text:
    Judy Ann HAYNES, individually, and as trustee of the Judy Ann Haynes Revocable Living Trust, Appellant, v. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 1D12-2548.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2013.

      Hewett G. Woodward of Latham, Shuker, Eden & Beaudine, LLP, Orlando, for Appellant.
    Jason R. Urbanowicz of Rissman, Barrett, Hurt, Donahue & McLain, Orlando, for Appellee.
   PER CURIAM.

Appellant, Judy Ann Haynes, appeals the Final Judgment entered in favor of Appellee, Universal Property and Casualty Insurance Company, and raises two issues on appeal, only one of which merits discussion. Appellant argues that the trial court erred by granting Appellee’s motion for summary judgment. We agree and, therefore, reverse the Final Judgment.

Appellant insured her home through Ap-pellee. The insurance policy provided for replacement cost coverage for any direct physical loss, unless caused by an enumerated exception. The policy provided in relevant part:

3. Loss Settlement. Covered property losses are settled as follows:
b. Buildings under Coverage A or B at replacement cost without deduction for depreciation, subject to the following:
(1) If, at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, after application of deductible and without deduction for depreciation, but not more than the least of the following amounts:
(a) The limit of liability under this policy that applies to the building;
(b) The replacement cost of that part of the building damaged for like construction and use on the same premises; or
(c) The necessary amount actually spent to repair or replace the damaged building.

In April 2009, while the insurance policy was in full effect, a storm damaged the roof of Appellant’s home. Appellant also claimed damage to the interior of her home. That same month, Appellant hired Leakbusters LLC to make temporary roof repairs. Around late February or early March 2010, Appellant hired a roofer with Masimo Construction, Inc. (Masimo) to inspect her damages. The roofer determined that a full roof replacement was necessary.

Appellant submitted a claim to Appellee, who in turn hired an independent adjuster to inspect Appellant’s home. The adjuster estimated that repairs would cost $4,944.30. Appellee mailed to Appellant a letter with a Proof of Loss Form, dated March 30, 2010. In August 2010, a public insurance adjuster, retained by Appellant, submitted to Appellee a sworn statement in proof of loss and an estimate for $26,511.24 (minus the $1,000 deductible). The public insurance adjuster also requested that Appellee release the undisputed insurance benefits of $8,944.30 (after the deductible). Appellee rejected the public insurance adjuster’s estimate and released the undisputed benefits to Appellant. Ap-pellee’s rejection letter to the public insurance adjuster explained that the public insurance adjuster’s estimate was based on incorrect roof measurements, and advised him that the policy provided for the right to invoke appraisal or mediation, or he could submit additional information. In October 2010, the public insurance adjuster submitted an amended estimate for $34,751.61.

After Appellee failed to adjust the claim or make additional payments, Appellant filed suit for breach of contract against Appellee, seeking $29,807.31 in damages ($34,751.61 minus the $3,944.30 payment already made and the $1,000 deductible). Appellee filed its answer, denying that it breached the insurance contract; that the claimed damages are covered by the insurance policy; that $34,751.61 is the reasonable and necessary cost of repairing, restoring, and replacing the claimed damage; and that Appellant complied with her duties after the loss and with all the policy conditions.

Relevant to this appeal, Appellee filed a Motion for Summary Judgment, asserting, among other things, that it was undisputed that Appellant and Masimo signed a document for roof repair on March 5, 2010, but that the “specifications, property conditions, amount to be charged for repair and the scope of the work was not listed.” Thus, Appellee argued, Appellant failed to provide evidence of damages and breach of contract. After conducting a hearing, the trial court entered an order granting Ap-pellee’s motion for summary judgment. In its order, the trial court found that Appellant “has not submitted any evidence that she hired a general contractor, become contractually obligated to pay for such costs or spent any money for repairs or replacement.” Relying on Trinidad v. Florida Peninsula Insurance Company, 99 So.3d 502 (Fla. 3d DCA 2011), the court concluded in pertinent part as follows:

[ S]he has failed to become contractually obligated to repair the property and has not spent any money to repair the property and seeks recovery on an estimate from an individual who is not a licensed general contractor or roofing contractor. The evidence of record at this point is devoid of any evidence to support Plaintiffs damage claim.
As of the pretrial, there is no exhibit to support that Plaintiff has incurred any expenses or obligated herself to do so. Plaintiff has not requested additional time to present a contact [sic] obligating her to replace the roof at any cost and there is just no evidence currently of record to support a jury’s decision as to an amount of damages to replace or repair the roof.

Accordingly, the trial court granted Appel-lee’s motion for summary judgment. Subsequently, the trial court entered a Final Judgment effectuating its prior ruling.

Our standard of review of an order granting a motion for summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Itiat v. Foskey, 28 So.3d 140, 140 (Fla. 1st DCA 2010). A summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Volusia Cnty., 760 So.2d at 130. “[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought....” Itiat, 28 So.3d at 141 (citation omitted).

Section 627.7011(8), Florida Statutes (2008), provides that “[i]n the event of a loss for which a dwelling or personal property is insured on the basis of replacement costs, the insurer shall pay the replacement cost without reservation or holdback of any depreciation in value, whether or not the insured replaces or repairs the dwelling or property.” The Florida Supreme Court recently held that the insurer was not authorized to withhold replacement cost payment until the insured actually incurred the costs. Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433, 2013 WL 3333823, at *1 (Fla. July 3, 2013). The court examined the language of section 627.7011, Florida Statutes (2008), considered the legislative intent, and concluded that “it is immaterial in a replacement cost policy whether the damaged structure is replaced or repaired.” Id. at *5. “Instead, the statute requires the insurer in all cases to pay the replacement costs of the covered loss....” Id. at *6. The court also ruled that the parties’ insurance policy did not authorize the insurer to withhold payment until the insured actually incurred the expenses, and that a contrary interpretation of the policy would contravene section 627.7011. Id. at *8. Accordingly, the court quashed the Third District’s decision, which had affirmed the trial court’s entry of summary judgment in favor of the insurer. Id. at *2, *9.

In granting Appellee’s summary judgment motion, the trial court primarily relied on the fact that Appellant neither incurred expenses to repair or replace her roof, nor contracted to do so. The only authority the trial court cited in support of its determination was the Third District’s Trinidad opinion, which the Florida Supreme Court has since quashed. The applicable statutory and insurance policy provisions in this case are identical to those in Trinidad, and in both cases the insurer made a payment to the insured, but refused to pay the entire claim on the ground that the insured had not actually incurred expenses or contracted to repair or replace the damaged property. See Trinidad, 2013 WL 3333823, at *1. Because the Florida Supreme Court held that the insurer is not entitled to withhold replacement cost payments until the insured actually incurs the expenses or enters into a contract, the trial court erred by granting summary judgment in Appellee’s favor on the basis that Appellant did not incur expenses and did not enter into a contract to repair or replace her damaged property.

Accordingly, we REVERSE and REMAND for further proceedings.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Christopher L. BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4717.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2013.

      Richard J. D’Amico, Ormond Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant raises two points challenging his judgment of conviction and sentences for aggravated battery while actually possessing and discharging a firearm; trespass while possessing a firearm; shooting or throwing deadly missiles within a structure; and carrying a concealed firearm. We affirm appellant’s second point without comment. As to appellant’s first point, while we firmly endorse the preferred practice of protecting a defendant’s case from undue prejudice by avoiding his appearing before the jury wearing physical restraints, see Bryant v. State, 785 So.2d 422, 428 (Fla.2001), we are mindful that we must defer to the trial court’s ruling on a motion in limine absent a showing of an abuse of discretion. See Patrick v. State, 104 So.3d 1046, 1056 (Fla.2012). “Such discretion is limited by the rules of evidence, and 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.’ ” Id. (quoting McDuffie v. State, 970 So.2d 312, 326 (Fla.2007)). Having carefully reviewed the record with these principles in mind and taken into consideration the essential state interests specific to this case, see Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), we are persuaded that the trial court’s decision allowing the state to present to the jury both the audio and visual portions of appellant’s brief, videotaped police interview, in which appellant could be seen wearing a jail uniform, handcuffs, and leg chains, was not an abuse of the trial court’s discretion. The court’s decision was not based on a clearly erroneous view of the law or assessment of the evidence, but on a careful balance between the potential prejudice to appellant caused by the jury’s seeing him in restraints and the relevance of appellant’s inculpatory statements made to the detective, in conjunction with the jury’s ability to observe his demeanor while making those statements. Thus, we are persuaded that the record reflects the probative value of the evidence was not substantially outweighed by any unfair prejudice. Cf. Singleton v. State, 783 So.2d 970, 976 (Fla.2001) (holding “[t]he [jury’s] brief exposure to Singleton in a prison uniform while handcuffed does not outweigh the probative value of Singleton’s admission in the video that he killed the victim”); Alston v. State, 723 So.2d 148, 156-57 (Fla.1998) (concluding the trial court’s denial of Alston’s pretrial motion to exclude the videotape of his “ ‘walk-over’ ” from the police station to the jail was not an abuse of discretion where “the substance of what was said on the videotape concerned the crime for which appellant was charged and tended to prove a material fact; thus it was relevant evidence,” and the probative value of the evidence was not substantially outweighed by unfair prejudice).

AFFIRMED.

CLARK, ROWE, and SWANSON, JJ., concur.


author: SWANSON, J.

text:
    Alfredo RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2596.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2013.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Clark Hinshelwood, Assistant Attorney General, Tallahassee, for Appel-lee.
   SWANSON, J.

In this appeal from his conviction for sexual battery on a child less than twelve years of age, appellant claims the trial court erred by (1) failing to make the required findings of reliability before admitting the child victim’s out-of-court statements at trial, and (2) failing to conduct an adequate inquiry before determining appellant waived his right to self-representation. We affirm as to the second claim without discussion. For the reasons that follow, we also affirm as to the first claim due to a lack of preservation.

Based on our review of the record, there is nothing to show that appellant objected to the admission of the child hearsay testimony before he filed his motion for new trial. In the absence of a contemporaneous objection, appellant failed to preserve his claim that the trial court failed to make the required findings of reliability under section 90.803(23), Florida Statutes (2010). Elwell v. State, 954 So.2d 104, 106 (Fla. 2d DCA 2007); Wykle v. State, 659 So.2d 1287, 1288-89 (Fla. 5th DCA 1995); see also McCloud v. State, 91 So.3d 940 (Fla. 1st DCA 2012).

Appellant asserts he could not object to the lack of findings because the trial court never ruled on the admissibility of the child hearsay testimony. He notes the trial court’s post-trial statement that it intended to make a ruling at a pretrial hearing on February 24, 2012, was not a substitute for an actual ruling. Even if this is true, appellant still was required to secure a ruling on the admissibility of the child hearsay testimony in order to preserve the issue for appeal. See § 924.051(l)(b), Fla. Stat. (2011) (defining “preserved” to mean that “an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor” (emphasis added)). Absent a definitive pretrial ruling, appellant was required to object to the admission of the child hearsay testimony at trial. Tolbert v. State, 922 So.2d 1013, 1017 (Fla. 5th DCA 2006). He could not remain silent on the trial court’s failure to rule on the admissibility of child hearsay testimony, allow the testimony to be presented at trial without objection, and then object to the admission of the testimony for the first time in a motion for new trial after an adverse verdict. See State v. Brockman, 827 So.2d 299, 303 (Fla. 1st DCA 2002) (holding that, absent fundamental error, the admissibility of evidence could not be raised in a motion for new trial where there was no contemporaneous objection at trial).

Contrary to appellant’s assertion, this case is distinguishable from Johnson v. State, 76 So.3d 1124 (Fla. 1st DCA 2012). In that case, we held defense counsel preserved a claim of error in the admission of child hearsay testimony, even though the parties erroneously believed a ruling had been made by a predecessor judge as to the admissibility of the evidence, where counsel renewed his objection to the hearsay testimony at every opportunity during trial and, afterwards, in his motion for new trial. Id. at 1125-26. Unlike in Johnson, appellant never objected to the hearsay testimony at trial. Therefore, we conclude appellant’s claim is not preserved for appeal.

AFFIRMED.

CLARK and ROWE, JJ., concur.


text:
    Freddie Lee JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3498.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2013.
    Jeffrey E. Lewis, Regional Counsel, and Andrea Hart, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee (no appearance), for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.140(c).

LEWIS, C. J., ROBERTS and MAKAR, JJ., concur.


text:
    Louis B. NILES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6690.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2013.

      William J. Sheppard, Elizabeth L. White, Matthew R. Kachergus, and Bryan E. DeMaggio, of Sheppard, White & Ka-chergus, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General; and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Louis B. Niles appeals his conviction and sentence, entered following his guilty plea to one count of lewd or lascivious molestation. He argues that the trial court erred in denying his motions to dismiss the charges against him on the grounds that the delay of more than eight years between the issuance of the capias and his arrest violated his Sixth Amendment right to a speedy trial. Pursuant to the dictates of Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 83 L.Ed.2d 101 (1972), we agree and reverse.

I. Background

On March 6, 2000, the State filed an information charging Niles with two counts of lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes, for conduct allegedly occurring between January 15 and 18, 2000, in Nassau County. The alleged victims were K.M. (Count One) and M.M. (Count Two). A capias was issued on March 6, 2000 for Niles’ arrest. He was ultimately arrested on the capias on August 11, 2008, more than eight years after the charges were filed against him.

The relevant facts forming the basis of the charges and the context for our “speedy trial” analysis are as follows. While on an extended tour of the United States in his camper van, Niles visited the victims’ family in January 2000. Niles and the victims’ father became acquainted in connection with their military service and the father’s subsequent legal services on Niles’ behalf in a case unrelated to the instant case. During Niles’ visit, KM. and M.M. told their parents that Niles had inappropriately touched them with a vibrator while they were playing in Niles’ camper van. The parents confronted Niles, who denied any wrongdoing. The mother removed the children from the home, and the father demanded that Niles leave and not return.

A few days later, the parents discussed the incident with a counselor. The counselor alerted the Nassau County Sheriffs Office, which commenced an investigation as early as January 19, 2000, and during the ensuing weeks. The investigating officer, Detective Hemphill, spoke to the victims and their parents at the end of January 2000 and prepared handwritten notes as well as an investigative summary. At the time the incident was reported, the parents knew Niles’ residence address, phone number, and that he was a retired military officer receiving monthly retirement benefits from the United States Army. The sheriffs office received information from the parents regarding Niles’ background, including his social security number, and the likelihood that he would return in his camper van to California, where Niles’ previous attorney, Michael Rainey, lived. The father of the victims, who had also been previously represented by Rainey, had contact information for Rainey.

Aside from attempting to contact the family again by telephone shortly after questioning them, there is no evidence that the detective pursued the investigation further. According to the investigative report, he deemed the case closed after the capias issued, pending Niles’ arrest. Detective Hemphill left his employment with the Nassau County Sheriffs Office in 2001.

Approximately six months after the incident, attorney Rainey contacted the victims’ father, who traveled to California and met with Rainey. During that trip, the father met with Niles in San Diego for a breakfast that the father described as “civil.” There is no evidence that the father and Niles addressed or discussed the capi-as. Nor is there any evidence that the father even knew the capias had been issued at that time.

The stipulated facts reflect that Niles acquired a Broward County, Florida residence in 2004 and a valid Florida driver’s license in August 2006. He paid property taxes in Broward County and established his homestead there. Niles had a valid United States passport, which he used to travel abroad and return to the United States multiple times between 2000 and 2008. At no time when Niles re-entered the United States through Immigration and Customs was he notified of the existence of an outstanding capias, other than on the date he was arrested.

Authorities ultimately apprehended Niles as he crossed the border from Mexico into the United States. Immediately prior to his arrest, the Nassau County Sheriffs Office had entered the outstanding warrant into a national crime information computer database. There is no evidence that the State undertook any efforts to locate Niles between the closing of Detective Hemphill’s investigation in 2000 and the entry of the warrant into the national database in 2008.

II. Procedural History

After Niles’ arrest in August 2008, the State filed an amended information real-leging Counts One and Two and adding two counts of sexual battery against the same victims. In December 2008, Niles moved to dismiss the information and requested a discharge, citing the delay of more than eight years between the issuance of the capias and his arrest. In pertinent part, the motion to dismiss asserted that the prosecution of Niles was time-barred pursuant to the analyses of the constitutional right to a speedy trial in Doggett v. United States, 505 U.S. at 647, 112 S.Ct. at 2686 and Barker v. Wingo, 407 U.S. at 514, 92 S.Ct. at 2182. The motion alleged that certain records and notes compiled during the investigation are no longer available. The State filed a response opposing the motion.

At the beginning of the motion hearing on January 15, 2009, the prosecutor announced that the State did not dispute the facts alleged in the motion to dismiss. The State argued that Niles had not satisfied the four factors in Doggett that would entitle him to relief. The court issued a written order denying the motion to dismiss, without any findings of fact or legal explanation. In Case No. 1D09-844, Niles filed a petition for writ of prohibition in this Court, which denied relief without an opinion. Niles v. State, 7 So.3d 539 (Fla. 1st DCA 2009).

Niles moved in the trial court for reconsideration of the order denying the motion to dismiss. Again, defense counsel asserted that Niles is entitled to relief under Doggett. The State filed a response seeking to have the motion for reconsideration stricken as untimely filed or denied on the merits. The trial court conducted a hearing and issued a written order denying the motion, with no findings of fact or explanation. The State filed a third amended information charging two counts of lewd or lascivious molestation and two counts of sexual battery involving the same two victims. After considering Niles’ challenge to the third amended information, the trial court denied relief.

Niles entered a guilty plea to one count of lewd or lascivious molestation and was sentenced to eight years’ incarceration and three years’ sex offender probation. In exchange, the State agreed to nolle pros the remaining counts. Having expressly reserved the right to appeal the dispositive issue raised in the motion to dismiss, Niles argues on appeal that the delay of more than eight years between the issuance of the capias and his arrest violated his constitutional right to a speedy trial pursuant to the tests in Doggett and Barker.

III. Res Judicata

As an initial matter, the State contends that under the doctrine of res judicata, Niles is not entitled to relief in this appeal because this Court denied his petition for writ of prohibition after the trial court first denied the motion to dismiss. “Res judicata bars consideration of an issue in a subsequent proceeding where the issue was raised and denied on the merits in a prior extraordinary writ proceeding.” Rice v. State, 90 So.3d 929, 930 (Fla. 1st DCA 2012). The State assumes that, in denying the writ, this Court must have ruled on the merits. Our decision merely stated that the petition was “denied,” without any further elaboration. Niles, 7 So.3d at 539. The record does not support the State’s position because, without more information than is provided in the denial order, “in this State, unelaborat-ed denials in extraordinary writ eases shall not be deemed denials on the merits.” Topps v. State, 865 So.2d 1253, 1258 (Fla.2004). Therefore, we look to the merits of Niles’ Sixth Amendment claim.

IV. Sixth Amendment

The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The right to a speedy trial attaches “at the time of arrest or indictment, whichever comes first, and it continues until the date of trial.” Howell v. State, 418 So.2d 1164, 1167 (Fla. 1st DCA 1982) (citing United States v. Gonzalez, 671 F.2d 441, 444 (11th Cir.1982)). Unlike other procedural rights, it is “impossible to determine with precision when the right has been denied,” as it cannot be said definitely “how long is too long in a system where justice is supposed to be swift but deliberate.” Barker, 407 U.S. at 521, 92 S.Ct. 2182.

Because of the amorphous quality of this right, “any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case.” Id. at 522. The United States Supreme Court in Barker established a balancing test to guide this analysis, which weighs the conduct of both the State and the defendant. It involves the consideration of four factors: (1) the “length of the delay,” (2) the “reason for the delay,” (3) the “defendant’s assertion of his right,” and (4) the “prejudice to the defendant.” Id. at 530. None of these four factors, standing alone, is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Id. at 533.

Generally, the determination of whether a defendant’s constitutional right to a speedy trial has been violated presents a mixed question of law and fact. United States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir.2010); United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir.2006). Ordinarily, we would defer to the trial court’s factual findings that are supported by competent, substantial evidence, while reviewing the court’s ultimate legal conclusions de novo. Morel v. Wilkins, 84 So.3d 226, 231 (Fla.2012). However, because the trial court’s ruling denying Niles’ motions to dismiss contained no findings of fact or conclusions of law, our review is de novo. See United States v. Molina-Solorio, 577 F.3d 300, 304 (5th Cir.2009) (stating that the appellate court has de novo review of the trial court’s application of the Barker factors); United Health Care of Fla., Inc. v. Brown, 984 So.2d 583, 585 (Fla. 4th DCA 2008). We therefore undertake the analysis required by Barker, applying each of the four factors to the facts available in the record.

A. Length of Delay

The first Barker factor, the length of the delay, “is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” 407 U.S. at 531, 92 S.Ct. 2182; see Doggett, 505 U.S. at 651-52, 112 S.Ct. 2686. The first Barker factor is also considered a “double enquiry.” Once the interval between accusation and trial has crossed the threshold to become “presumptively prejudicial,” the court must then consider, in part, the extent to which the delay has extended beyond the “bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U.S. at 651-52, 112 S.Ct. 2686. “The longer the pretrial delay extended beyond the ‘bare minimum’ necessary to show presumptive prejudice, the stronger the presumption that the pretrial delay prejudiced the defendant.” Villarreal, 613 F.3d at 1350.

In the present case, the State properly concedes that the delay of more than eight years between the issuance of the capias and Niles’ arrest triggers the analysis of the remaining Barker factors. See Doggett, 505 U.S. at 651-52, 112 S.Ct. 2686 (concluding that a six-year delay attributable to the government was presumptively prejudicial); Ingram, 446 F.3d at 1336-37 (finding that a two-year delay between the indictment and the trial required the court to proceed with the full Barker test, and noting that delays exceeding one year are generally deemed presumptively prejudicial); Madonia v. State, 648 So.2d 260, 261 (Fla. 5th DCA 1994) (holding that a three-year delay was presumptively prejudicial, triggered a Doggett inquiry, and violated the right to a speedy trial). Moreover, we conclude that this factor weighs heavily against the State because of the extraordinary length of the delay. United States v. Bergfeld, 280 F.3d 486, 489 (5th Cir.2002); Molina-Solorio, 577 F.3d at 305.

B. Reasons for Delay

The second Barker factor involves the reason the government assigns to justify the delay. 407 U.S. at 531, 92 S.Ct. 2182. “Because the prosecutor and the court have an affirmative constitutional obligation to try the defendant in a timely manner ... the burden is on the prosecution to explain the cause of the pretrial delay.” Digram, 446 F.3d at 1337 (internal citation omitted).

Courts will accord different weights to different reasons for the delay. For instance, if the government deliberately tries to impede the defense, this factor will weigh heavily against the government, whereas negligence on the government’s part “should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker, 407 U.S. at 531, 92 S.Ct. 2182. The weight assigned to official negligence “compounds over time as the presumption of evidentia-ry prejudice grows.” Doggett 505 U.S. at 647, 112 S.Ct. 2686. When there is a valid reason for the delay, such as when a defendant intentionally evades detection, such a delay is justified. See Ingram, 446 F.3d at 1337 (“[A] defendant who intentionally evades the Government’s efforts to bring him to trial is culpable in causing the delay.”). The determination of which side is responsible or at “fault” for the delay also affects the analysis of the fourth Barker factor, relating to the burden of proving prejudice to defendant as a result of the delay.

According to the stipulated facts in this case, the 2000 capias was not entered into a national database to aid in capturing Niles until immediately prior to his 2008 arrest. For this reason, the State correctly concedes that its own negligence contributed to the delay, and that this second Barker factor weighs against the State.

Attempting to mitigate the effects of its failure to investigate, the State argues that the trial court could have inferred from evidence in the record that Niles engaged in evasive tactics to avoid prosecution. To support this theory, the State relies on jail telephone calls between Niles and unidentified individuals, the recordings of which were entered into evidence during the hearing on Niles’ motion to dismiss. In one such call, Niles discussed using a Florida address to avoid paying taxes in California and that he did this “forever.” That Niles may have been evading taxes is not the same as his evading the capias, where the State presented no direct evidence that Niles even knew about the capias until the time of his arrest. To the extent the State suggests that it would have been unable to find Niles even if authorities had tried, this argument is based on pure speculation, as there is no evidence that law enforcement took any steps at all to find Niles during this eight-year interim.

In another jail telephone call, Niles discussed a civil lawsuit and commented: “They still want to depo me, but Mike [Rainey] is — Mike [Rainey] is hiding me right now without letting them know.” When the trial court asked attorney Rai-ney about this comment during the hearing, Rainey explained that Niles was referring to Rainey’s legal efforts, after the arrest in the instant case, not to disclose to certain’ parties (in an unrelated civil lawsuit) that Niles was currently in the Nassau County Jail. No evidence was introduced at the hearing that Rainey was trying to hide Niles prior to his arrest. Where the authorities took no timely steps to try to locate Niles or apprise him of the pending capias, Niles had nothing to evade and no reason to hide.

The objective evidence in this case overwhelmingly leads to the conclusion that the March 2000 capias lay dormant for more than eight years; and that the authorities undertook no investigation whatsoever after interviewing the victims and their parents, despite having specific information that, if investigated, would have led law enforcement to Niles much sooner than 2008. Law enforcement knew of Niles’ social security number, his date of birth, his California connection, and his past military service in the U.S. Army. He purchased a residence in Broward County in 2004 and obtained a Florida driver’s license in 2006. He paid property taxes in Broward County and established a homestead there. Niles traveled to other countries and back to the United States on at least five different occasions, passing through Department of Homeland Security stations without detection.

The absence of any official attempt to locate Niles presented no opportunity or reason for him to evade detection. As soon as the authorities placed the capias into a national database, they found and arrested Niles. Without sufficient evidence that Niles contributed to the unreasonable delay, this second factor weighs heavily against the State. United States v. Mitchell, 146 F.3d at 1339 (11th Cir.1998).

C. Assertion of Right

The third Barker factor is the defendant’s assertion of the right to a speedy trial. 407 U.S. at 530-32, 92 S.Ct. 2182. “[F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532. The State argues that Niles failed to timely assert his constitutional right to a speedy trial. But the State did not present credible evidence that Niles knew about the pending capias until his arrest in 2008. His numerous actions, which established easily traceable ties to Florida and California, as well as his frequent travels abroad and back, are entirely consistent with the conclusion that Niles was unaware of the capias and was not trying to hide from law enforcement. Thus, Niles could not have asserted his right to a speedy trial prior to his arrest. See Doggett, 505 U.S. at 653-54, 112 S.Ct. 2686 (finding that the defendant is “not to be taxed for invoking his speedy trial right only after his arrest,” if he is unaware that he was under indictment or that “the police had come looking for him”). At his arraignment and in his motion to dismiss, Niles asserted the denial of his constitutional right to a speedy trial. This meets the requirements of Barker. See Seymour v. State, 738 So.2d 984, 986 (Fla. 2d DCA 1999); Howell, 418 So.2d at 1173.

D. Prejudice to Defendant

The fourth Barker factor is prejudice to the defendant. 407 U.S. at 532, 92 S.Ct. 2182. Courts should assess this factor “in the light of the interests of defendants which the speedy trial right was designed to protect.” Id. The Court in Barker identified three interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. (citation omitted). Of these three interests, the most serious is the last one, “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.; Doggett, 505 U.S. at 654, 112 S.Ct. 2686.

Ordinarily, a defendant must show actual prejudice under the fourth Barker factor; however, where the first three factors weigh heavily against the State, prejudice is presumed. Ingram, 446 F.3d at 1336 (citing Doggett). As the Court in Doggett explained:

[ A]ffirmative proof of particularized prejudice is not essential to every speedy trial claim. Barker explicitly recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony “can rarely be shown.” And though time can tilt the case against either side, one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.

505 U.S. at 655-56, 112 S.Ct. 2686 (internal citations omitted).

In the case before us, Niles was not incarcerated during the delay of more than eight years, nor does the record indicate that he had anxiety or concern, given his apparent unawareness of the capias. Therefore, the only applicable purpose of the constitutional speedy trial rule, as applied to the fourth Barker factor, is the possibility that the lengthy delay impaired Niles’ ability to prepare his defense.

The State argued in the trial court, as it does on appeal, that on this record, Niles has to show actual prejudice because the first three Barker factors do not weigh heavily against the State. We disagree, as no view of the evidence supports the State’s conclusion regarding the weight of these three factors, and its assertion that Niles contributed to the delay. Because the first three factors weigh heavily against the State, as they did against the government in Doggett, Niles is not required to show actual prejudice. Ingram, 446 F.3d at 1340; United States v. Dennard, 722 F.2d 1510, 1513 (11th Cir.1984); United States v. Avalos, 541 F.2d 1100, 1116 (5th Cir.1976). Instead, the prejudice to Niles is presumed. Doggett, 505 U.S. at 654-58, 112 S.Ct. 2686.

The State acknowledges in this appeal that the presumption of prejudice from a lengthy delay (not attributable to any attempt to evade justice by the defendant) shifts the burden to the government to rebut the presumption. This requires the State to affirmatively prove that the delay did not impair the defendant’s ability to prepare a defense. Doggett, 505 U.S. at 658 n. 4, 112 S.Ct. 2686; United States v. Battis, 589 F.3d 673, 682 (3d Cir.2009). In this case, the State argues that the passage of more than eight years severely damaged the State’s case due to the younger victim’s and the lead detective’s lack of independent recollection. This may be true. But the State fails to establish that the lengthy delay did not impair Niles’ ability to prepare a defense. On this record, we conclude that the State did not meet its burden to persuasively rebut the presumption of prejudice.

According to the well-established framework for analyzing speedy trial claims established by Barker and Doggett, the trial court erred as a matter of law in denying the motion to dismiss the information. We must therefore reverse the judgment and sentence.

REVERSED.

VAN NORTWICK, MARSTILLER, and RAY, JJ., concur.

      . The Sixth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. Barker, 407 U.S. at 515, 92 S.Ct. 2182.

        . In the instant case, Niles has put at issue the period between the issuance of the capias and the date of his arrest as violating his speedy trial right.

      . To be clear, had the State pursued Niles with "reasonable diligence,” his speedy trial claim would have failed, regardless of the length of the delay, if Niles could not show specific prejudice to his defense. See Doggett, 505 U.S. at 656, 112 S.Ct. 2686.


text:
    Maxine LAMPERT-SACHER, Former Wife, Appellant, v. Mark SACHER, Former Husband, Appellee.
    No. 1D13-3967.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2013.

      William Falik of William Falik, P.A., Gainesville, for Appellant.
    Kelly McNeal of McNeal & Yochim, P.L., Gainesville, for Appellee.
   PER CURIAM.

Appellant Maxine Lampert-Saeher has appealed a supplemental final judgment regarding time sharing entered in response to the second amended supplemental petition for modification filed by Mark Sacher, her former husband and appellee. Appellant’s motion for stay pending appeal was denied by the trial court. Appellant now files an emergency motion for stay in this court. We treat appellant’s motion as one seeking review of the trial court’s denial of a stay pursuant to rule 9.310(f), Florida Rules of Appellate Procedure.

This court applies an abuse of discretion standard in reviewing a lower tribunal’s order on a motion for stay. See Polar Ice Cream & Creamery v. Andrews, 159 So.2d 672 (Fla. 1st DCA 1964). The burden is on the movant to demonstrate such an abuse of discretion. A party seeking to stay the lower tribunal order pending appeal should demonstrate a likelihood of prevailing on appeal, irreparable harm to movant if the motion is not granted, or a showing that a stay would be in the public interest. See White Const. Co., Inc. v. Dept. of Transp., 526 So.2d 998 (Fla. 1st DCA 1988). Appellant has failed to meet this standard. In her motion, appellant argues that the trial court erred in finding a substantial change in circumstances and in concluding that the children’s best interest would be served by having them primarily reside with appellee. With this argument, appellant appears to have simply adopted a view of the facts different than the facts found by the trial court in its lengthy and detailed order. Despite discounting the evidence favorable to appel-lee, appellant has not shown at this point in the appellate process that any of the material facts found by the trial court are unsupported by the evidence, or that the trial court abused its discretion in denying a stay pending appeal.

Accordingly, we find no abuse of discretion and affirm the order of the trial court denying a stay.

WOLF, VAN NORTWICK, and ROWE, JJ., concur.


text:
    David SEMBACH, as Chief of the Neptune Beach Police Department, Appellant, v. Brenda Beckham MILLER, Appellee.
    No. 1D12-4004.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2013.
    Stephen E.P. Grissett, Assistant State Attorney, Jacksonville, for Appellant.
    Brenda Beckham Miller, pro se, for Ap-pellee.
   PER CURIAM.

This Court’s order, dated August 31, 2012, denying Appellee’s Motion to Dismiss, is withdrawn. Upon review of the record on appeal, which this Court received October 1, 2012, more than a month after the denial, the court determines Ap-pellee’s motion was improvidently denied.

The record contains the lower court’s Final Judgment: signed July 12, 2012, stamped filed by the clerk of the lower court July 13, 2012. The lower court’s docket report confirms the same. Appellant’s clock thus began ticking on July 13, 2012 — when the signed, written order was filed with and by the clerk. See Fla. R.App. P. 9.020(i). Appellant filed his notice of appeal on August 20, 2012 — a week beyond his thirty-day deadline. See Fla. R.App. P. 9.110(b). Accordingly, this court does not have jurisdiction to hear the appeal, and Appellant’s appeal is DISMISSED. The order of the trial court stands. “The [Appellee’s] vehicle should be returned forthwith.”

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


text:
    Ronald Ray AUSTIN, Husband, Appellant, v. Cynthia B. AUSTIN, Wife, Appellee.
    No. 1D13-1766.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.

      Jeanine B. Sasser of Jeanine B. Sasser, P.A., Jacksonville, for Appellant.
    Elliot Zisser of Zisser, Robison, Brown, Nowlis, Maciejewski & Cabrey, P.A., Jacksonville, for Appellee.
   SWANSON, J.

In this dissolution of marriage proceeding, we have for review the trial court’s interlocutory Order on Wife’s Emergency Motion, directing the liquidation of certain of the husband’s assets and the disbursement of the resulting funds to assist in paying an estimated $28,000 mortgage debt, and the escrowing of other funds. The husband raises two issues challenging the trial court’s rulings. We have jurisdiction.

History

Ronald Ray Austin (“the husband”) and Cynthia B. Austin (“the wife”) were shareholders in the Jacksonville law firm of Austin & Austin, P.A. On April 10, 2012, the husband filed a petition for dissolution of marriage. The wife ultimately left the firm and, by the time of the hearing leading up to the order on review, had secured employment with Broad and Cassel, earning an annual salary somewhere between $135,000 to $150,000. In the meantime, the parties’ marital home was facing imminent foreclosure. A potential source of money to save the home was believed to be found in the form of attorney’s fees owed by the Jacksonville Transportation Authority (“JTA”). Consequently, on January 14, 2013, the trial court held a hearing on the wife’s Renewed and Second Supplement to Wife’s Motion for Temporary Needs, as well as on JTA’s Motion to Intervene and for Interpleader Relief. On February 4, 2013, the trial court entered a Second Amended Order on Non-Party, [JTA’s] Motion to Intervene and for Interpleader Relief, granting the motion and ordering that “the sum owed by JTA to Austin & Austin, P.A., for legal services rendered (the “Interpleaded Fund”)” would be “distributed and/or retained” in the following manner:

a. The portion of the Interpleaded Fund that is owed to the law firm of Broad and Cassel (the “Undisputed Amount”) shall be remitted by JTA to Broad and Cassel; and
b. The remaining portion of the Inter-pleaded Fund (the “Disputed Amount”) shall be retained by JTA until this Court makes a determination as to distribution of the Disputed Amount.

More specifically, the trial court instructed that its order would “not apply to invoices submitted for legal services performed subsequent to April 12, 2012[,] and Ronald R. Austin, Austin & Austin, and/or Ronald R. Austin’s successor law firm, shall be entitled to receive payment on such invoices without further order of this Court.”

On February 19, 2013, the trial court issued an order on the wife’s Renewed and Second Supplement to Wife’s Motion for Temporary Needs. In the order, the trial court found the wife needed, and the husband had the ability to pay, $5000 per month as alimony and child support. The court also found that the law firm of Austin & Austin and/or Ronald Austin was entitled to certain funds from JTA “which accrued either before or after the wife was determined to have left the practice on or about April 30, 2012.” In addition, the court found the marital home was approximately five months in arrears on mortgage payments and ordered that “[a]ll funds obtained from the JTA on outstanding invoices, whether generated prior or subsequent to April 30, 2012, shall, upon payment, be utilized to catch up the mortgage” on the marital home.

THE WIFE’S MOTION

The apparent inconsistencies in the preceding two orders concerning the distribution of attorney’s fees from JTA prompted the wife to file, on February 20, 2013, her Motion for Emergency Relief and for Clarification and/or Enforcement. In her motion, the wife represented her belief that the husband had been ordered “to pay all of the money due from [JTA] to catch up the mortgage.” Instead, she alleged the husband was parsing the trial court’s earlier instructions to mean that those fees “which were due Ronald Austin prior to April 30 may be applied [to the mortgage], but anything after April 30 and prior to the date of the hearing [was] not to be applied to the mortgage,” and that he was “attempting to keep $16,000 from being applied to the mortgage.” She also claimed the “total amount due Ronald Austin and/or Austin and Austin from JTA [was] approximately $21,000,” and that “[t]he amount to make the mortgage current [was] approximately $23,615 which must be paid by the end of February or the Bank’s offer to reinstate the mortgage would be withdrawn.” The wife went on to plead that she was “in desperate need of February support, together with [the] approximately $21,000 in funds from JTA in order to avoid losing the substantial equity in the home.” Accordingly, she asked for entry of an order “granting [an] immediate emergency hearing or otherwise clarifying the Court’s ruling as to ... whether the entirety of the JTA funds in escrow, up to the date of the ruling on January 25, 2013[sic], [was] to be applied to the mortgage on the jointly held marital home.”

At the ensuing hearing on the wife’s motion, however, the wife’s attorney informed the trial court that he had, just the night before, been informed by JTA that it did not owe any further attorney’s fees, and his current calculation was that $28,000 was needed to reinstate the mortgage. This revelation, along with the additional announcement that the homeowners’ association had placed a lien on the home, prompted the trial court to change its focus to the “real” issue of “getting all these bills caught up[J” Accordingly, it asked the wife’s attorney what the wife was requesting, and counsel responded that the wife would like as much paid towards the $28,000 owed on the mortgage as possible. Counsel noted that the wife had $6000 on hand, and claimed the husband possessed over $18,000 in a deferred compensation fund he had opened when he previously worked for the state. The husband also had approximately $4000 in an IRA account. Counsel then claimed that the husband’s wine collection was worth approximately $55,000, and he possessed other valuables which, if liquidated, would supply additional funds. Counsel asked that the husband pay as much of the $28,000 as he could, and requested the trial court to instruct the husband to sign an authorization to allow him to speak to the husband’s accountant.

The husband’s attorney objected to that last request on the basis it had not been noticed for hearing. She then asked that nothing in the trial court’s ensuing order should concern JTA, since the court did not have subject matter jurisdiction over “the JTA monies.” She also requested that the trial court not order the husband “to sell everything” he had, and force him to dip into his retirement to make up the mortgage deficiency in order to save the house, which, she suggested, should be sold. Husband’s counsel objected to the direction the court was taking on the basis that ordering the husband to sell his assets to pay the mortgage deficiency had never been pled by the wife.

After listening to both parties — the husband testifying that his retirement account was worth $18,504, and his IRA was worth $3,992.40; the wife testifying that she had $6000 in a bank account — the trial court announced its intention to order “whatever accounts and monies that [were] available on both parties be liquidated to catch up the mortgage and catch up these outstanding expenses.” That meant, “18 from him, 6 from her,” and the trial court then asked, “What else?” Attention turned to the husband’s wine collection, with the court guessing the collection could be liquidated up to “at least $4000,” and authorizing the wife to accomplish the sale. For her part, the wife offered up her dining room furniture and asked the court for additional authorization to work with the mortgage company. Once everything was placed on the table, the trial court announced its ruling:

So the Court’s order is that the 18,504 will be used. The Wife is going to give the 6000. The wine collection will be liquidated. Accounting will be done and provided to the Husband, and all those monies will be used to catch up the mortgage and to catch up the outstanding bills. Anything leftover [sic] will be held in trust, and the Wife is authorized to sell the dining room set to catch up the bills. I will grant the request to have the Husband sign authority for her to talk to the mortgage companies—
... — so that she can try to negotiate something with them, and I think the JTA issue is moot now....

The wife’s attorney added that should any money materialize from JTA, he asked it be escrowed with either him or the husband’s attorney. At this point in the proceedings, the husband’s attorney objected, again arguing that the trial court did not have subject matter jurisdiction over the corporations. Further, at the conclusion of the hearing, she reminded the trial court, “for the record,” that the husband had objected to the direction the hearing had taken and that he was “not trying it by consent ... since it wasn’t pled.”

THE ORDER

In its Order on Wife’s Motion for Emergency Relief, the trial court acknowledged it “had previously ordered certain funds to be used to bring the marital home out of foreclosure [but][t]hose funds did not materialize as anticipated by all parties.” It also acknowledged that testimony taken at the hearing revealed other assets “that may be used to save the home,” but noticed the husband’s objection to that option and his request that the court order the sale of the marital home, which the court declined to do “at this juncture.” The trial court further considered the husband’s argument that “Due Process require[d] the issue of the foreclosure not to be heard as it was not properly noticed,” but ruled “[t]he parties were on notice that the nature of the emergency was foreclosure of the home. Therefore, any and all actions taken at the hearing to eliminate that emergency[,] i.e.[,] foreclosure, would be properly considered at the noticed hearing.” In addition, the trial court conceded the money anticipated for past attorney’s fees from JTA would “apparently not be received,” and, thus, the application of those fees to the mortgage indebtedness was “a moot point.” Nonetheless, the court directed that “[s]hould such fees for services rendered before or after April 30, 2012 up to the date of the prior hearing, January 14, 2013 materialize, said funds shall be escrowed with the attorney for either the husband or the wife pending further Court hearing.” Accordingly, the trial court ordered the husband to liquidate his State of Florida deferred compensation fund and his IRA, and apply those monies to the outstanding mortgage indebtedness.

The trial court also authorized the wife to liquidate the parties’ wine collection and apply the proceeds to the mortgage. In addition, she was ordered to apply the approximately $6000 in her bank account toward the mortgage and the homeowners association delinquency, and to sell her dining room furniture and likewise apply those funds to the mortgage. The court reserved jurisdiction “to apply the funds ordered liquidated herein to or against either party in an equitable distribution of the parties’ assets and liabilities.” It further reserved “for subsequent consideration the question of subject matter jurisdiction over the distribution of any funds received from the [JTA] by the Austin & Austin and/or Ronald Austin Law Firm, taking that matter under advisement. Instead, it reiterated that “should any fees for services rendered to JTA before or after April 30, 2012 and up to the date of the prior hearing, January 14, 2018 materialize, said funds shall be escrowed with the attorney for either the husband or the wife pending further Court hearing.” This appeal ensued.

ANALYSIS

In his first point challenging the trial court’s order, the husband argues the trial court lacked personal jurisdiction over his law firm, as it was not made a party to the action, and, therefore could not escrow fees owed to the firm. He also argues the court lacked subject matter jurisdiction over attorney’s fees paid to a non-party corporation by another non-party corporation, JTA. Generally speaking, while a family-owned business is considered a marital asset subject to equitable distribution, see, e.g., Esposito v. Esposito, 651 So.2d 1248, 1249 (Fla. 2d DCA 1995), a trial court does not have the power to order the transfer of corporate property or assets without joinder of the corporation. See Mathes v. Mathes, 91 So.3d 207, 208 (Fla. 2d DCA 2012); Sandstrom v. Sandstrom, 617 So.2d 327, 328 (Fla. 4th DCA 1993); Keller v. Keller, 521 So.2d 273, 276 (Fla. 5th DCA 1988); Ashourian v. Ashourian, 483 So.2d 486, 486 (Fla. 1st DCA 1986). On the other hand, a trial court has the power to value and distribute corporate stock determined to be a marital asset, Mathes, 91 So.3d at 208, and “may preclude the husband’s disposal of assets over which he exercises exclusive control, without the necessity of joining the various corporations as parties.” Ashourian, 483 So.2d at 487. That, however, is not what the trial court attempted to do by its current order. The trial court did not make a finding as to whether the anticipated attorney’s fees were marital or non-marital or whether the wife had a special equity in same. Nor did the court find that escrow-ing the (anticipated) forthcoming fees would be squandered by the husband. Moreover, the trial court’s directions concerning the escrowing of fees were, at best, tentative, as it was acknowledged that, at the time of the order, no attorney’s fees were due and owing by JTA to the husband’s law firm. Indeed, the trial court ! expressly considered the issue “moot.” Consequently, rather than reversal, as. there appears to be nothing adverse to the husband requiring reversal on this subject, we consider the more judicious approach toward avoiding any jurisdictional issue is simply to strike the portion of the order directing the escrowing of fees from JTA as mere surplusage.

In his second point, the husband argues the trial court abused its discretion by ordering the liquidation of his assets when that remedy had not been pled in the wife’s Motion for Emergency Relief. On this point, we agree with the husband. The wife’s motion focused solely on the anticipated attorney’s fees from JTA to pay the mortgage arrearage; nothing in her motion sought alternative funds from other sources, least of all, the husband’s assets, one of which may or may not be nonmarital. While we sympathize with the trial court’s concern that the foreclosure of the parties’ home would result in the loss of substantial equity, the dictates of procedural due process demand that a party be placed on notice and given a meaningful opportunity to be heard before being divested of his or her property. “ ‘It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.’ ” Norberg v. Norberg, 79 So.3d 887, 889 (Fla. 4th DCA 2012) (quoting Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003)). Accord Mondello v. Torres, 47 So.3d 389, 397 (Fla. 4th DCA 2010) (“[A]s a general rule, a violation of due process occurs when a court determines matters not noticed for hearing and not the subject of appropriate pleadings.”); Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.”); Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981) (holding that a judgment based outside the pleadings cannot stand).

Section 61.075(5), Florida Statutes (2011), does not authorize the trial court’s action here, contrary to the wife’s urging. This section provides in pertinent part as follows:

If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an order that shall identify and value the marital and nonmarital assets and liabilities made the subject of a sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities.

The wife’s argument disregards the portion of the above-quoted statutory language requiring that the marital and non-marital assets subject to an interim partial distribution be “made the subject of a sworn motion.” (Emphasis added.) In this case, not only was the wife’s motion not sworn, but it did not reference the husband’s assets that were ultimately made the subject of liquidation and distribution by the interim order. Nor, again, did the trial court make any effort to identify which assets were marital and which were nonmarital. Where a party’s private property is at stake, the simple fact, according to the trial court, that “the parties were on notice that the nature of the emergency was the foreclosure of the home,” would not justify, as the court further observed, “any and all actions taken at the hearing to eliminate that emergency. ...” Cf. Carmona v. Wal-Mart Stores, E., LP, 81 So.3d 461, 464 (Fla. 2d DCA 2011) (“To be sufficient, the notice must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections). The notice must ... convey the required information, and it must afford a reasonable time for those interested to make their appearance.’ ’’(quoting N.C. v. Anderson, 882 So.2d 990, 993 (Fla.2004) (some internal quotation marks omitted)). In the instant case, the husband was wholly without notice that his State of Florida deferred compensation fund, his IRA, and his wine collection would be subject to liquidation in order to reinstate the mortgage. Consequently, it was an abuse of the trial court’s discretion to order him to do so.

For the reasons articulated, portions of the Order on Wife’s Motion for Emergency Relief are struck, and the remainder of the order is REVERSED.

THOMAS, and ROWE, JJ., concur.

         See Art. V, § 4(b)(1), Fla. Const. (granting to district courts of appeal jurisdiction to "review interlocutory orders ... to the extent provided by rules adopted by the supreme court”); Fla. R.App. P. 9.130(a)(3)(C)(ii) & (iii) (providing for appeal to the district courts of appeal of non-final orders that determine "the right to immediate possession of property” and "the right to immediate monetary relief ... in family law matters”).


text:
    John William PAYTON, Jr., Husband, Appellant, v. Julie Anne East PAYTON, Wife, Appellee.
    No. 1D12-2278.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.
    Lynn W. Martin, of Law Office of Lynn W. Martin, for Appellant.
    Julie Anne East Payton, pro se, Appel-lee.
   PER CURIAM.

John W. Payton, Jr., appeals an order finding him in contempt, but which suspended enforcement conditioned upon his payment of a purge amount of $2,000. The order also required him to continue to pay $200 towards a new total arrearage amount due of $5,110.09. The trial court also directed Mr. Payton to pay $500 toward his former wife’s attorney’s fees and to provide reimbursement of $256 for his half of a medical bill. He contests the total new arrearage amount of $5,119.09 because it is based, in part, on an amount this Court could not determine was based on competent, substantial record evidence in Payton v. Payton, 109 So.3d 280 (Fla. 1st DCA 2013) (Payton I), which issued forty-five days before issuance of the contempt order. In Payton I, the panel remanded the matter and directed that more specific findings be entered, which has not yet been done. As such, we find merit in Mr. Payton’s argument and reverse the Order on Motion for Contempt. On remand, the trial court shall recalculate the amount of new arrearage and purge, as necessary, after the trial court ensures compliance with this Court’s mandate in Payton I. We vacate the award of attorneys’ fees, leaving it to the trial court to make a de novo determination of entitlement on remand.

REVERSED and REMANDED.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.

      . It appears that an addition error in the order explains the discrepancy between this total new arrearage amount and the sum of the prior support arrearage ($2,530.09) and the new balance owed ($2,589.00) which equals $5,119.09 (versus $5,110.09).


text:
    E.L, Mother of J.R, A Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-3664.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.
    Susan Barber, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee (no appearance), and Wesley G. Nic-holls II, Office of Criminal Conflict and Civil Regional Counsel, Pensacola, for Appellant.

      Kathryn E. Errington, Guardian ad Li-tem, Pensacola; Robert C. Allen, Pensacola; Kelley Schaeffer, Guardian ad Litem, Sanford; Jason Verschueren, Department of Children and Families, Pensacola; and Dwight 0. Slater, Department of Children and Families, Tallahassee (no appearances except for Dwight 0. Slater, Department of Children and Families, Tallahassee) for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b). This dismissal is without prejudice to appellant’s right to seek relief in the trial court. See Interest of E. H., 609 So.2d 1289, 1290-1291 (Fla.1992).

LEWIS, C. J., ROBERTS and MAKAR, JJ., concur.