obligation should not be applied retroactively based on the following quote from Livingston v. Livingston, 686 So.2d 664, 665 (Fla. 1st DCA 1996): “While an increase in child support may be made retroactive at the discretion of the lower court, absent extraordinary or compelling circumstances, a reduction in child support may not be made retroactive.” (internal citations omitted).

However, as the former husband correctly notes, our sister court since has explained its statement in Livingston was describing the circumstances for making child support reductions retroactive to the date circumstances changed, as opposed to the date of the petition. See Miles v. Champlin, 805 So.2d 1085, 1086 (Fla. 1st DCA 2002) (“We believe a better reading of the cited authorities limits them to precluding (in the ordinary case) diminution of child support retroactively to a date before any petition for reduction had been filed”). Thus, the circuit court did not abuse its discretion in reducing the former husband’s child support obligation retroactively to the date of his petition for modification.

4. The circuit court did not abuse its discretion in failing to award the unfe’s attorney’s fees and costs pursuant to the MSA and Rosen.

The former wife is not entitled to recover her attorney’s fees and costs pursuant to the MSA because she was not the prevailing party. The MSA provides that, in any action to enforce the MSA’s terms, the prevailing party would be entitled to recover his or her reasonable attorney’s fees and costs.

The former wife also is not entitled to recover her attorney’s fees and costs pursuant to Rosen because she alleged insufficient grounds for such an award. The former wife merely alleged that the former husband’s petition was “frivolous” and therefore she “should be awarded the reasonable attorney’s fees and costs she incurred defending the Former Husband’s inappropriate, untimely and unsupportable action to modify child support under the authority of Rosen ....” We have concluded that the former husband’s action was not frivolous. Further, because the former wife has relied on this argument as her sole basis for an award under Rosen, we shall not sua sponte consider other factors for an award under Rosen. See generally Rosen, 696 So.2d at 699-701.

Conclusion

Based on the foregoing, we affirm the circuit court’s final order granting the former husband’s petition for reduction of his child support obligation. We have considered the wife’s other arguments on appeal, and conclude those arguments lack merit without further discussion.

Affirmed.

CIKLIN, J., concurs.

WARNER, J., dissents with an opinion.

WARNER, J.,

dissenting.

While I agree with the majority that the child support may be subject to modification, I conclude that the trial court abused its discretion in modifying the child support obligation of the marital settlement agreement on the facts in this record.

As noted in the majority, a party moving for modification has the burden to prove a substantial change in circumstance, not contemplated at the time of the final judgment of dissolution, which is sufficient, material, and permanent in nature. Maher v. Maher, 96 So.3d 1022, 1022 (Fla. 4th DCA 2012). Where the original amount is based upon an agreement between the parties, the burden is heavier. Id.

“[A] substantial decrease in a parent’s earnings does not in all circumstances require a reduction in support payments.” Abdella v. Abdella, 693 So.2d 637, 639 (Fla. 3d DCA 1997) (citing Cimitier v. Cimitier, 579 So.2d 142, 144 (Fla. 3d DCA 1991)). “The trial court must look at all the assets available to the parent to determine the parent’s ability to pay.” Id. See also Beal v. Beal, 714 So.2d 568, 569 (Fla. 1st DCA 1998) (affirming denial of former husband’s petition to reduce his child support premised on reduced income because “the trial court correctly found that [the husband] continued to have sufficient assets and actual income to pay the amount of the child support previously ordered”).

While we usually give deference to the trial court’s findings of fact, in this case the trial court merely reviewed the transcript of testimony taken before a magistrate and made an independent determination on the issues. This is contrary to the usual review of magistrate findings, where the trial court reviews the findings of fact to determine whether competent substantial evidence supports those findings. See In re Drummond, 69 So.3d 1054, 1056 (Fla. 2d DCA 2011). Although the former wife did not object to this procedure, the trial court’s findings of fact are nevertheless entitled to less deference, because they were not based upon live testimony. See InPhyNet Contracting Servs., Inc. v. Soria, 33 So.3d 766, 770 (Fla. 4th DCA 2010).

The trial court’s only finding in support of a modification was that the former husband’s income had decreased substantially based upon the difference between the income it imputed to him and the income the parties stipulated to in the marital settlement agreement. His current imputed income amounts to approximately 60% of his prior income. Yet even half of this income amounted to a multiple six figure income, of which the child support amount would still constitute about 20%. Moreover, the trial court disregarded the former husband’s very substantial investments which could also generate income to pay the agreed child support. In short, the former husband had ample and sufficient assets to pay the child support even though his income had decreased.

Neither the trial court nor the majority addresses the permanency of this income loss. The former husband is an attorney who suffered some income loss as a result of a shift in his career path. There is nothing in the record to document that this is a permanent loss of income, and it does not appear to be so. In fact, quite the opposite appears to be true. The former husband testified that he expects to be making more money than he ever did at his former firm once some of his appellate cases come to fruition, and he discussed some of those cases.

The amount of child support was carefully negotiated in the marital settlement agreement. The former wife testified that she gave up valuable property rights at the time of the dissolution, and the former husband agreed that they compromised her claims to some of his bonuses through the total financial settlement. The former husband did not testify that he did not have the financial ability to make the support payments. His financial affidavit shows a surplus each month.

On this record, the husband has not carried his heavy burden to modify the agreed child support payment, and the trial court abused its discretion in ordering the reduction of the payment. I would reverse on this issue.


author: TAYLOR, J.

text:
    CITY OF FORT LAUDERDALE, Appellant, v. Rhadames GONZALEZ, Appellee.
    Nos. 4D12-1932, 4D12-1933.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.

      Harry A. Stewart and Bradley H. Weissman, Fort Lauderdale, for Appellant.
    Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for appellee.
   TAYLOR, J.

The City of Fort Lauderdale appeals a county court order dismissing a traffic citation and declaring the owner notification provision of Florida’s red light camera law to be unconstitutional. We reverse and hold that section 316.0083(l)(e)l.c., Florida Statutes (2011), does not violate equal protection or due process by providing that, in the case of a jointly owned vehicle, the traffic citation shall be mailed only to the person whose name appears first on the registration.

On August 19, 2011, an automated traffic camera photographed a vehicle, which was jointly owned by Rhadames and Nuris Gonzalez, running a red light. Shortly thereafter, the City of Fort Lauderdale sent a Notice of Violation to the shared address listed for both Rhadames and Nuris Gonzalez. The Notice was addressed only to Rhadames Gonzalez, the first listed owner on the vehicle’s registration. The Notice included images of the vehicle committing the violation, stated that a statutory penalty of $158 was due within 30 days, and explained procedures for either making payment or contesting the violation.

Because Mr. Gonzalez did not pay the fine set forth in the Notice of Violation within 30 days, a Florida Uniform Traffic Citation was issued to him as the first registered owner of the vehicle. See § 316.0083(l)(c)l.a., c., Fla. Stat. (2011). The Uniform Traffic Citation demanded that he either 1) pay a $263 fine, 2) plead not guilty and request a hearing, or 3) “establish by a notarized affidavit that a statutory exemption applies.”

Mr. Gonzalez responded by filing a motion to dismiss the citation in county court in Broward County. He argued that the owner notification provision of Florida’s red light camera law violated equal protection and due process because, among other things, the law provided for the citation to be mailed only to the registered owner who is listed first on the vehicle registration.

The trial court ultimately found that the owner notification provision was unconstitutional on due process and equal protection grounds. The trial court concluded that there was no rational basis for treating the first registered owner differently than a subsequent registered owner. In rejecting the argument that simplicity of administration was sufficient to justify the law, the trial court found that the statute “provides for the random prosecution of but one owner although others are not only similarly but identically situated except for their placement on the vehicle registration.” The trial court stated that “for no other reason but for simplicity, one owner is prosecuted and the other or others granted in effect immunity or ipso facto pardoned even though similarly situated.” The trial court’s order thus granted Mr. Gonzalez’s motion to dismiss the citation. This appeal ensued.

Standard of Review

The determination of a statute’s constitutionality is a question of law subject to de novo review. See, e.g., Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005).

Constitutional Principles

Although the standard of review is de novo, “statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome.” Crist v. Fla. Ass’n of Criminal Def. Lawyers, Inc., 978 So.2d 134, 139 (Fla.2008). Courts should resolve every reasonable doubt in favor of the constitutionality of a legislative act. Bunnell v. State, 453 So.2d 808, 809 (Fla.1984).

It is well-settled that “a classification neither involving fundamental rights nor proceeding along suspect lines ... cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). “Equal protection is not violated merely because some persons are treated differently than other persons. It only requires that persons similarly situated be treated similarly.” Duncan v. Moore, 754 So.2d 708, 712 (Fla.2000).

The constitutional principle of equal protection “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” F.C.C. v. Beach Commc’ns., Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730 (1913). Under rational basis review, a statute bears a strong presumption of validity and “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Beach Commc’ns., 508 U.S. at 313, 113 S.Ct. 2096. “In other words, a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Id. at 315, 113 S.Ct. 2096.

Indeed, “the Equal Protection Clause does not demand for purposes of rational-basis review that a legislature ... actually articulate at any time the purpose or rationale supporting its classification.” Nordlinger v. Hahn, 505 U.S. 1, 15, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). The burden is on the party attacking the legislation to negate every conceivable basis which might support it. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). A classification does not fail rational basis review merely because it is not made with mathematical nicety or because in practice it results in some inequality. Heller, 509 U.S. at 321, 113 S.Ct. 2637.

Administrative considerations may be sufficient to show a rational basis for a classification. See Armour v. City of Indianapolis, — U.S.-,-, 132 S.Ct. 2073, 2081-82, 182 L.Ed.2d 998 (2012) (administrative considerations provided a rational basis for a city’s distinction between homeowners who had paid their taxes in a lump sum and those who paid over time by installments; thus, when the city changed its tax policy, the city’s refusal to provide a refund to those who paid in a lump sum did not violate equal protection); Tiedemann v. Dep’t of Mgmt. Servs., 862 So.2d 845, 847 (Fla. 4th DCA 2003) (“A concern about keeping costs ‘at an affordable level’ is a legitimate state interest.”); Guttman v. Khalsa, 669 F.3d 1101, 1123 (10th Cir.2012) (“Costs are especially relevant when the state’s actions are subject only to rational basis review, given that conserving scarce resources may be a rational basis for state action.”).

Courts have recently addressed various constitutional challenges to automatic traffic enforcement laws, but no decision has addressed the precise constitutional argument presented in this case. For example, in Idris v. City of Chicago, 552 F.3d 564, 565-67 (7th Cir.2009), the Seventh Circuit upheld a red-light camera law against due process and equal protection challenges, concluding that it was rational to fine the owner rather than the driver and that treating lessors differently from other owners was not irrationally discriminatory.

Similarly, in State v. Arrington, 95 So.3d 324 (Fla. 4th DCA 2012), our court held that there was a rational basis for differing penalties between red light violations caught by police officers and red light violations caught by cameras.

However, neither Arrington nor Idris addressed any equal protection argument that a red light camera law discriminated against the first listed owner of jointly-owned vehicles.

The Relevant Provisions of Section 316.0083, Florida Statutes

Section 316.0083, Florida Statutes (2011), authorizes a penalty for failure to stop at a red light where the violation is captured by a traffic infraction detector. Section 316.0083(l)(b)l.a., Florida Statutes (2011), provides that “[w]ithin 30 days after a violation, notification must be sent to the registered owner of the motor vehicle involved in the violation ... and ... the violator must pay the penalty of $158 to the department, county, or municipality, or furnish an affidavit ... within 30 days following the date of the notification in order to avoid court fees, costs, and the issuance of a traffic citation.”

Under the statute, “the photographic or electronic images or the streaming video evidence ... constitutes a rebuttable presumption against the owner of the vehicle.” § 316.0083(l)(b)l.b., Fla. Stat. (2011).

When payment has not been made within 30 days after notification of a violation, a traffic citation is issued to the address of the registered owner of the motor vehicle involved in the violation. § 316.0083(l)(c)l.a., Fla. Stat. (2011). “In the case of joint ownership of a motor vehicle, the traffic citation shall be mailed to the first name appeañng on the regis tration, unless the first name appearing on the registration is a business organization, in which case the second name appearing on the registration may be used.” § 316.0083(l)(c)l.c., Fla. Stat. (2011) (emphasis added).

The owner of the motor vehicle involved in the violation is responsible and liable for paying the uniform traffic citation when the driver failed to stop at a traffic signal, unless the owner can establish one of the exemptions enumerated in subsections (d)l.a.-d. § 316.0083(l)(d)l.a.-d. (2011). One notable exemption from owner liability applies if “[t]he motor vehicle was, at the time of the violation, in the care, custody, or control of another person.” § 316.0083(l)(d)l.c., Fla. Stat. (2011).

To establish an exemption, the owner of the motor vehicle must, within 30 days after the date of issuance of the traffic citation, furnish to the appropriate governmental entity an affidavit setting forth detailed information supporting an exemption. § 316.0083(l)(d)2., Fla. Stat. (2011). For example, an affidavit supporting an exemption under sub-subparagraph l.c. must include, among other things, the name of the person who had care, custody, or control of the motor vehicle at the time of the alleged violation. § 316.0083(l)(d)2.a., Fla. Stat. (2011). Upon the governmental entity’s receipt of an owner’s affidavit, “the person designated as having care, custody, and control of the motor vehicle at the time of the violation may be issued a traffic citation .... ” § 316.0083(l)(d)3., Fla. Stat. (2011).

Analysis

In this appeal, we are not called upon to address the wisdom, fairness, or logic of the owner notification provision set forth in the red light camera law. Rather, the sole question presented is whether seetion 316.0083(l)(c)l.c., Florida Statutes (2011), violates equal protection or due process by providing that, in the case of a jointly owned vehicle, the traffic citation shall be mailed only to the first name appearing on the registration. Because there is a rational basis for distinguishing between the first named owner of the vehicle and subsequent named owners, there is no equal protection or due process violation.

The classification at issue involves neither a “fundamental right” nor a “suspect” classification. Therefore, the statute need satisfy only rational basis review. In this case, it was at least conceivable for the legislature to believe that, in the case of jointly owned vehicles, the first named owner on the vehicle registration is the person who drives the vehicle most frequently or who otherwise wishes to accept primary responsibility for the vehicle. Whether this is empirically true is irrelevant; rational speculation is enough to sustain the distinction.

Moreover, administrative convenience provides sufficient justification for sending the citation to only one co-owner of a vehicle, as opposed to every co-owner. The procedure of issuing a citation only to the first named owner is simple and easy to administer. It also makes the most sense economically, as it eliminates the duplicative waste of mailing the same notice to multiple vehicle owners. Dupli-cative notices may lead to duplicative payments, thereby causing additional administrative costs associated with refunding overpayments.

Indeed, section 316.0083(l)(c)l.c. is much easier to administer than any alternative method Gonzalez has proposed. Gonzalez’s argument that there is no hardship to issuing a single citation in the name of both registered owners listed on the registration is unpersuasive. If the statute required that all co-owners receive a citation, then the state would necessarily be issuing a citation to at least one person who was innocent of the red light violation. This would undoubtedly increase the administrative costs of adjudicating a single red light incident.

By contrast, under section 316.0038⅛ statutory scheme, if the first listed owner was not the driver at the time of the violation, then the owner may submit an affidavit denying “care, custody or control” of the vehicle. Furthermore, contrary to the trial court’s ruling, the owner notification provision does not grant immunity or otherwise pardon any subsequently-listed co-owners of the vehicle. If the first named owner on the registration submits an affidavit naming the second owner of the vehicle as the person who had control of the vehicle at the time of the alleged violation, then the second owner of the vehicle “may be issued a traffic citation.” § 316.0083(l)(d)3., Fla. Stat. (2011).

In sum, section 316.0083(l)(c)l.c., Florida Statutes (2011), does not violate equal protection or due process by providing that, in the case of a jointly owned vehicle, the traffic citation shall be mailed only to the first name appearing on the registration. The statute’s distinction between a vehicle’s first listed owner and its subsequent owners is rationally related to the state’s legitimate interest in administrative efficiency. We reverse the order dismissing Gonzalez’s traffic citation and remand for further proceedings.

Reversed and Remanded.

DAMOORGIAN, C.J., AND GROSS, J., concur.

      . The State of Florida appealed the same order, but has since voluntarily dismissed its appeal.

      . Without further comment, we reject the City’s argument that Mr. Gonzalez does not have standing to challenge the constitutionality of section 316.0083(l)(c)l.c., Florida Statutes (2011).


author: PER CURIAM.

text:
    Ronald MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3509.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Ronald Mosley, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Ronald Mosley appeals the denial of a petition for writ of habeas corpus. In his petition, Mosley alleged he was entitled to immediate release because upon finding a substantive violation of probation, the court could not revoke his youthful offender status and sentence him to more than six years where he was not convicted of the new substantive crime. There was no error in the court imposing sentences that exceeded the six-year cap that applies to technical violations. St. Cyr v. State, 106 So.3d 487, 489 (Fla. 4th DCA 2013). But, as the state acknowledges, Mosley’s written sentences do not reflect his status as a youthful offender. This may have consequences for him in prison and affect his eligibility for early release. Lachenauer v. State, 117 So.3d 880, 881 (Fla. 4th DCA 2013); Christian v. State, 84 So.3d 437, 443-44 (Fla. 5th DCA 2012). Improper revocation of youthful offender status may be corrected at any time in a rule 3.800(a) motion. Blacker v. State, 49 So.3d 785, 787 (Fla. 4th DCA 2010). As a result, we reverse in part and remand for the court to correct the written sentences to reflect appellant’s status as a youthful offender.

GROSS, CONNER and KLINGENSMITH, JJ., concur.


text:
    STATE of Florida, Appellant, v. Samantha MOSS, Appellee.
    No. 4D12-3987.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Kevin J. Kulik, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Dial v. State, 799 So.2d 407 (Fla. 4th DCA 2001).

TAYLOR, MAY and FORST, JJ., concur.


text:
    Richard S. HALL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D13-535.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Mark Miller of the Appellate Law Office of Mark Miller, P.A., Stuart, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We accept the state’s concession of procedural error, reverse the order finding the appellant guilty of indirect criminal contempt, and vacate the sentence imposed. If the court again takes up the contempt motion, it must comply with Florida Rule of Criminal Procedure 3.840 before it may hold the appellant in indirect criminal contempt. Because we reverse on procedural grounds, there is no need to address the merits of the contempt order at this time.

Reversed and vacated.

WARNER, GROSS and CIKLIN, JJ., concur.


text:
    B.S., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-274.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2014.
    Rehearing Moot Feb. 14, 2014.
    Robert Wesley, Public Defender, and Molina Arena-Randall, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, a child against whom numerous petitions for delinquency were filed, was declared incompetent to proceed pursuant to section 985.19(3), Florida Statutes (2013). The trial court entered an order committing Petitioner to the Department of Children and Families (DCF) and ordered that DCF place Petitioner within 24 hours. When DCF subsequently informed the court that placement depended on the availability of open beds, that DCF would be unable to place the child as directed, and that Petitioner would be released to the custody of her family until a space became available, the court rendered another order that required Petitioner to be held in secure detention until DCF is able to place her.

Petitioner has filed a Petition for Writ of Habeas Corpus, correctly contending that once she was committed, the trial court lost the authority to direct when and where the child should be placed by DCF and that it was error to order her to be held in secure detention pending placement. See § 985.24(2)(d), Fla. Stat. (2013) (providing that “[a] child alleged to have committed a delinquent act or violation of law may not be placed into secure, nonse-cure, or home detention care ... [d]ue to a lack of more appropriate facilities”); Dep’t of Children & Families v. B.N., 979 So.2d 1110 (Fla. 4th DCA 2008) (holding that the trial court’s order requiring DCF to take immediate custody of the juvenile, who was adjudicated incompetent to proceed, for secure placement violated separation of powers); Dep’t of Children & Families v. M.H., 830 So.2d 849 (Fla. 2d DCA 2001); see also Dep’t of Health & Rehabilitative Servs. v. V.L., 583 So.2d 765 (Fla. 5th DCA 1991) (holding that the requirement that the child be placed within ten days could not be upheld because HRS did not have the funding to comply). We note that Respondent, State of Florida, has filed a Response that agrees with Petitioner’s argument and that requests this court grant the Petition for Writ of Habeas Corpus and order the immediate release of Petitioner into the custody of DCF.

We grant the Petition, quash the Order of the trial court requiring that Petitioner be held in secure detention, and order that Petitioner be immediately released to the custody of DCF.

Petition Granted; order quashed; Writ Issued.

SAWAYA, PALMER, and BERGER, JJ., concur.


text:
    Johnathan B. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5720.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Rehearing Denied April 11, 2014.
    Johnathan B. Edwards, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. The dismissal is without prejudice to appellant’s right to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Adams v. State, 734 So.2d 1086, 1087 (Fla. 1st DCA 1999).

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


author: WARNER, J.

text:
    Scherry D. JENKINS, Appellant, v. PLAZA 3000, INC., a Florida corporation, Appellee.
    No. 4D12-4326.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.

      Michelle A. Delaney of Delancyhill, P.A., Miami, for appellant.
    Charles D. Franken of Charles D. Franken, P.A., Plantation, for appellee.
   WARNER, J.

Appellant, Scherry Jenkins, appeals and appellee, Plaza 3000, Inc, cross-appeals a final judgment entered for Plaza. Plaza sought a judgment and to foreclose a lien for unpaid maintenance assessments. Appellant had counterclaimed against Plaza alleging multiple causes of action, which counterclaim was dismissed by the trial court for failure to state a cause of action. Attorney’s fees were also assessed against Jenkins based on the counterclaim. After a non-jury trial, the court denied foreclosure but awarded breach of contract damages to Plaza.

Appellant claims that the court erred in dismissing her counterclaim and awarding attorney’s fees, as well as in granting judgment in favor of Plaza because it failed to prove the amount due and owing. She also challenges the inclusion of future assessments for attorney’s fees and interest thereon, which were added by the trial court without any evidence to support them. We reverse the judgment and conclude that appellant did state a cause of action in her counterclaim for slander of title. As to the final judgment, we agree that Plaza failed to prove the amount, that appellant owed in assessments, with competent, substantial evidence. As to the future assessments, we agree that the court erred in awarding them without a hearing as to their amount and despite its oral pronouncement to the contrary.

Plaza is a non-profit corporation whose shareholders own lots in a commercial shopping plaza. It owns and maintains the plaza’s common areas and has the power— under its articles of incorporation, bylaws, and recorded dedications and restrictive covenants — to assess lot owners for a pro rata share of maintenance costs and collect interest on unpaid assessments. The rate of interest is not specified in the documents.

Jenkins holds title to three lots in the plaza, which are managed by her husband who took care of the assessments to the association. He has been habitually late in paying the assessments, having paid on time only twice in fifteen years. Plaza generally accepted his late payments and applied them towards his most delinquent assessment.

There was always a balance due, and the amount of the balance was frequently in dispute. Several times, Mr. Jenkins presented Plaza with checks which he had previously submitted and Plaza had accepted but not credited to his account. Mr. Jenkins also presented Plaza with a check marked “paid in full,” which Plaza cashed with this language scratched out.

On July 21, 2008, Plaza informed Mr. Jenkins that he owed $22,122 in principal and $4,334 in interest, for a total of $26,456. The letter demanded payment within ninety days or suit would be filed to foreclose the maintenance lien. A few months later, Mr. Jenkins sent Plaza a check for $4,651 marked “paid in full to date” and “paid under protest.” Plaza returned the check “as said check was tendered as payment in full” but was not for $26,456.

Plaza recorded a claim of lien against appellant’s property for $26,456 together with interest at the rate of 11% thereafter, reasonable attorney’s fees and costs of collection, and future unpaid assessments. Several months after the claim of lien was recorded, Mr. Jenkins sent Plaza a check for $10,000 with a letter claiming payment in full, less potential attorney’s fees owed. Plaza returned the check, because it was not for the full amount Plaza believed was due.

Plaza then filed a two-count complaint against appellant for breach of contract and to foreclose the claim of lien. Appellant answered, raising fifteen affirmative defenses. Most of these defenses were based on allegations that Plaza had wrongfully refused tendered checks, had not maintained proper accounting records, and had incorrectly charged interest. Appellant also filed a counterclaim, which was dismissed and amended four times, alleging eleven causes of action. Like the affirmative defenses, these claims were mainly based on Plaza’s alleged failure to maintain proper accounting records and Plaza’s filing of the claim of lien, which appellant alleged was inaccurate. After the fifth amendment, Plaza again moved to dismiss and asked for sanctions under section 57.105, Florida Statutes. The court granted the motion, dismissed the counterclaim, and awarded attorney’s fees of $2,500 under section 57.105, Florida Statutes. Appellant paid these fees.

The court held a lengthy bench trial. Plaza’s accountant presented testimony as to the assessments owed on the property. He had prepared one chart of amounts due, with payments credited and interest accrued, which had been attached to the original 2008 demand letter. He also prepared and presented a second chart for trial, updating the information through the end of May 2012. The second chart also attempted to correct errors in the first chart by crediting appellant with payments that the accountant admitted Plaza had credited late, as well as interest Plaza had charged on those payments. As a result of those errors, the accountant admitted that Mr. Jenkins had been given inaccurate information regarding the amount of assessments owed as well as the interest accrued.

The testimony was confusing as to what payments had been received and credited, as well as how much interest should have been assessed. Importantly, it was not established what percentage interest Plaza actually charged on the late payments. The accountant testified that Plaza had used two different rates, raising the original 8% rate to 11% at some point, although the accountant did not know when the interest rate changed. The trial court took judicial notice of the statutory interest rate, which fluctuated during the relevant time frame.

Despite Plaza belatedly crediting appellant with payments in the accountant’s second chart, there were further disputes over other payments Mr. Jenkins made— some as long ago as the 1990s — which were not resolved. On cross-examination of the accountant, appellant’s counsel attempted to establish that interest was improperly charged on these payments and included in the claim of lien. The accountant did not appear to have any personal knowledge of when these payments were made by Mr. Jenkins or received by Plaza, but he agreed to counsel’s statements as to these facts. Counsel argued that, as of August 3, 2004, Mr. Jenkins would have properly paid all of the assessments, if it were not for the wrongly included interest on payments that were counted late.

After hearing the evidence and the parties’ closing statements, the court orally pronounced judgment, finding that “This case is a mess. The accounting was a mess.” Although doubtful that Plaza had proved the actual amount owed, the court determined that it would enter judgment for $10,037 for assessments accrued as of the claim of lien, relying on calculations made by appellant’s counsel. The court declared it would not include interest on assessments accrued after the claim of lien, because Plaza had rejected proffered payments and also because the interest rate was in dispute. The court further ordered that appellant was not responsible for “portions of the special assessments that the attorney’s fees include herein” because “I don’t think he should pay to sue himself, and certainly there’s interest there.” The court also declined to foreclose the lien, finding “it would be completely and totally inequitable,” and determined “each side will bear their own attorney’s fees and costs.”

In the written final judgment, the court found that it “is unable to determine the exact amount [owed to Plaza], due to the lack of expert testimony or any reliable accounting testimony as to the actual amount due and owing.... Plaintiffs [sic] have not met their burden in demonstrating the actual amount due and owing, but the figure of $10,037, which was presented by [appellant’s] counsel through cross-examination, is the closer amount.” It denied foreclosure of the lien but entered a judgment in the amount of $47,112, which it determined was the $10,037 of past assessments plus assessments through September 2012. That figure appears to include special assessments for attorney’s fees plus interest thereon, despite the court’s oral pronouncement that it would not include those amounts. The court did not receive any evidence on those amounts but was supplied the figure by Plaza. From this final judgment, both parties appeal.

The trial court improperly dismissed Jenkins’ counterclaim for slander of title and improperly awarded attorney’s fees

Appellant complains that the court erred in dismissing her counterclaim in its entirety. The dismissal of a complaint for failure to state a cause of action is reviewed de novo. Someplace New, Inc. v. Francois, 51 So.3d 1215, 1216 (Fla. 4th DCA 2011).

The court dismissed the counterclaims on the grounds that they failed to state a claim and “even if true constitute mere defenses to the Plaintiffs complaint.” Plaza argues this was proper under Florida Rule of Civil Procedure 1.110, which provides: “When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation.” Fla. R. Civ. P. 1.110(d). This rule does not necessarily provide a basis for dismissing a counterclaim merely because it is based on the same facts as an affirmative defense. See Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 733 (Fla.1991) (finding trial court erred when it struck affirmative defenses “because the grounds supporting the defenses were identical to that of the counterclaims” and reversing summary judgment because the affirmative defenses were unrebutted); see also Evans v. Parker, 440 So.2d 640, 641 (Fla. 1st DCA 1983) (noting “matters alleged in the counterclaim constitute a valid defense to [the] complaint, as well as a valid affirmative action for damages”).

The trial court also held that appellant had not properly alleged any damages. As to the count for slander of title, which we do find states a cause of action, Jenkins alleged the cloud on the title resulted in the following special damages: the inability to obtain a conventional loan on the property, thus incurring increased loan costs and a higher interest rate; the loss of a contract to sell the property; the inability to lease the property; and damage to her creditworthiness. The complaint alleged sufficient special damages to proceed. See Cont’l Dev. Corp. of Fla. v. Duval Title & Abstract Co., 356 So.2d 925, 928 (Fla. 2d DCA 1978) (finding plaintiff in slander of title action had properly pled special damages where it “alleged that it lost sales, sustained damage to its credit reputation, and incurred attorney’s fees”); see also Bothmann v. Harrington, 458 So.2d 1163, 1170 (Fla. 3d DCA 1984) (in a slander of title action, “the pecuniary loss recoverable for the injurious falsehood is restricted to that which results directly and immediately from the falsehood’s effect on the conduct of third persons and the expenses incurred to counteract the publication”) (emphasis omitted). In addition, the costs to remove the cloud on the title are considered special damages. See Bloom v. Weiser, 348 So.2d 651, 653 (Fla. 3d DCA 1977); Glusman v. Lieberman, 285 So.2d 29, 31-32 (Fla. 4th DCA 1973).

The trial court correctly dismissed the remaining ten counts of the counterclaim for failure to state a cause of action. We have reviewed them, and without any argument in appellant’s brief as to why each does properly plead a cause of action, we affirm the dismissal of these counts.

As to the attorney’s fees which the trial court assessed pursuant to section 57.105(1), Florida Statutes (2012), for filing the counterclaims, the court entered the order without making a finding that the action was frivolous or so devoid of merit on the facts and law as to be completely untenable. See Chue v. Lehman, 21 So.3d 890, 891-92 (Fla. 4th DCA 2009) (requiring the trial court to make a finding that the action was frivolous or devoid of merit to award such fees). Furthermore, at least as to the slander of title cause of action, we have found that it did state a cause of action. We thus reverse the assessment of attorney’s fees.

The trial court’s damage award is not supported by competent, substantial evidence

With respect to the final judgment, appellant argues that Plaza had not proved its damages of $10,037 by competent, substantial evidence. A trial court’s findings of fact are reviewed for competent, substantial evidence. Sun Harbor Homeowners’ Ass’n, Inc. v. Bonura, 95 So.3d 262, 268 (Fla. 4th DCA 2012).

In its final judgment, the trial court found that Plaza had “not met [its] burden in demonstrating the actual amount due and owing, but the figure of $10,037, which was presented by [appellant’s] counsel through cross-examination, is the closer amount.” (emphasis supplied). While appellant’s counsel did show that the lien amount should be reduced — both for payments Mr. Jenkins made that Plaza credited late, and for interest Plaza improperly assessed on those payments— counsel also correctly argued that the interest rate on all of the unpaid assessments was improperly charged in excess of the statutory rate. In the absence of an agreement, the statutory interest rate must be used to calculate prejudgment interest. See § 687.01, Fla. Stat. (2012); Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985) (legislature establishes statutory interest rate which controls prejudgment interest).

In arguing that the claim of lien should be reduced to $10,037, counsel assumed that Plaza had charged 12% interest, although she also argued that only the statutory interest rate should have been used, thus preserving the argument on appeal that even the $10,037 figure was wrong. It appears as though most, if not all, of this figure is interest charged. Therefore, the rate of interest was extremely important to the sufficiency of the evidence to prove damages. As to interest, the trial court found, “The rate of interest in this cause is in doubt and in dispute. The evidence indicates it was either 11% or 12% at some point in time.” Plaza’s accountant also testified, however, that at some point Plaza charged Jenkins 8% interest. It is unclear which interest rate was charged on which payment, and none of the interest rates used appear to be based upon section 55.03, Florida Statutes (2012). See § 687.01, Fla. Stat. (2012) (where an interest rate is not otherwise provided, the rate in section 55.03, Florida Statutes, should be used). Therefore, because of the improper calculation of interest, the $10,037 judgment is not supported by competent, substantial evidence. Evidence of the amount of damages cannot be based on speculation and conjecture. See George Hunt, Inc. v. Dorsey Young Constr., Inc., 385 So.2d 732, 733 (Fla. 4th DCA 1980).

Although normally the assessment of prejudgment interest is a ministerial duty of the trial court, in this case the court did not and, based on the evidence, could not determine the actual dates upon which Jenkins’ payments were credited, properly or improperly. Therefore, because of the sloppy bookkeeping, reversing to simply recalculate the interest is not appropriate in this case. We thus reverse and remand for the trial court to delete the $10,037 from the final judgment.

As to the assessments coming due after the claim of lien but prior to the final judgment, we reverse for the deletion of any portion of the assessments representing attorney’s fees and interest thereon, resulting from this litigation. In addition, the amount appears to include interest on the assessments, which the trial court orally pronounced that it did not intend to include because of the tender of payments which were refused.

Based on its oral pronouncements, the trial court intended to delete those from the award, but did not do so in its final judgment. Because the evidence at trial did not establish the amount due once the attorney’s fees and interest had been deleted, and the parties disagreed as to this amount, the court erred in failing to hold a hearing on this issue. We therefore remand for the court to properly determine the amount of future assessments, minus attorney’s fees and interest. ■

We have considered the remaining issues raised, as well as those on cross-appeal, and affirm on all other issues.

For the foregoing reasons, we reverse the final judgment and remand for further proceedings consistent with this opinion.

MAY and FORST, JJ., concur.

      . In a motion for a directed verdict, appellant’s counsel argued that, at best, $10,037 was owed as of the recording of the claim of lien, and that this amount should be further reduced by the $10,000 payment Mr. Jenkins made, and Plaza refused, after the claim of lien was filed.

      . We would note that it appears that the amounts paid by Mr. Jenkins would have covered the actual assessments. What Plaza loses is interest on past due assessments.


text:
    Stella ABECASSIS, Appellant, v. Alvin M. WANDER and Myra Wander, Appellees.
    No. 4D12-2661.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2014.
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, Re-tamar & Millian, P.A., Deerfield Beach, and Edward L. Kind, P.A., Boca Raton, for appellant.
    Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

AFFIRMED. See Trotter v. State, 576 So.2d 691 (Fla.1990); Griefer v. DiPietro, 625 So.2d 1226 (Fla. 4th DCA 1993).

WARNER, GROSS and CONNER, JJ., concur.


text:
    Cynthia RICHARDSON, Appellant, v. ARAMARK/SEDGEWICK CMS, Appellees.
    No. 1D13-4138.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Rehearing Denied April 11, 2014.
    Charles H. Leo of Charles H. Leo, P.A., Orlando, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    James H. Wyman of Hinshaw & Culbertson, LLP, Coral Gables, for Appellees.
   PER CURIAM.

Based ' on Castellanos v. Next Door Company, 124 So.3d 392 (Fla. 1st DCA 2013), we AFFIRM. In so doing, we certify that our disposition of the instant case passes upon the same question we certified in Castellanos. Id. at 394. We, therefore, decline to follow the Appellant’s suggestion that we certify additional questions of great public importance relating to the instant case.

ROWE, MARSTILLER, and RAY, JJ., concur.