author: CASANUEVA, Judge. VILLANTI, Judge,

text:
    Brian P. RUSH, Appellant, v. Louis E. BURDGE; Riviera Pools, Inc.; Riviera Pools of Tampa, Inc.; and John Doe, Lessor, Appellees.
    No. 2D13-1175.
    District Court of Appeal of Florida, Second District.
    July 11, 2014.

      Steven L. Brannock and Celene H. Humphries of Brannock & Humphries, Tampa, and Brian P. Rush of Woodlief & Rush, P.A., Tampa, for Appellant.
    Daniel P. Mitchell of Barr, Murman & Tonelli, P.A., Tampa, for Appellees.
   CASANUEVA, Judge.

Brian P. Rush appeals the trial court order imposing sanctions for unprofessional conduct in the amount of $5000 for attorney’s fees and $3000 for costs, for a total of $8000. Mr. Rush is an attorney engaged in this instance in the practice area of personal injury. The events giving rise to the sanction arose in the context of a Compulsory Medical Examination (CME). We reverse.

This case arises from an incident that occurred on May 9, 2011, at the office of Dr. Michael Shahnasarian, an expert retained by Appellees to conduct a CME of Ronald McKibban, the plaintiff in a personal injury suit brought against Appel-lees. Mr. Rush, as counsel for Mr. McKibban, raised several last-minute, albeit timely, objections to the CME, which were served on opposing counsel via facsimile at 5:00 p.m., Friday, May 6, 2011. Mr. McKibban appeared for the scheduled CME on Monday morning and was instructed to fill out a seventeen-page pre-exam questionnaire. Mr. McKibban presented the doctor with a copy of the objections, which included an objection to the completion of lengthy information forms, but the CME continued when Dr. Shahna-sarian learned that no court order had been entered limiting it.

Mr. McKibban, diagnosed with cognitive impairment and memory loss, became concerned about the questionnaire after answering a few questions and called his attorney, Mr. Rush. Dr. Shahnasarian attempted unsuccessfully to contact one of the defense attorneys. According to Dr. Shahnasarian and two members of his staff, when Mr. Rush arrived at Dr. Shah-nasarian’s office, the two engaged in a heated discussion, during which Mr. Rush was loud, aggressive, and used abusive and threatening language. Mr. Rush claims he merely informed Dr. Shahnasarian that his client would not fill out the lengthy survey and that Mr. Rush would ask the judge to impose sanctions.

A member of Dr. Shahnasarian’s staff told Mr. McKibban that he could tear up the completed portions of the questionnaire, which he did. Ultimately, it was agreed that the CME would continue as scheduled for that day and the dispute regarding the questionnaire would be submitted to the court. Mr. Rush left the office and the CME proceeded without further difficulties. Mr. Rush filed a motion with the court to resolve the questionnaire discovery objection, and Appellees moved for sanctions against Mr. Rush, alleging that he intentionally interfered with and disrupted the May 9 CME, unfairly depriving Appellees of the benefit of the exam.

The trial court ruled as to the questionnaire objection that Mr. McKibban would be required to complete the questionnaire, but with the full assistance of Mr. Rush. After an evidentiary hearing as to the motion for sanctions, the court entered an order imposing sanctions against Mr. Rush, finding he “created an atmosphere of anxiety and hostility which disrupted the examination.” After a hearing as to amount, the court ordered Mr. Rush to pay $5000 in attorney’s and paralegal fees and $3000 in costs to Appellees.

We review an order imposing sanctions for abuse of discretion. Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983); J.D.C. v. M.E.H., 118 So.3d 933, 935-36 (Fla. 2d DCA 2013). “A trial court ... abuses its discretion if its ruling is based on an ‘erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” McDuffie v. State, 970 So.2d 312, 326 (Fla.2007) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)).

In this case, Appellees moved for monetary sanctions against Mr. Rush pursuant to Florida Rule of Civil Procedure 1.380 and pursuant to the trial court’s inherent power to sanction attorney misconduct. We will address the latter basis first. In the trial court’s order awarding sanctions, certain findings of fact are germane to our analysis. First, the trial court found that “Rush’s disruptive acts were not committed maliciously or with malevolent intent, but in a misguided attempt to represent his client;” and second, that the most serious charge leveled against him, the destruction of evidence, was not proved.

In Florida, a trial court has the inherent authority to impose a sanction against an attorney for bad faith conduct. Moakley v. Smallwood, 826 So.2d 221, 226 (Fla.2002). This power includes the imposition of a financial assessment. Id. However, this power is not unlimited and requires specific findings to ensure its “restrained use,” in compliance with due process. Id. at 226-27; see also Kuttas v. Ritter, 879 So.2d 3, 9 (Fla. 2d DCA 2004).

In the exercise of its inherent authority a trial court must strike an “appropriate balance” between “condemning as unprofessional or unethical litigation tactics undertaken solely for bad faith purposes” against the needs of counsel to provide necessary advocacy in the pursuit of their client’s interest. Moakley, 826 So.2d at 226. To insure a proper balance has been attained, Moakley imposes upon the trial court the necessity to make an express finding of bad faith conduct, together with “detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.” Id. at 227.

From Moakley it is easy to discern that the evil to be avoided is conduct that is undertaken in “bad faith.” An examination of the order on review in this case reveals that the court did not make a finding that Mr. Rush acted in bad faith. Rather, the court concluded his behavior was intentional and disruptive; a conclusion with which this court agrees. Next, the court found that Mr. Rush’s conduct was not “committed maliciously or with malevolent intent.” This finding, at a minimum, suggests the trial court concluded Mr. Rush’s behavior lacked the bad faith element. Thus, we conclude that without a finding of bad faith, it was error to impose a financial sanction premised upon the exercise of the trial court’s inherent authority. See id.

We are invited by Appellees’ counsel to return the matter for further proceedings should we conclude, as we have, that there was a fatal flaw in the order because of a lack of a specific finding of bad faith conduct. We decline the invitation. The facts establish that the CME was completed, that part of the delay can be properly attributed to the need for a judicial resolution of a legitimately disputed issue, and that the significant issues were resolved in Mr. Rush’s favor. We also point out that one allegation was refuted before Appel-lees’ motion was even filed. Likely, a proper and complete investigation would have precluded that assertion from being made. We conclude that this type of conduct is not sufficient to come within the parameters of Moakley so as to authorize a financial penalty for tactics undertaken “solely for bad faith purposes.” See id. at 226; see also Shniderman v. Fitness Innovations & Techs., Inc., 994 So.2d 508 (Fla. 4th DCA 2008) (affirming trial court’s sanction of fees against attorney pursuant to Moakley based on evidence demonstrating two years of bad faith litigation, including obtaining a default premised upon a knowingly inaccurate verified complaint and engaging in discovery misconduct to avoid acknowledging the inaccuracy and preserve the default).

Similarly, we reject Appellees’ argument that an affirmance is proper based on the trial court’s authority to sanction for discovery violations under rule 1.380. Neither the circumstances of this case nor the findings of the trial court support a sanction of attorney’s fees against Mr. Rush for failure to make discovery. See Liebreich v. Church of Scientology Flag Serv. Org., Inc., 855 So.2d 658, 659 (Fla. 2d DCA 2003) (“Rule 1.380(a)(4) provides for the award of expenses on a motion for order compelling discovery....”); Horace Mann Ins. Co. v. Chase, 51 So.3d 640, 641 (Fla. 1st DCA 2011) (reversing sanctions as inappropriate under rule 1.380 “because the Appellees did not prevail on a motion to compel and Appellant’s counsel did not fail to appear at a duly noticed deposition”).

While we conclude that this type of conduct is not sufficient to come within the parameters of Moakley so as to authorize a financial penalty, in so stating, we are not condoning Mr. Rush’s behavior. Simply, it was not professional and is not excused by the claim that Mr. Rush has a large docket of casework.

Reversed.

CRENSHAW, J., Concurs.

VILLANTI, J., Concurs with opinion.

VILLANTI, Judge,

Concurring.

Although I fully concur in this opinion, I cannot help but further comment on the lack of professionalism and common courtesy displayed by all of the participants in this ease, which has ultimately resulted in the expenditure of the parties’ resources, the trial court’s time, and this court’s time.

It is not clear from the record exactly what steps were taken by counsel for Ap-pellees to schedule the CME of Mr. Rush’s elderly client, Mr. McKibban, with Dr. Shahnasarian and to communicate the intended scope of that examination. What is clear is that neither party sought or obtained a court order setting forth the parameters of the CME before it was scheduled to occur. While such an order is not a necessity, there are apparently a sufficient number of disputes surrounding this type of examination to warrant the existence of a standard “Hillsborough County Uniform Order on CMEs.” This order provides, in pertinent part, that an “exami-nee will not be required to complete lengthy forms upon arrival at the examiner’s office.”

Mr. Rush did not initially object to the CME of his client and, as mentioned above, did not seek to have the court enter the Uniform Order on CMEs. However, late on the Friday afternoon before the Monday morning CME, Mr. Rush faxed objections to Appellees’ counsel that essentially tracked the provisions of the Uniform Order. Upon receipt of these objections, counsel for Appellees apparently took no steps to alert Dr. Shahnasarian to Mr. Rush’s objections and apparently did not attempt to contact Mr. Rush to discuss the matter. Mr. Rush provided a copy of his objections to Mr. McKibban, and Mr. McKibban dutifully took them with him to the CME. However, Dr. Shahnasarian, for his part, refused to honor the objections and told Mr. McKibban that he would follow his standard protocol unless “he got a court order to the contrary.” Dr. Shah-nasarian then handed Mr. McKibban a seventeen-page questionnaire and expected him to complete it without the assistance of counsel.

Understandably, Mr. McKibban became concerned that his responses might be harming his case; so he elected to call Mr. Rush. Upon receiving the call, Mr. Rush drove to Dr. Shahnasarian’s office to address the objections in person rather than addressing them over the phone with Dr. Shahnasarian or opposing counsel. Needless to say, Mr. Rush’s actions were perceived as disruptive and adversarial. Ultimately, however, the court imposed the conditions on the CME sought by Mr. Rush, including allowing Mr. McKibban to complete the forms with the assistance of counsel and with limitations on the use of Mr. McKibban’s responses.

Clearly Mr. Rush should not have waited until the day before the CME to file his objections. As the facts unfolded in this case, it would have behooved him to obtain entry of the Uniform Order upon being served with the notice of CME. And clearly it might have been better had Mr. Rush attempted to call Dr. Shahnasarian rather than simply appearing in his office lobby. However, it is equally clear that counsel for Appellees should not have ignored Mr. Rush’s objections when they were received. As the trial court noted at the evidentiary hearing, counsel for Appel-lees could have elected to voluntarily comply with the limitations included in the Uniform Order in the spirit of professionalism. And Dr. Shahnasarian — no stranger to serving as an expert in personal injury litigation — should have addressed the issue with counsel for Appellees when presented with Mr. Rush’s objections rather than forcing the disputed forms on Mr. McKibban and then legalistically instructing Mr. Rush to “get a court order.” While I certainly do not condone all of Mr. Rush’s actions, I agree with my colleagues that, in light of the conduct displayed by all of the professionals involved in this matter, Mr. Rush’s conduct was not sanc-tionable. Had professionalism by any of them prevailed, this matter could have been entirely avoided.

      . Appellees' motion alleged several actions by Mr. Rush which disrupted the exam, including destroying evidence and refusing to preserve destroyed evidence, coaching Mr. McKibban and instructing him how to answer questions, loudly and belligerently attempting to dictate to Dr. Shahnasarian the conditions of his examination, and violating copyrights. The trial court’s order focuses only on the argument between Mr. Rush and Dr. Shahna-sarian.

      . While one of the attorneys representing Ap-pellees testified that he was on a plane on the Monday morning of the CME, the record indicates that at least two other attorneys at the firm were working on the case.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    Donald BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4834.
    District Court of Appeal of Florida, Second District.
    July 11, 2014.
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Donald Black challenges his judgment and sentence for possession of methamphetamine. He pleaded to the charge but reserved his right to appeal the denial of a dispositive motion to suppress. Because we conclude that officers lacked probable cause to arrest Black, we reverse the denial of the suppression motion, reverse Black’s judgment and sentence, and remand for his discharge.

Black was charged with felony petit theft, resisting an officer without violence, and possession of methamphetamine. All of the charges stemmed from Black’s arrest upon leaving a Sears department store. Black filed a motion to suppress the methamphetamine found on his person following his arrest for petit theft. The motion was denied, and Black proceeded to trial only on the petit theft and resisting charges. A jury acquitted him, and Black subsequently pleaded to the possession charge but preserved for appeal the denial of his suppression motion.

Testimony at the suppression hearing established that officers received an “in progress” theft call. According to Officer Maultsby, who testified at the suppression hearing, one officer went inside the store, met with the loss prevention employee, and watched the store’s security monitors. Officer Maultsby remained outside in the store’s parking lot. He stated that the inside officer relayed Black’s description and activities to him. Black was walking between merchandise racks, selecting items, and placing them in a shopping cart. Officer Maultsby testified that he was told Black was placing items in the cart and “concealing” them. There was no further explanation of Black’s activities in the store.

Officer Maultsby was later advised that Black was exiting the store through a particular door. He testified that upon Black’s exit into the parking lot, he announced himself as a police officer and told Black to get on the ground. Officer Maultsby had his Taser out, and he had already decided that he was “going to take [Black] down.” Black did not have any items in his hands nor did he have the shopping cart.

As he did at the suppression hearing, Black argues on appeal that the officers lacked probable cause to arrest him for petit theft. Only Officer Maultsby testified at the suppression hearing, and he did not provide detailed information about Black’s actions inside the store. He stated only that Black was moving in and out among the merchandise racks, placing items in his shopping cart, and “concealing” them. There was no evidence as to how Black was concealing items or what precisely that meant. Additionally, there was no evidence that Black attempted to remove anything from the store without purchasing it. While Black’s actions may have been vaguely suspicious, they do not rise to the level of probable cause necessary for warrantless arrest. See, e.g., Wright v. State, 126 So.3d 420, 424 (Fla. 4th DCA 2013).

As a result, Black’s motion to suppress should have been granted. We reverse the judgment and sentence and remand for his discharge.

KHOUZAM, J., and BAUMANN, HERBERT J., Jr., Associate Judge, Concur.

      . Black initially contended that Officer Maultsby could not rely on the statements of his fellow officer, citing section 901.15, Florida Statutes (2012). This court has previously held that the fellow officer rule applies to misdemeanor arrests, finding no reason the rule "should not allow the information that a misdemeanor has occurred in the presence of an officer to be imputed from one officer to another.’’ State v. Boatman, 901 So.2d 222, 223-24 (Fla. 2d DCA 2005).


author: WALLACE, Judge.

text:
    John OLIVERA, as Personal Representative of the Estate of Nelsa Plaja, deceased, Appellant, v. BANK OF AMERICA, N.A. as successor by merger to BAC Home Loan Servicing, L.P., Appellee.
    No. 2D13-629.
    District Court of Appeal of Florida, Second District.
    July 11, 2014.

      Andrea H. Dueñas of the Law Office of A. Dueñas, P.A., Lantana; Brian K. Korte and Scott J. Wortman of Korte & Wort-man, P.A., West Palm Beach, for Appellant.
    Curtis A. Wilson of McCalla Raymer, LLC, Orlando, for Appellee.
   WALLACE, Judge.

John Olivera, as the personal representative of the Estate of Nelsa Plaja, deceased, appeals a final summary judgment of foreclosure entered against Ms. Plaja, and in favor of Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, L.P. (BOA). Because there remain genuine issues of material fact about BOA’s standing to foreclose on the subject note and mortgage, we reverse the final summary judgment of foreclosure and remand for further proceedings. We further observe that although the record suggests that notice of acceleration was sent to Ms. Plaja, BOA failed to introduce admissible evidence to refute Ms. Plaja’s affirmative defense about compliance with a condition precedent in the mortgage, which required written notice of acceleration.

I. THE FACTS AND PROCEDURAL BACKGROUND

On June 22, 2006, Nelsa Plaja executed a note in favor of Ocwen Loan Servicing, LLC (Ocwen), and a mortgage on the subject real property in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as Ocwen’s nominee. On December 22, 2009, BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P. (BAC) filed a foreclosure complaint against Ms. Plaja on the note and mortgage. BAC alleged that it was the servicer for the owner and was acting as the designated holder of the note and mortgage. BAC alleged further that the mortgage had been subsequently assigned to BAC, which assignment was to be recorded. The complaint also asserted that Ms. Plaja defaulted on the note on September 1, 2009, and that all of the conditions precedent to acceleration of the note and to foreclosure of the mortgage had been met. BAC attached copies of the note and mortgage to the complaint.

Ms. Plaja filed an answer to the complaint in which she generally denied BAC’s allegations that it was the servicer for the owner, was acting on behalf of the owner, was the current designated holder of the note and mortgage, and that the mortgage had been assigned to it. She asserted in her affirmative defenses that BAC lacked standing to foreclose on the note and mortgage and that it had failed to comply with the conditions precedent to foreclosure. Specifically, she alleged that “[t]he Complaint fails to establish a reasonable chain of ownership for the promissory note. Therefore, Plaintiff lacks standing to bring this action. Plaintiff is not a party to the mortgage instrument or the promissory note which is the subject of this foreclosure action.” Ms. Plaja further argued that “[ajlthough Plaintiff claims to be the owner of the promissory Note, the Note/Mortgage submitted indicates that Ocwen Loan Servicing, LLC is the holder of the Note/Mortgage.” With regard to the conditions precedent, Ms. Plaja specifically alleged that BAC had failed to give her notice of acceleration as required under paragraph 22 of the mortgage.

On May 26, 2011, about eighteen months after BAC had filed the complaint, BAC filed the original note and a copy of the mortgage. Unlike the copy of the note attached to the complaint, the original note filed by BAC contains two undated in-dorsements, which are stamped onto the back of the second page of the note. One indorsement states, “PAY TO THE ORDER OF COUNTRYWIDE HOME LOANS, INC., WITHOUT RECOURSE, COUNTRYWIDE BANK, N.A. AS AGENT FOR OCWEN LOAN SERVICING LLC.” This indorsement was signed by Maher Abdalla, Collateral Processing Officer. The other indorsement is in blank and states, “PAY TO THE ORDER OF _ WITHOUT RECOURSE, COUNTRYWIDE HOME LOANS, INC.” This indorsement was signed by David A. Spector, Managing Director.

On May 7, 2012, the trial court entered an order substituting Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, L.P., as the plaintiff in the underlying matter. Accordingly, BOA became BAC’s successor in interest. On June 6, 2012, BOA filed an original assignment of the mortgage. The assignment, dated June 14, 2011, purports to transfer the mortgage from “MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE OCWEN LOAN SERVICING, LLC” to “BAC HOME LOANS SERVICING, L.P. F/K/A COUNTRYWIDE HOME LOANS SERVICING, L.P.” Notably, the date of the assignment is about eighteen months later than the date that BAC began the foreclosure action.

BOA filed its motion for summary judgment on October 10, 2012. In support of its motion, BOA filed the affidavit of Stacy Lynn Carr, an Assistant Vice President of BOA. Ms. Carr averred that BOA had possession of the promissory note, which had been duly indorsed, and that BOA, as successor to BAC, was the assignee of the mortgage. But Ms. Carr’s affidavit does not establish when the indorsements were made or when BAC, its predecessor in interest, became the holder of the note and mortgage. Moreover, the assignment of the mortgage to BAC postdates the foreclosure complaint. And neither the motion for summary judgment nor Ms. Carr’s affidavit address Ms. Plaja’s affirmative defenses.

Ms. Plaja filed a memorandum in opposition to the motion for summary judgment and her affidavit in opposition. In her memorandum, Ms. Plaja argued that BOA lacked standing to foreclose because it had not provided any document evidencing its relationship to the original lender or any assignment of right in its favor. In her affidavit, Ms. Plaja averred that she never received a demand letter prior to the initiation of the foreclosure action.

Following a hearing, the circuit court granted summary judgment in favor of BOA and entered a Uniform Final Judgment of Foreclosure in favor of BOA. Mr. Olivera filed this appeal.

II. THE STANDARD OF REVIEW

We review an order granting summary judgment de novo. Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1116 (Fla. 2d DCA 2011).

A movant is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The movant has the burden to prove the absence of a genuine issue of material fact, and this court must view every possible inference in favor of the party against whom summary judgment has been entered. And, if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.

Id. at 1116-17 (citations omitted) (internal quotation marks omitted). In addition, BAC must not only establish that there exist no genuine issues of material fact regarding its claims, but it must also either factually refute the affirmative defenses or establish that they are legally insufficient. See id. at 1117.

III. MATERIAL ISSUES OF FACT ABOUT STANDING

On appeal, Mr. Olivera argues that BOA, as BAC’s successor in interest, lacked standing to foreclose on the subject note and mortgage because BAC was not a party to the original loan documents and failed to proffer any evidence about when it acquired its interest in the note. Mr. Olivera points out that the undated in-dorsements on the note do not establish BAC’s standing when the action in the circuit court commenced. Moreover, the June 14, 2011, assignment of the mortgage from MERS to BAC postdates the filing of the underlying action.

We agree with Mr. Olivera’s argument that there remained genuine issues of material fact about BAC’s, and hence BOA’s, standing to foreclose that precluded the entry of summary judgment. Nothing in the record reflects a chain of transfer of interest in the note from the original lender, Ocwen, to BAC, the original plaintiff, or that BAC became the holder of the note before it filed the subject complaint. See BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010) (“The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative.”). And, the assignment of mortgage to BAC postdates the underlying action. See Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013) (“[S]tanding must be established as of the time of filing the foreclosure complaint.”).

The note contains an indorsement in blank by Countrywide Home Loans, Inc., which potentially could establish BAC’s, and hence BOA’s, status as holder when BAC took possession of the note. See § 671.201(21)(a), Fla. Stat. (2009) (“ ‘Holder’ means ... [t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.”); see also Taylor, 74 So.3d at 1117 (noting same); Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010) (“Aurora’s possession of the original note, indorsed in blank, was sufficient under Florida’s Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms.”). Although Ms. Carr alleged in her affidavit that BOA had possession of the note, which had been duly indorsed, Ms. Carr’s affidavit does not establish when its predecessor, BAC, took possession of the note or that such possession occurred before the commencement of the underlying action.

Ms. Plaja raised standing as an affirmative defense in her answer and specifically alleged that the complaint failed to establish a reasonable chain of ownership of the note and mortgage. And BOA “was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor.” Jean-Jacques, 28 So.3d at 939. Accordingly, we reverse the summary judgment in favor of BOA because there remained genuine issues of material fact about BOA’s standing to foreclose that precluded the entry of summary judgment in its favor.

IV. MATERIAL ISSUES OF FACT ABOUT THE SATISFACTION OF A CONDITION PRECEDENT

Mr. Olivera further argues that BOA failed to refute Ms. Plaja’s affirmative defense that it did not comply with the condition precedent in paragraph 22 of the mortgage concerning notice of acceleration or to refute her averment that she did not receive such notice. BOA did not reply to Ms. Plaja’s affirmative defense, and it did not address the defense in its motion for summary judgment. Morevoer, BOA did not file any admissible evidence to establish that its predecessor, BAC, had sent Ms. Plaja notice of acceleration of the note in accordance with paragraph 22 of the mortgage before BAC filed suit.

BOA points out, and the record reflects, that during discovery BAC provided Ms. Plaja with a copy of a notice of acceleration dated September 17, 2009, which predates the filing of the complaint by several months. But BOA acknowledges on appeal that it failed to enter the notice into evidence and requests that we remand for the sole purpose of allowing it to correct that error by submitting the notice into evidence.

BOA’s concession reflects that it failed to refute Ms. Plaja’s affirmative defense concerning satisfaction of a condition precedent to the underlying action and to establish that it was entitled to summary judgment as a matter of law. See Taylor, 74 So.3d at 1117. For the reasons already stated, we decline BOA’s invitation to limit the scope of the proceedings on remand to the correction of this deficiency.

V. CONCLUSION

Because a genuine issue of material fact exists concerning BOA’s standing to foreclose and because BOA did not refute Ms. Plaja’s affirmative defense concerning the satisfaction of a condition precedent, BOA was not entitled to summary judgment as a matter of law. Accordingly we reverse the Uniform Final Judgment of Foreclosure and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KELLY and CRENSHAW, JJ., Concur.

      . Mr. Olivera also argues on appeal that the trial court erred in granting summary judgment because BOA’s affidavit in support of its motion for summary judgment did not comply with Florida Rule of Civil Procedure 1.510 and because material discovery remained outstanding. In light of our decision to reverse the final summary judgment of foreclosure, these points are moot and do not warrant further discussion.

      . Nothing in the record establishes any relationship between BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P. and the entities identified in the indorsements, Countrywide Home Loans, Inc., or Countrywide Bank, N.A., as agent for Ocwen Loan Servicing, LLC. More important, the undated indorsements, which were not attached to the complaint, do not establish that any of the foregoing entities owned or held the note when BAC filed the complaint.


author: ALTENBERND, Judge.

text:
    Curtis J. REEVES, Petitioner, v. Chris NOCCO, as Sheriff of Pasco County, Florida, Respondent.
    No. 2D14-1784.
    District Court of Appeal of Florida, Second District.
    July 11, 2014.

      Frances E. Martinez of Escobar & Associates, P.A., Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Curtis J. Reeves petitions this court for a writ of habeas corpus, contending that the circuit court erred in denying him pretrial release while he is awaiting trial for second-degree murder and aggravated battery. We conclude that he is entitled to some relief.

Because Mr. Reeves is charged with second-degree murder, an offense punishable by life imprisonment, he is one of those exceptional criminal defendants who is not constitutionally entitled to pretrial release on reasonable conditions under article I, section 14, of the Florida Constitution so long as the State established at his bond hearing the proof described in State v. Arthur, 390 So.2d 717, 720 (Fla.1980), and Russell v. State, 71 Fla. 236, 71 So. 27, 28 (1916). However, even when the State makes this strong demonstration in such a case, it merely establishes that the defendant has no constitutional right to pretrial release on reasonable conditions. Under the clear holding in Arthur, the defendant still has the option of proving certain facts that permit the circuit court to use its discretion to grant pretrial release under sufficient conditions.

In this case, Mr. Reeves exercised his option to present such proof. However, due to a procedural irregularity that we explain later, the circuit court reversed the logical order for this decision-making process. It first heard Mr. Reeves’s evidence that would entitle him to an appropriate bond and then heard the State’s evidence to support its claim that he was not entitled to the constitutional right to pretrial release. At the end of the hearing, the circuit court ruled that the State had met its burden and denied pretrial release. It then explained the terms and conditions of the bond that it would have authorized if the State had not met its burden. It never expressly ruled on Mr. Reeves’s request to receive discretionary pretrial release.

From our review of the record, we are inclined to believe that the circuit court made an error of law and that it did not realize it had the discretionary power to grant release on the terms and conditions that it announced. In other words, it believed it must deny release if the State met its burden. It appears that the circuit court was impressed with Mr. Reeves’s pretrial release evidence, which unquestionably was strong. The court never expressed any reason or concern that would have caused it to deny pretrial release, as a matter of reasoned discretion.

Initially, this court considered merely instructing the circuit court to grant pretrial release on the conditions that it had announced. But on further review of the record, we are not completely certain that the trial court made the above-described error of law. It is at least conceivable that the circuit court silently exercised discretion to deny release without explaining its reasons for that decision. Accordingly, we grant relief to the extent that we authorize the circuit court to grant pretrial release on the conditions that it announced at the conclusion of the hearing on the motion to set bond or to deny pretrial release in an order that provides a reasoned explanation for that discretionary decision.

I. THE INITIAL PROCEEDINGS IN CIRCUIT COURT

Mr. Reeves, a seventy-one-year-old retired police officer, is accused of shooting and killing Chad Oulson in a movie theater on January 13, 2014. The incident has become a matter of public interest. In ruling on the motion to set bond, the circuit court declined to discuss its findings concerning the facts of the case for the reasons explained in State ex rel. Van Eeghen v. Williams, 87 So.2d 45, 46 (Fla.1956). We likewise will refrain from any extensive discussion of the evidence.

According to our limited record, Mr. Reeves was arrested on January 18, 2014, for second-degree murder. He made his first appearance on January 14, 2014, before Judge Lynn Tepper. At that hearing, which occurred prior to the filing of an information, the State had not filed a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132. Thus, the circuit court conducted a hearing to determine pretrial release pursuant to rule 3.131(b). The court denied pretrial release, finding that proof was evident based only on the content in the criminal report affidavit. Thereafter, Mr. Reeves filed a “motion to release defendant on his own recognizance or set reasonable bail.” Judge Siracusa held a lengthy evidentiary hearing on this motion immediately following Mr. Reeves’s arraignment on the charges contained in the information. It is his ruling on that motion that we examine in this proceeding.

After both of these hearings had occurred, this court issued its opinion in Preston v. Gee, 133 So.3d 1218 (Fla. 2d DCA 2014). In that case, the defendant filed a petition for habeas corpus challenging a denial of bond at a hearing comparable to the first appearance in this case before Judge Tepper. This court held in Preston that the criminal report affidavit by itself was insufficient to establish the high degree of proof required under article I, section 14, to deny bond for a robbery charge that was a first-degree felony punishable by life. Id. at 1221, 1228.

At the first appearance in this case, the circuit court obviously did not have the benefit of Preston when it denied bond. At least from our limited record, it appears that had the order denying bond at first appearance been challenged by a petition for habeas corpus, this court would likely have granted the petition and remanded for an appropriate hearing.

Fortunately, the extensive hearing before Judge Siracusa approximates the hearing that we contemplated would occur on remand in Preston. In this opinion we will not repeat the discussion in Preston that demonstrates the extent to which both the current rules of procedure and the relevant statutes are designed to handle the typical case in which pretrial release is treated as a constitutional right under arti-ele I, section 14, of the Florida Constitution and are not entirely compatible with the requirements under Arthur for cases in which the charge is a capital offense or an offense for which life imprisonment is the penalty. We comment, however, on an unpreserved procedural error that appears to have contributed to the confusion in the circuit court’s announced decision.

Because the State did not file a motion to detain Mr. Reeves pursuant to rule 3.132, Mr. Reeves filed his motion seeking release on reasonable bail. Typically, the party who files a motion has the burden of both proof and persuasion as to the relief requested in the motion. Thus, without objection, the circuit court required Mr. Reeves to present his witnesses first at the hearing on the motion and also required Mr. Reeves to argue the merits of his motion first. But under the holding in Arthur, 390 So.2d at 720, it was the State that had the initial burden of proof and persuasion to establish its right to deprive the defendant of pretrial release under the exception in the first sentence of article I, section 14. Thus, the State should have commenced the evidence at this hearing. Mr. Reeves’s evidence as to conditions and terms of pretrial release should not have occurred until the circuit court first determined whether he did or did not have a right to pretrial release.

Although the circuit court confused the order of events at this hearing, the State repeatedly recognized that it had the burden of proof at the hearing. It also presented extensive evidence at the hearing. We are convinced that the circuit court applied the correct burden of proof and persuasion at this hearing.

II. WHETHER THE STATE MET ITS BURDEN IS NOT AN ISSUE WE NEED TO REACH

Mr. Reeves argues that the circuit court erred in determining that the State met its high burden on the issue of whether he had no right to pretrial release under any terms and conditions. As this court recently explained in Preston, we continue to require the State in this context to meet the burden described in Russell, 71 So. at 27. In this case, there really is no dispute that Chad Oulson is dead and that his death is the result of Mr. Reeves’s shooting him with a handgun. The more difficult factual questions for the circuit court at the bond hearing were whether Mr. Reeves acted in self-defense and whether the criminal intent associated with this death was the type of intent necessary for second-degree murder or the type of intent associated with the offense of manslaughter. Manslaughter is an offense for which article I, section 14, authorizes consideration of pretrial release as a matter of right.

The circuit court required the State to present extensive testimony on these issues. This is undoubtedly one of the most thorough hearings on bond that this court has ever reviewed. Whether the State met its burden on the issue of guilt for second-degree murder as compared to manslaughter is, as recognized by the circuit court, a close question. We conclude that there is no reason for this court to reach this issue at this time. If the circuit court grants pretrial release under the limited relief that we provide in this decision, then it will make no difference whether the release was a matter of right or a matter of discretion. If we have misjudged the circuit court’s reasoning and it actually intended to make a discretionary decision to deny release despite Mr. Reeves’s evidence, it will presumably deny release again when it receives this decision. At that point, and only at that point, would this court need to resolve this issue.

III. DISCRETIONARY RELEASE

In this case, the defendant presented exceptionally strong evidence in support of his request for pretrial release. He presented several character witnesses whose testimony went largely unchallenged by the State. He is an older defendant with no prior record. He and his wife have been married forty-six years and have several generations of relatives in the community. He cares for a mother who is more than ninety years of age. Prior to this event, he had a long and distinguished career as a police officer and as director of security for a large local business. There is no evidence of drug or alcohol issues.

In its written order, the circuit court found that Mr. Reeves possesses extensive ties to the community and further found, “[wjithout hesitation ..., based upon this testimony and the exhibits that the Defendant is not a flight risk.” The court concluded that it would have “few concerns” that he would be a danger to society if released pretrial.

The circuit court explained in the written order the terms and conditions of pretrial release it would have found appropriate “if the State had not met the burden for pretrial detention.”

[TJhe bond would have been set at $150,000 with a condition that the Defendant remain at his residence with the exception of attending religious services, for medical treatment and the grocery store. The Defendant would not be allowed to have possession of a firearm and all of his firearms would be surrendered either to the Pasco Sheriff or another person acceptable to the Court after a hearing. The Defendant would wear the standard pretrial ankle monitor for GPS tracking of his location through one of the approved vendors.

Under article I, section 14, a person charged with an offense for which pretrial release is a right may nevertheless be denied release “[i]f no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process.” The decision in Arthur effectively reverses the burden for these factors in a case involving a capital felony or an offense for which life imprisonment is the penalty. Thus, even if the State meets its burden under Russell, the circuit court may exercise discretion to grant pretrial release if the defendant can prove that conditions of release can effectively protect the public from the risk of physical harm, assure his presence at trial, and assure the integrity of the judicial process.

In this case, the court clearly found that Mr. Reeves established that he was not a flight risk. No one seriously argues that detention is needed to assure the integrity of the judicial process. Indeed, Mr. Reeves was allowed to attend the bond hearing itself in normal clothing and without handcuffs. Given the singular event at the theater, one can have some concern for public safety, which is why the circuit court would essentially require house arrest without firearms and with an ankle monitor for GPS tracking.

As we explained at the beginning of this opinion, it appears that the circuit court denied release merely because it believed it had no discretion to do otherwise if the State met its burden. All of the usual factors that would be used to authorize pretrial release in this context were clearly established by Mr. Reeves at this hearing. The record suggests no special circumstances or other factors that would justify a reasoned, discretionary decision to deny pretrial release. But we cannot rule out the possibility that the circuit court had a reasoned, discretionary basis not to grant release.

Given the extensive evidence and the full consideration of the terms and conditions for release at the recent hearing, we see no reason to compel the circuit court to conduct another hearing. It is authorized to grant release on its own announced conditions or to provide an order explaining its discretionary decision to deny release. If the circuit court determines that circumstances warrant additional testimony before finalizing any terms and conditions of release, it is not barred by this opinion from conducting that hearing.

Petition granted to the extent explained within this opinion.

NORTHCUTT and VILLANTI, JJ., Concur.

      . This petition for writ of habeas corpus is the appropriate means to challenge the denial of pretrial release. See Greenwood v. State, 51 So.3d 1278, 1279 (Fla. 2d DCA 2011).


author: LaROSE, Judge.

text:
    J.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4145.
    District Court of Appeal of Florida, Second District.
    July 11, 2014.
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

J.R. appeals an order withholding adjudication and imposing probation after he pleaded guilty to burglary of an unoccupied dwelling and third-degree grand theft. See §§ 810.02(3)(b), 812.014(2)(c)(1), Fla. Stat. (2012). The trial court erred in ordering restitution for a veterinary bill. Consequently, we reverse in part.

The burglary victim testified at the restitution hearing that when she arrived home on the day of the burglary, her dog was injured. The veterinarian bill was $250. The trial court included this amount as restitution. The veterinary bill was not mentioned in the petition or in the factual basis the State set forth in the plea colloquy. See Malarkey v. State, 975 So.2d 538, 540-11 (Fla. 2d DCA 2008). The State properly concedes error on this point.

J.R. also contends that the total restitution amount of $4082 was not supported by competent substantial evidence; the victim testified as to only the purchase prices of the stolen items. The extent of the victim’s testimony is not fatal. See H.L.C. v. State, 950 So.2d 1268, 1269 (Fla. 5th DCA 2007) (holding testimony as to purchase dates and prices, condition at time of theft, and replacement values supported finding of fair market value); Bakos v. State, 698 So.2d 943, 944 (Fla. 4th DCA 1997) (affirming restitution award in part even though victim testified only to purchase price and not use, condition, or amount of depreciation). We note that the victim testified as to the condition of the stolen items. We affirm on this issue.

Finally, J.R. argues that the trial court erred in failing to address how much J.R. could reasonably be expected to earn to pay restitution. See § 985.437(2), Fla. Stat. (2013); M.W.G. v. State, 945 So.2d 597, 601 (Fla. 2d DCA 2006). We must affirm on this issue because J.R. failed to preserve it. We affirm without prejudice to J.R.’s right to petition for habeas corpus relief in the trial court. See J.E.P. v. State, 130 So.3d 764, 765 (Fla. 2d DCA 2014).

Affirmed in part and reversed in part.

ALTENBERND and KELLY, JJ., Concur.


author: CRENSHAW, Judge.

text:
    Lawrence E. EGLE, Appellant, v. Susan KRINSK, Appellee.
    No. 2D13-1506.
    District Court of Appeal of Florida, Second District.
    July 11, 2014.
    Jamie L. Wallace of Icard, Merrill, Cui-jis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellant.
    Larry R. Chulock of Larry R. Chulock, P.A., Bradenton, for Appellee.
   CRENSHAW, Judge.

Lawrence Egle timely appeals the final judgment of dissolution of his marriage to Susan Krinsk. We reverse solely for the circuit court to correct the period of the durational alimony award to reflect the length of the marriage and affirm as to the remaining issues.

The circuit court awarded durational alimony of $1000 per month for a period of fifteen years. However, the court intended to award alimony for a period representing the length of the marriage. The marriage in this case lasted just under fourteen years and ten months — not fifteen years. The parties agree that this was error. See § 61.08(7), Fla. Stat. (2011) (“[T]he length of an award of dura-tional alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.”) (emphasis added); Cooley v. Cooley, 106 So.3d 17, 17 (Fla. 2d DCA 2013). Accordingly, we reverse and remand for the circuit court to correct the period of the durational alimony award to reflect the length of the marriage.

Affirmed in part, reversed in part with directions.

KELLY and BLACK, JJ., Concur.


author: VAN NORTWICK, J.

text:
    D.C.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5422.
    District Court of Appeal of Florida, First District.
    July 14, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

D.C.C. was charged to be a delinquent for his participation in the robbery of a bicycle. Because the State did not prove the use of force was motivated for the purpose of obtaining the bicycle, we reverse.

D.C.C. and two other middle schoolers (C.B.B. and Z.M.B.), were charged with robbery of the bicycle of fellow student, O.A. The three boys were tried together. This court has reversed the final disposition orders of D.C.C.’s co-defendants because the State did not adduce evidence showing the force used against the victim was in furtherance of a plan to obtain the victim’s bicycle. C.B.B. v. State, 135 So.3d 1139 (Fla. 1st DCA 2014), and Z.M.B. v. State, 139 So.3d 424 (Fla. 1st DCA 2014). This failure of proof also requires reversal in the case at bar.

Accordingly, we REVERSE the final disposition order entered against D.C.C. and REMAND for entry of a judgment of dismissal.

CLARK, J., concurs, and ROBERTS, J., concurs in result only.


author: PER CURIAM.

text:
    FLORIDA FARM BUREAU GENERAL INSURANCE COMPANY, Appellant, v. Steven BARTH, Appellee.
    No. 1D14-2046.
    District Court of Appeal of Florida, First District.
    July 14, 2014.
    Bruce W. Robinson and John J. Joyce, of Robinson, Kennon & Kendron, P.A., Lake City, for Appellant.
    P. Scott Russell, Jacksonville, for Appel-lee.
   PER CURIAM.

Upon consideration of appellant’s response, the Court has determined that it lacks jurisdiction to review the order on appeal. See Workmen’s Auto Ins. Co. v. Franz, 24 So.3d 638, 640 (Fla. 2d DCA 2009) (concluding that order awarding summary judgment to insureds on issue of entitlement to stacked uninsured motorist coverage was not a partial final judgment where related claim for uninsured motorist benefits remained pending). Accordingly, appellee’s motion to dismiss, filed on May 12, 2014, is granted and the appeal is dismissed for lack of jurisdiction.

LEWIS, C. J., WOLF and WETHERELL, JJ., concur.


text:
    Nora BLOXOM-WILLIAMS, Appellant, v. FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF SATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Appellee.
    No. 1D13-1748.
    District Court of Appeal of Florida, First District.
    July 16, 2014.

      Nora Bloxom Williams, pro se, Appellant.
    Daniel M. Sims, AFSCME Council 79, Winter Park, Stephen Meek, General Counsel, and William D. Salmon, Staff Attorney, Public Employees Relations Commission, Tallahassee, for Appellee.
   PER CURIAM.

Nora Williams appeals the final order of the Public Employees Relations Commission accepting and adopting the recommended order of the hearing officer after an administrative hearing pursuant to section 120.57, Florida Statutes. §§ 447.501, 447.503, Fla. Stat. This court has jurisdiction to review the final order. § 447.504, Fla. Stat. Because the appellant has failed to establish any ground under section 120.68(7), Florida Statutes, upon which this court might set aside the agency’s final order, the Commission’s final order is AFFIRMED.

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.


text:
    Corey Landon McCOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2418.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    W. Timothy Weekley, Shalimar, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. This dismissal is without prejudice to appellant’s right to file a petition for belated appeal. See Fla. R. App. P. 9.141(c).

LEWIS, C. J., WOLF and WETHERELL, JJ., concur.


text:
    Sawand PALMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0448.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Sawand Palmer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    EXTERIOR WALLS, INC.; Carlos A. Moreno; And Antonio L. Caravia, a/k/a, Antonio Caravia, a/k/a, Tony Caravia, Petitioners, v. CONSTRUCTION MATERIALS, INC.; Walbridge Aldinger Company, Respondents.
    No. 1D14-1414.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Shawn M. Heath, B.C.S., of Gray Robinson, P.A., Tallahassee, for Petitioners.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


author: PER CURIAM. JOHNSON, Chief Justice, WEIMER, J.,

text:
    STATE of Louisiana in the Interest of E.C.
    No. 2013-CK-2483.
    Supreme Court of Louisiana.
    June 13, 2014.
   PER CURIAM.

1(Writ granted. The defendant is a juvenile who was charged with two serious crimes by petition of delinquency: second degree murder of Wendy Byrnes, as a principal, and armed robbery of Dan Rous-seve. The State filed a motion to transfer the case to Orleans Parish Criminal District Court due to the severity of the crimes. The State subsequently withdrew that motion and entered into a plea agreement with the defendant. The defendant pleaded nolo contendere to both charges on March 30, 2011, at which time the plea agreement took effect.

The relevant provisions of the plea agreement stated:

2. GED Efforts. The Juvenile further agrees to obtain a General Equivalency Diploma (“GED”) or, alternatively, make good faith efforts toward obtaining a GED by actively participating in GED coursework, if it is offered and available upon his confinement at the juvenile facility to which he is assigned and confined (the “Facility”). To the extent that the Facility does not offer a GED program or does not have GED coursework available, the Juvenile must make good faith efforts by actively participating in academic coursework, if it is offered and available at the Facility upon his confinement.
3. Vo-Tech Efforts. The Juvenile further agrees to obtain a trade or skill through a trade/vocational program offered and available at the Facility upon his confinement or, alternatively, to make good faith efforts by actively participating in a trade/vocational program, if one is offered and available at the Facility upon his confinement.
4. Good Faith Defined. Good faith shall be established by reviewing Juvenile’s attendance, participation, teacher evaluations, or other relevant measures of proficiency. It is recommended that upon his | gconfinement at the Facility, the Juvenile be administered the Test for Adult Basic Education (“TABE”) to establish a baseline of the Juvenile’s current level of academic proficiency.
5. The state acknowledges that the Juvenile has been evaluated by both psychiatrist and psychologist and it has been determined that he meets the criteria for Borderline Intellectual Functioning. Additionally, it was determined that he has learning disability, specifically, a Reading Disorder, and a Disorder of Written Expression. Therefore, the Juvenile is not being required to obtain a GED or High School Diploma or even complete a Vo-Tech Program, but to actively participate to the best of his ability in these programs.

On October 11, 2011, defendant filed a report of compliance and motion to set aside plea and dismissal of all charges. The state filed its response, alleging that defendant had not complied -with paragraphs two and three of the plea agreement. After hearings on November 18, 2011, and December 6, 2011, the juvenile court ruled that six months was not a sufficient time period in which to determine defendant’s level of compliance with the plea agreement “that has a life span of four years and where the spirit of the [a]greement is to prepare [defendant] for success upon his release, or attempt to do so,” and reset the matter for a hearing in May 2012.

On February 10, 2012, the court issued its judgment on the November and December 2011 sentence review, and ordered that (1) the juvenile facility provide defendant with a tutor for a minimum of three times per week for a minimum of one hour per day; (2) defendant be placed in the Culinary Arts Program upon the next opening in the program; and (3) defendant undergo additional psychological evaluations and academic testing.

On May 2, 2012, defendant filed a supplemental monitoring report of compliance and motion to withdraw the plea and dismiss all charges. On May 9, 2012, the state filed its response and objection to defendant’s motion, again reasserting that defendant had not satisfied the educational requirements of the agreement. The court conducted additional hearings on May 10, 23, 25, 31, and July |319, 2012. On October 12, 2012, after considering the nearly 900 pages of testimony and voluminous exhibits, the juvenile court ruled that defendant had complied with the substantive portions of the plea agreement and granted the motion to set aside the adjudication. It released defendant and placed him under the supervision of an electronic monitoring device.

In its written reasons, the court specifically cited several witnesses and exhibits to support its conclusion:

- Dr. Kristen Luscher’s testimony that, due to his learning disabilities, defendant will never perform academically higher than a seventh grade level and likely would be unable to earn a GED. The juvenile court noted that defendant’s most recent TABE scores were consistent with her conclusions and emphasized that it is “unlikely that he will achieve academic functioning above the seventh grade level.”
- Dr. Joy Terrell’s testimony echoing the conclusions of Dr. Luscher. Dr. Terrell testified that defendant’s ability to receive information is equivalent to that of an eleven-year-old and that his ability to express himself is equivalent to that of an eight-year-old.
- Evidence reflecting that the Culinary Arts Program is the only vocational program offered at the Bridge City Center and that there was never an opening in the program while defendant was detained there. Therefore, it determined that this condition of the plea agreement never became operative.
- Emphasizing that the plea agreement defines “good faith” in terms of “active participation,” the juvenile court calculated that defendant attended 84% of his tutoring sessions and that his absences were due to court attendance, several physical ailments, such as pink eye, and a disciplinary matter.
- Testimony by staff officials that, in general, defendant participated in class and was cooperative. The court explained that “[tjhough there were specific individual comments that were negative regarding [defendant’s] attitude and participation, taken as a whole, the majority of the comments were positive.”

The Fourth Circuit affirmed the ruling of the juvenile court. State in the 4Interest of E.C., 12-1744 (La.App. 4 Cir. 9/18/13), unpub’d. It determined that the plea agreement was a valid contract and the record contained overwhelming factual support for the lower court’s conclusion that defendant complied with the terms of the agreement. Rather than enumerating its own reasons for judgment, the appellate court merely quoted the lengthy reasons given by the juvenile court in its ruling. The state filed a writ application which we now consider.

DISCUSSION

As a general matter, in determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to rules of contract law, although a defendant’s constitutional right to fairness may be broader than his or her rights under the law of contract. See State v. Louis, 94-0761 (La.11/30/94), 645 So.2d 1144, 1148-49 (court “refer[s] first to the law of contracts for application by analogy,” but founds its analysis on “considerations of constitutional fairness”) (citing Ricketts v. Adamson, 483 U.S. 1, 16, 107 S.Ct. 2680, 2689, 97 L.Ed.2d 1 (1987)); State v. Lewis, 539 So.2d 1199, 1204-05 (La.1989) (commercial contract law only a point of departure in construing a plea bargain agreement); State v. Nall, 379 So.2d 731, 734 (La.1980) (“[Because] the constitutional right of a person accused of a crime is greater than that defined by the law of contract ... constitutional decisions should not be made to turn in favor of the state ... simply because of the niceties of contract law.”). The party demanding specific performance of a contract has the burden of proving its existence. Louis, 645 So.2d at 1149.

In this case, there was a valid plea agreement. The State offered the benefit of the potential dismissal of the serious charges pending against defendant, and defendant agreed to the conditions placed upon him in the plea agreement. It is undisputed that the Bridge City facility offers only one vo-tech program, which is | .¡focused on culinary arts. Chef Ronald Sonnier, the instructor of the program, testified about its logistics and explained that there are two classes during the day, with a morning session for students with a GED and an afternoon session for students working towards that degree, those students classified as “Basic Skill One,” which applies to juveniles who have opted not to pursue a high school diploma, or students whose academic level meets a certain standard. He further testified that students usually apply and submit their application to Trenisha Stanislas, an instructor at the high school. The chef noted that he typically takes on, at most, six students in one cycle. At the time of the December 2011 hearing, Chef Sonnier stated that there were 26 students on the waiting list for the program, but that two spaces in the program had become available. Finally, he confirmed that a court could order a juvenile into the program and that bypasses any approval by facility administration. Defense counsel clarified that statement with Sonnier:

Q. So, there’s six students per class, like you just said, and you said there are 26 students, currently, on the waiting list?
A: Right.
Q: And if, in fact, there’s an opening and the [cjourt orders it, he would be placed on that waiting list to be put into the class?
A: Right, absolutely. That’s happened before.
Q: And if, in fact, he gets into the class, you said earlier that the two classes that are offered during the day, he would be part of that class?
A: Right, the afternoon.
Q: So, in order to be a part of the program, would he have to miss his academic instruction to be in that class in order to take part in the vocational training?
A. It depends on what his schedule is.

The juvenile court abused its discretion in holding that the defendant complied with the terms of his plea agreement where no good faith effort was made on the part |fiof the defendant to obtain a vocational skill. The above testimony was given on December 6, 2011, which gave defendant eleven months to follow up and enforce the ruling of the trial court to be put into the culinary program but he failed to do so. While defendant contends that he had no realistic opportunity to participate in the program due to not meeting the general requirements to participate, this is obviated by the fact that the court can, and did, order defendant into the program. There is no indication that defendant had even placed his name on the waiting list for the Culinary Arts Program. The fact that defendant would have to wait to enter the program does not in any way support the contention that defendant had no realistic opportunity to participate and furthermore does not render the program unavailable to defendant. Based on the fact that openings were available in the program and at no point did defendant ever follow up and join the program, this is no showing that he has actively participated to the best of his ability in order to obtain a vocational skill. Further, to allow defendant to re-enter society at this point would frustrate the spirit of the plea agreement, which was to provide a means to deter defendant from a life of crime and to provide him with some life skills. Significant to this determination is the fact that defendant received the benefit of a reduced sentence and had the state elected to transfer him to criminal district court, he would have faced incarceration until his thirty-first birthday.

DECREE

For the above reasons, we reverse the judgments of the lower courts and order defendant be remanded to the Bridge City Center facility to comply with paragraph (3) of the plea agreement, specifically, that he be placed in the Culinary Arts Program upon the next opening in the program.

WRIT GRANTED; REVERSED AND RENDERED.

JOHNSON, C.J., dissents and assigns reasons.

WEIMER, J., dissents and assigns reasons.

HUGHES, J., dissents for the reasons assigned by JOHNSON, C.J. and WEIMER, J.

JOHNSON, Chief Justice,

Dissents and assigns reasons.

hit is unconscionable to remand this defendant to secure confinement in a juvenile facility to participate in a culinary arts program, two years after his release, when the opportunity to participate was never available to him. In my view, the majority has erred in reversing the lower courts, since the factual findings made by the juvenile court are not only reasonable, but are also, as the Court of Appeal noted, overwhelmingly supported by the record in this case.

The facts of this case are critical to understanding the implications of this court’s proposed action. In 2009, at the age of fourteen, the defendant was one of three individuals charged with second-degree murder and armed robbery. As the majority correctly points out, the State originally filed a motion to transfer the defendant’s case to Orleans Parish Criminal District Court due to the severity of the crimes. However, for reasons we are not able to discern, the State withdrew the motion and, after lengthy negotiations, the State and the defense reached a plea agreement. Notably, the record contains no colloquy detailing the extent of the defendant’s involvement in these crimes. The presiding juvenile court judge noted there was no evidence to suggest this particular defendant “possessed, discharged, or brandished a weapon, or that he made a demand or took any action towards the victims.” In re E.C., 2009-026-05 DQ-F, p. 1, Juvenile Court of New Orleans, Per Curiam of 10/12/12, Doherty, J.

2In fact, according to the investigating detective, the two other defendants charged with these crimes, confessed to their participation. Defendant Reggie Douglas confessed to being the shooter, and defendant Drey Lewis confessed to being present with Reggie Douglas at the time of the crimes. Further, neither of these defendants implicated E.C. in these crimes. Witnesses also stated that two perpetrators were involved in the commission of the crimes, not three.

On March 30, 2011, in exchange for a nolo contendere plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.E.2d 162 (1970), the State agreed not to file additional charges against the defendant. The State also agreed to dismiss the petition and expunge the arrest upon compliance with the plea agreement. The juvenile court subsequently ordered the defendant into custody until his twenty-first birthday, with credit for time served, for the two years he was already detained. The Office of Juvenile Justice placed the defendant in the Bridge City Correctional Center for Youth (hereinafter “BCCY”) in April of 2011.

On October 11, 2011, the defense filed a Report of Compliance and Motion to Set Aside the Plea. The State filed a response, alleging the defendant had not complied with paragraphs two (2) and three (3) of the plea agreement, referring specifically to provisions for the defendant to put forth a “good faith effort” to obtain a GED and a vocational skill. The juvenile court concluded that six months was not a sufficient amount of time to determine compliance with the plea agreement. Therefore, the Court reset the matter for further hearings on compliance in May of 2012.

During the second round of compliance hearings, the court heard testimony from eight witnesses regarding the progress of the defendant. Approximately 900 pages of testimony on the defendant’s compliance with the terms of the plea agreement were accumulated. The juvenile court ultimately found the defendant | shad, in fact, made a good faith effort to comply. However, the vocational skills program was not available to the defendant during his confinement.

Notably, the majority does not find the defendant failed to comply with paragraph two (2) of the plea agreement, which required the defendant’s “good faith efforts” to obtain a General Equivalency Diploma (GED). According to several witnesses, including teachers and counselors who worked closely with the defendant, he was focused on his coursework and put forth his best efforts to complete assignments, despite significant learning disabilities. The majority finds instead that the defendant did not comply with the terms of paragraph three (3) of the plea agreement, with respect to his efforts to obtain a vocational skill. Paragraph three (3) provides:

3. Vo-Tech Efforts. The Juvenile further agrees to obtain a trade or skill through a trade/vocations program offered and available at the Facility upon his confinement or, alternatively, to make good faith efforts by actively participating in a trade/vocational program, if one is offered and available at the facility upon his confinement. (Emphasis added.)

Initially, it is important to point out that the plain language in this section of the plea agreement clearly contains a clause which renders its requirements entirely conditioned upon whether or not a vocational program was actually offered and available to the defendant during his confinement. Based upon a thorough review of the testimony given below, the juvenile court correctly found, as a fact, the vocational skills program was not available to the defendant, therefore rendering paragraph three (3) of the plea agreement inoperable.

The only vocational skills program offered at Bridge City Center for Youth (BCCY) while the defendant was in custody was a culinary arts program headed by Chef Ronald Sonnier. Only six students are admitted to the program at a time and, at the time of the hearings in the case, there were twenty-six students on the waiting list for admission to the program. Because the defendant was working 14towards obtaining a General Equivalency Diploma (GED) rather than a high school diploma, he would be required to enter the “Basic Skill One” section of the culinary arts program. The “Basic Skill One” program was offered in the afternoon during a time that conflicted with the defendant’s academic course schedule. Paragraph two (2) of the plea agreement provides that the defendant must make “good faith efforts” to obtain a GED. The culinary arts program schedule therefore conflicted with the defendant’s efforts to obtain a GED through no fault of his own. It was not feasible for the defendant to simultaneously participate in his academic courses and the culinary arts program. Furthermore, Chef Sonnier testified that according to Ms. Trenisha Stanislas, a teacher at BCCY, the defendant did not even meet the minimum academic standards for admission into the culinary arts program, despite his academic progress at the time in question. Chef Sonnier was questioned regarding E.C.’s possibility of participation in the program:

By defense counsel:
Q. Do you have any knowledge of what [E.C.]’s current academic level is?
A. Well, his case manager had contacted me to see about getting him in, and I contacted the Guidance Counselor their [sic] at Bridge City, Ms. Stanislas, and she told me that, at the present time, his academic level was not up to par for him to be able to be put into Culinary Arts.
On cross:
Q. So, you were contacted by [E.C.]’s case manager regarding his eligibility for your program, correct?
A. Right, Ms. Ade.
Q. And so, you, then had to bounce it to the Guidance Counselor, Ms. Stanis-las, to see if he was academically eligible?
A. Right, because she places the kids. Whenever I have an opening come up in Culinary Arts, she places the kids in there.
Q. And, according to Ms. Stanislas, he was not academically eligible for the program?
| sA. Right, at that time.
Q. Chef Sonnier, do you know, when, approximately, that was that the conversation, was with Ms. Stanislas?
A. About 30 days ago, it’s been recent.
By the Court:
I have one question for you. You stated that Ms. Stanislas is the one who actually places the kids in the program when you have a vacancy.
The Witness:
Right
By defense counsel:
Q. If, in fact, if the Court does order that [E.C.] is placed into your—
A. That has been the norm before.
Q. And if, in fact, the Court—
A. If the position is open—
The Court
You mean if you have space in your program?
The Witness
Right. Because I only take six students in each class because of all the knives and tools and stuff they handle

This testimony undeniably demonstrates that the culinary arts program was not available to the defendant. Nonetheless, the majority concludes no “good faith effort” was made on the part of the defendant to obtain a vocational skill, and thus the juvenile court abused its discretion in finding that the defendant complied with the terms of the plea agreement. It is well established that the standard of review of an appellate court, in findings of fact, is a manifest error standard. An appellate court must find from the record that a reasonable factual basis does not exist for a trial court’s findings, and the record must establish that finding is clearly wrong, or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). |fiThis juvenile court found, as a matter of fact, that the culinary arts program was not available to the defendant. In turn, the court of appeal found no error in this determination. Remarkably, a majority of this court has reached a different conclusion, apparently based on testimony that the twenty-six person waiting list could be circumvented by a Court Order, and that two spaces actually opened up in the program, but the defendant failed to take advantage of them. This conclusion is misinformed.

In fact, there was a Court Order handed down by the juvenile court, ordering that the defendant be placed in the culinary arts program, upon the “immediate next opening.” The majority cites the testimony of Chef Sonnier where he states it was his understanding that a Court Order would only have the effect of placing the defendant’s name on the waiting list, not actually enroll him in the culinary arts program. Therefore, the only reasonable conclusion we can draw, in light of the lengthy waiting list, is that a space in the culinary arts program had not become available.

According to the record, the defendant applied for and was accepted to culinary arts programs at Liberty’s Kitchen and Café Reconcile, pending his release from BCCY. We have no information regarding whether the defendant has attended either program since his release from secure custody in October of 2012. The court’s order sends the defendant back into custody indefinitely, or at least until his twenty-first birthday. This action not only modifies the actual terms of the plea agreement, but also renders those terms, which provided for the possibility of an early release, meaningless.

The action of the majority undermines the very purpose of the plea agreement. Upon entering the plea, E.C. relinquished a fundamental constitutional right to a trial. State v. Louis, 94-0761, p. 7 (La.11/30/94), 645 So.2d 1144, 1149-50. Moreover, by entering a nolo contedere plea under Alford, supra, he 7maintained his innocence of the crimes with which he was charged.

For the foregoing reasons, I respectfully dissent.

WEIMER, J.,

dissenting.

liThe majority essentially holds that the defendant received the benefit of a plea bargain, but without the defendant fulfilling his end of the bargain. Because I find the majority has given insufficient deference to the juvenile court’s findings and has negated the early release provisions of the plea bargain, I respectfully dissent.

The enforcement of a plea bargain, the majority correctly acknowledges, requires a court to “refer first to the law of contracts,” but a “criminal defendant’s constitutional right to fairness may be broader than his or her rights under contract laws.” State v. Louis, 94-0761 (La.11/30/94), 645 So.2d 1144, 1148-49. The majority overlooks, however, facets of this case that-as matters of fundamental fairness-compel the conclusion that the defendant must be released from any further remedial obligations as a condition of his plea agreement.

In the ordinary case, the state can demand specific performance of a plea agreement, and the state has the burden of proving the obligations the state seeks to have the defendant perform. Id. at 1149. In the ordinary case, an “obligation may be dependent upon an uncertain event.” Id. However, the lines that a court must draw, even in the ordinary case, in determining whether the defendant has complied with the plea agreement, must comport with constitutional standards. In drawing those lines, “commercial contract law can do no more than to serve as an analogy or point 12of departure, since ‘plea agreements are constitutional contracts.’ ” Id. at 1148, quoting Ricketts v. Adamson, 483 U.S. 1, 16, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). Such are the general rules for enforcing plea agreements in the ordinary case, but this is not the ordinary case.

As part of the plea agreement, the defendant here did not plead guilty. Instead, the defendant pled nolo contendere to offenses for which he was arrested when he was 14 years old. The plea agreement called for the defendant to be incarcerated until his twenty-first birthday, but also allowed for the possibility of early release. Paragraph three of the plea agreement conditioned early release on the defendant’s good faith efforts to participate in General Equivalency Diploma (“GED”) course-work and to “actively participate] in a trade/vocational program, if one is offered.” (Emphasis added.)

These conditions from the plea agreement are discussed by the majority, but other aspects of the plea agreement, while recounted by the majority, should not be overlooked when considering whether the defendant has satisfied the agreement. Specifically, the state recognized in the following provision of the plea agreement that the defendant had serious cognitive impairments at the time the plea agreement was prepared:

|s5. The state acknowledges that the Juvenile has been evaluated by both psychiatrist and psychologist and it has been determined that he meets the criteria for Borderline Intellectual Functioning. Additionally, it was determined that he has learning disability, specifically, a Reading Disorder, and a Disorder of Written Expression. Therefore, the Juvenile is not being required to obtain a GED or High School Diploma or even complete a Vo-Tech Program, but to actively participate to the best of his ability in these programs. [Emphasis added.]

The effect of the majority’s order is that the cognitively-impaired defendant is required to “participate” in a cooking program, but because of the quoted language from the plea agreement, he cannot be required to “complete” that cooking program. Due process obviously requires the defendant be given a meaningful opportunity to participate in the vo-tech component of the plea agreement, if one is offered. In this matter, the vo-tech component was not adequately offered to this juvenile.

Previously, this court recognized it cannot modify the terms of the plea agreement, because “[o]nce there is an offer and acceptance, the agreement is subject to specific performance.” Louis, 94-0761 at 10, 645 So.2d at 1149, citing La. C.C. art. 1986. Now, however, this court has gone well past modifying a plea agreement and has essentially re-written the defendant’s plea agreement to include a condition that the juvenile participate in a program never offered to him.

The record before this court shows that the cooking program is the sole vo-tech program offered at the defendant’s confinement facility. The juvenile court, in the course of considering what is now over 900 pages of testimony and exhibits (generated during seven hearings and one ruling, spanning a one-year period of time), found that “there was never an opening in the space-limited program while the youth has been at the facility.” In re E.C., 2009-026-05 DQ F, p. 5, Juvenile Court of New Orleans, Per Curiam of 10/12/12, Doherty, J. The majority of this court reaches a different conclusion, based solely on the program instructor’s remark that it might be ^possible to circumvent a 26-person waiting list in the event there was a court order to do so. Although the majority of this court now supplies such an order, this action does not erase the fact that there never was an order to circumvent the waiting list when the defendant moved the juvenile court to have his early release conditions evaluated. Moreover, the majority recounts — but apparently overlooks — the program instructor’s testimony that the cooking classes might conflict with the very same GED classes in which the majority accepts the defendant successfully participated.

The juvenile court gave this matter an impressive degree of consideration. After hearing testimony from experts in the cognitive sciences, who assessed the defendant’s abilities, the juvenile court determined “it is improbable that the youth will be able to obtain his GED.” The majority of this court, on a cold record, holds this same juvenile to the standards of diligence of an adult inasmuch as the majority penalizes the defendant for not putting his name on a waiting list that already contained the names of 26 other juveniles. The majority of this court orders that the defendant be placed in the cooking program “upon the next opening.” State of Louisiana in the Interest of E.C., 13-2483, p. 6 (La.6/13/14), 141 So.3d 785, 2014 WL 2694191. Such an order only underscores the fact that the defendant should not be penalized for failing to place his name on the waiting list. After the defendant’s counsel submitted a Report of Compliance, the juvenile court issued this order in the fall of 2011: “[t]he [juvenile] Court ordered the Office of Juvenile Justice to enroll and admit the youth to that program at the immediate next opening in the program.” (In re E.C. at p. 6.) 5Apparently, the judge presiding in the juvenile court could not effect the defendant’s enrollment in the cooking program; it follows that the cognitively-impaired juvenile defendant should not be penalized for failing to undertake the vain and useless act of placing himself on the program’s waiting list.

At the time of this writing, the defendant is over 19-and-a-half years old. Even absent early release, he must be released from confinement in approximately one- and-a-half years. Yet this court now purports to force the defendant into a cooking program (if the defendant can even be placed into the program before his twenty-first birthday), despite the prosecutor’s recognition that the defendant may lack the cognitive ability to complete the cooking program. I suggest the juvenile court judge is much more versed in the programs offered by the juvenile justice system than is this court. Moreover, the majority’s analysis grants no deference to the juvenile court’s evaluation of the defendant’s cognitive impairments and the lack of available positions in the cooking program. The majority’s order frustrates any measure by which the defendant can gain the early release opportunities promised him in the plea agreement. Although it would behoove this juvenile to achieve as much education as possible, he should not remain incarcerated for reasons beyond his control. Due process demands otherwise. Thus, I respectfully dissent.

      . Various exhibits were filed under seal and reviewed as part of the record by the Fourth Circuit. On motion of the state, the sealed records were transferred to this Court for review in connection with the state’s pending writ application.

      . Transcript of Motion Hearing 3/9/10, State of Louisiana v. Reggie Douglas, Drey Lewis, 485-536, Orleans Criminal District Court, Willard, J.

      . The term "nolo contendere" essentially translates as “no contest.” See State v. Villarreal, 99-827, p. 4 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129. The plea of nolo contendere is distinct from a guilty plea. See La.C.Cr.P. art. 552 (describing plea of “nolo contendere" as one of four distinct pleas).
      Here, the defendant entered a nolo conten-dere plea to being a principal to the crimes. A principal may not be the person who “directly commit[s] the act constituting the offense.” La. R.S. 14:24. In addition to pleading nolo contendere, the defendant cast his plea as an Alford plea. A definition of "a 'best interest’ or Alford plea, which derives from the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), is one in which the defendant [has] pled guilty while maintaining his innocence.” State v. Stevenson, 45,371, pp. 4-5 (La.App. 2 Cir. 6/23/10), 41 So.3d 1273, 1276.
      After sentencing and the defendant’s later motion for release from confinement, the juvenile court observed the defendant's involvement as a principal in the crimes was minimal: "There were no charges brought that the youth possessed, discharged, or brandished a weapon, or that he made a demand or took any action towards the victims.” (In re E.C., 2009-026-05 DQ F, p. 1, Juvenile Court of New Orleans, Per Curiam of 10/12/12, Doherty, J.).

      . It should not be overlooked that the majority grants relief that the state never requested. Nowhere in the state's application has it sought an order placing the defendant into the detention center’s cooking program. This court’s order comes some two years after the taking of any evidence about the detention center, its programs, and the other offenders who may be eligible for the cooking program. Such an order may result in this juvenile hurdling others more worthy of a position in the program.