author: MAKAR, J.

text:
    STATE of Florida DEPARTMENT OF FINANCIAL SERVICES, Appellant, v. Lisa O’CONNOR, f/k/a Lisa Zane, Appellee.
    No. 1D13-5743.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.

      Paul C. Stadler, Jr., Assistant General Counsel, Tallahassee, for Appellant.
    Michael Farrar, Miami, for Appellee.
   MAKAR, J.

Unclaimed property and an unpaid judgment collide in this marital dissolution case. At issue is whether a judgment for unpaid child support and marital proceeds can form the basis for obtaining ownership of funds held as unclaimed property by the State.

I.

The marriage of Lisa O’Connor and Na-beel Zane was dissolved on October 17, 1996. Nearly seven years later, the trial court entered a post-dissolution final judgment dated August 28, 2003, ordering Zane to pay O’Connor $2,050.80 per month in child support, half of the proceeds from the sale of the marital home ($67,939.63), and half of the proceeds from the sale of a Disney timeshare ($8,124.00). After seven more years passed, the trial court certified on October 14, 2010, that Zane had failed to pay court-ordered support payments into the depository, resulting in an arrear-age balance of $177,860.40. Within a few months, O’Connor filed a judgment lien against Zane in this amount.

On February 11, 2011, O’Connor filed a motion for declaration that she was entitled to the approximately $32,430.79 of funds held in several accounts by the Bureau of Unclaimed Property of the Department of Financial Services (“Department”) with Zane listed as the owner; Zane, we are told, has fled the country to the Middle East. The Department intervened and moved to dismiss, contending that the circuit court lacked jurisdiction because O’Connor had not exhausted administrative remedies available to her to seek funds under the Department’s control. The court granted the Department’s motion and this Court affirmed with a written opinion. O’Connor v. Zane, 79 So.3d 105 (Fla. 1st DCA 2012) [O’Connor I ]. In its concluding paragraph, the Court noted that:

[I]f Ms. O’Connor files a claim under section 717.124, the department must determine whether it is in possession of unclaimed property belonging to Mr. Zane, and if the property consists of cash, it must state the amount. Ms. O’Connor may then obtain legal process or pursue judicial remedies, if necessary, to execute her judgment against the property.

79 So.3d at 106. Armed with this Court’s opinion, O’Connor immediately filed an amended judgment lien against Zane, and a writ of execution was delivered to the Leon County Sheriff, who was instructed to find Zane and seize his assets.

A year later, on May 28, 2013, O’Connor filed a claim with the Department seeking Zane’s unclaimed property pursuant to section 717.124, Florida Statutes. In response, the Department issued a “Notice of Intent” finding that only Zane — not O’Connor — was entitled to the unclaimed property. On June 26, 2013, the Department issued a Final Order denying O’Con-nor’s claim.

Having exhausted administrative remedies, O’Connor filed a writ of garnishment under section 77.049 for Zane’s unclaimed funds, which the Department moved to dismiss and dissolve on sovereign immunity grounds. After a hearing on the motion, the trial court entered an order denying it. The ruling was based on its statements at the hearing that: O’Connor I was persuasive, even if dicta, as to O’Connor’s legal rights; section 61.12, Florida Statutes, waived sovereign immunity for purposes of garnishing the unclaimed property; a one-time transfer of the unclaimed property did not add much work for the State compared with ongoing garnishments; unclaimed funds were much like bank accounts that can be transferred; and public policy favored the result reached. This appeal followed.

II.

The central focus of this appeal is whether sovereign immunity bars O’Con-nor from reaching the unclaimed funds at issue. The Department contends that neither the garnishment statute, section 61.12, nor the unclaimed property statute, section 717.124, clearly and unequivocally waive sovereign immunity for the purposes of allowing judgment creditors to reach such funds. O’Connor counters that the purpose of section 717.124 is to return unclaimed property to its owner. Accordingly, she asserts that her equitable and legal claim of ownership over the funds arising from the judgment lien and writ of execution entitles her to the unclaimed funds of her former spouse. She argues that sovereign immunity is not implicated because the State is merely a custodian of the property in the unclaimed funds accounts, not the title holder or owner of the accounts. Alternatively, even if sovereign immunity were implicated, section 61.12 waives sovereign immunity for her garnishment of the accounts. Finally, O’Con-nor argues that the Department’s position violates the law of the case, set forth in O’Connor I.

In reply, the Department again emphasizes that no clear and unequivocal waiver of sovereign immunity has been shown, arguing that the trial court erred in finding that section 61.12 does so. Allowing the garnishment statute to waive sovereign immunity for purposes other than wages, it asserts, would disrupt administrative processes by subjecting the Department to judgment creditors seeking funds in unclaimed property accounts. As to O’Connor I, it is not law of the case because the statements that O’Connor and the trial court rely upon are dicta.

A.

The disposition of unclaimed property is the subject of Chapter 717, Florida Statutes. Section 717.1201(1) states that once unclaimed property is paid to or delivered to the Department, the “state assumes custody and responsibility for the safekeeping of property.” A person attempting to claim such property must turn to section 717.124, which provides: “Any person, excluding another state, claiming an interest in any property paid or delivered to the department under this chapter may file with the department a claim....” Further, section 717.101(18) defines “owner” for purposes of unclaimed property as, among other things, “a person having a legal or equitable interest in property subject to this chapter....”

In O’Connor I, this Court held that O’Connor had not exhausted her administrative remedies because she did not file a claim with the Department pursuant to Chapter 717. Affirming dismissal for that reason, this Court noted:

The statutes dealing with disposition of unclaimed property in Chapter 717, Florida Statutes, do not authorize the department to determine the priority of claims that could be asserted by judgment creditors against unclaimed property in its possession. See Martin Young Private Investigative Agency, Inc. v. Department of Banking and Finance, 659 So.2d 410 (Fla. 1st DCA 1995). However, a judgment creditor does have standing to assert a claim against unclaimed property in the hands of the state in order to obtain a determination that the property does in fact belong to the judgment debtor.
Accordingly, if Ms. O’Connor files a claim under section 717.124, the department must determine whether it is in possession of unclaimed property belonging to Mr. Zane, and if the property consists of cash, it must state the amount. Ms. O’Connor may then obtain legal process or pursue judicial remedies, if necessary, to execute her judgment against the property.

79 So.3d at 106. The Department has since determined that the unclaimed property belonged to Zane, not O’Connor. As a result, the Department denied O’Con-nor’s claim to the funds. O’Connor then sought “judicial remedies ... to execute her judgment against the property,” id., which the Department resisted below and continues to resist in this appeal, claiming sovereign immunity.

The primary purpose of Chapter 717, however, is to return unclaimed property to its owners. Because Zane reneged on his legal obligations to pay O’Connor, and has failed to claim property held in the custody of the State, he forfeited his ownership interest. The trial court’s order below functions as a determination that the Department, as custodian, is relieved of its obligation to hold the funds for Zane. Further, the trial court’s orders throughout the post-dissolution period establish that O’Connor’s rights trump Zane’s ownership interest in the unclaimed accounts. These orders have given O’Con-nor “legal or equitable interest in the property” under section 717.101(18). Under these circumstances, where the State is acting in a custodial capacity, sovereign immunity does not bar her from claiming and obtaining legal ownership of what she is due. Consistent with O’Connor I and the post-dissolution orders throughout O’Connor’s plight, her claim to the unclaimed funds is now final and complete.

The Department rightly points out that sovereign immunity must be clearly and unequivocally waived. The Department’s theory, however, assumes this is a classic garnishment action in which a judgment creditor seeks to garnish sums, such as wages or salaries, earned by judgment debtors, which are paid by state entities. But this case is different in kind from previous sovereign immunity-garnishment cases because the state entity here is a custodian of the judgment debtor’s (unclaimed) property; it is not indebted in some way to Zane, the judgment debtor, for salaries or other funds it may owe him. O’Connor does not seek State funds yet to be tendered to Zane as a salary; rather, she seeks Zane’s unclaimed property that the State is holding for “safekeeping” per section 717.1201(1). The trial judge correctly recognized that the funds sought are akin to bank accounts, and that the writ of garnishment here is a one-time transaction for Zane’s accounts themselves, rather than an ongoing garnishment of wages or salary.

In this regard, Chapter 717 is a detailed mechanism for citizens to make claims to property held by the Department, property that is not the State’s. See § 717.1201(1). The ownership dispute here is not O’Conner versus the Department — a case in which sovereign immunity would apply absent waiver. Rather, the dispute is over which spouse is entitled to assets that serendipitously landed in the Department’s care. The dispute, and the Department’s conservatorship over the funds, has ended.

Florida’s strong public policy of treating child support arrearages differently from other debts reinforces this resolution of the matter. See Bacardi v. White, 463 So.2d 218, 222 (Fla.1985) (“This state has always had a strong public policy favoring the enforcement of both alimony and child support orders.”); Evans v. Evans, 595 So.2d 988, 990 (Fla. 1st DCA 1992) (“It is the very strong public policy of this state to require a parent to provide support for his or her children.”). That the Legislature has specifically required cooperation between the Department and child support enforcement authorities in section 409.25658(1) punctuates this point: “In a joint effort to facilitate the collection and payment of past due support, the Department of Revenue, in cooperation with the Department of Financial services, shall identify persons owing support collected through a court who are presumed to have unclaimed property held by the Department of Financial Services.” The statutory requirement that the Department work to “facilitate the collection and payment of past due support” with unclaimed property in its custody goes hand in glove with the trial court’s conclusions. This statute facilitates child support payment when an original owner comes forward to claim his or her property, but it does not foreclose other remedies when an owner, like Zane, does not claim his property. Nothing in the statute indicates a legislative intent to keep child support unpaid unless an owner comes forward. Indeed, subsection (5) states that the statute’s remedy is only “supplemental” and can be used “in conjunction with any other method of collecting support.” § 409.25658(5), Fla. Stat. While subsection (5) speaks to the Department of Revenue’s remedies, the overall legislative intent is that artifices to the effective enforcement of child support obligations must give way.

The Department suggests to the contrary, claiming that the only permissible release of unclaimed property to pay child support is when the debtor/former spouse had filed a valid claim under this statute. But the Legislature could not have intended to deny persons in O’Connor’s position — whose ex-spouses have fled the country and abandoned their property — a similar remedy. O’Connor is not required to wait for Zane to return to make a claim. What an odd result that would be, one that would create an incentive for ex-spouses to conceal their whereabouts and disengage further from the justice system.

The Department points out, as a public policy matter, that the State treasury will not get Zane’s unclaimed funds if O’Con-nor prevails (“if Florida unclaimed property is to be remitted to ‘missing owner’ judgment creditors, there will be less funds available to benefit the people of the State of Florida.”). But the thirst for funds for governmental purposes is unslakable, and not a recognized legal grounds to deprive O’Connor of the funds her ex-husband owes her and her family. The total proceeds from Zane’s unclaimed accounts will only covér about a third of the total arrearages Zane owes O’Connor for the care of their children and the sale of their marital property. Surely the State would prefer that these private funds go directly to satisfy Zane’s long-standing paternal obligations to his offspring for their personal upbringing — which may reduce the need for government assistance or services — than be deposited into a faceless general treasury fund for indeterminate purposes. Unclaimed property may ultimately become governmental property, but that does not foreswear the government’s primary obligation to return it to private hands.

In short, the Department’s assertion of immunity in this case is inconsistent with its custodial function under section 717.1201(1) and the framework for claiming property under Chapter 717. Sovereign immunity is not implicated when an original owner makes and prevails on a claim for unclaimed property; likewise, it is not implicated when a superior claim of ownership to unclaimed property is established by court orders, as O’Connor has established under Chapter 717. On these grounds, the trial court’s order denying the Department’s motion to dismiss and dissolve was proper.

B.

Next for review is section 61.12 which— although not a model in clarity — has been deemed sufficiently clear and unequivocal to waive sovereign immunity as to garnishment of wages. O’Connor argues that this waiver of sovereign immunity should extend to unclaimed property for which she holds a judgment. Section 61.12(1), which outlines the scope of the “monies or other things” that are subject to attachment or garnishment, states:

(1) So much as the court orders of the money or other things due to any person or public officer, state or county, whether the head of a family residing in this state or not, when the money or other thing is due for the personal labor or service of the person or otherwise, is subject to attachment or garnishment to enforce and satisfy the orders and judgments of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support; when the money or other thing sought to be attached or garnisheed is the salary of a public officer, state or county, the writ of attachment or garnishment shall be served cm the public officer whose duty it is to pay the salary, who shall obey the writ as provided by law in other cases. It is the duty of the officer to notify the public officer whose duty it is to audit or issue a warrant for the salary sought to be attached immediately upon service of the writ. A warrant for as much of the salary as is ordered held under the writ shall not issue except pursuant to court order unless the writ is dissolved. No more of the salary shall be retained by virtue of the writ than is provided for in the order.

(Emphasis added). This section is followed by section 61.12(2), which states:

(2) The provisions of chapter 77 or any other provision of law to the contrary notwithstanding, the court may issue a continuing writ of garnishment to an employer to enforce the order of the court for periodic payment of alimony or child support or both. The writ may provide that the salary of any person having a duty of support pursuant to such order be garnisheed on a periodic and continuing basis for so long as the court may determine or until otherwise ordered by the court or a court of competent jurisdiction in a further proceeding. Any disciplinary action against the employee by an employer to whom a writ is issued pursuant to this section solely because such writ is in effect constitutes a contempt of court, and the court may enter such order as it deems just and proper.

(Emphases added).

Read it its entirety, section 61.12 provides a clear and unequivocal waiver of sovereign- immunity for garnishment of salaries paid by the State; but it does not independently contain a clear waiver of immunity for writs to garnish the accounts at issue. The language in section 61.12(1), “when the money or other thing is due for the personal labor or service of the person or otherwise,” could be read broadly to include the monies now held in the unclaimed property accounts. § 61.12(1), Fla. Stat. (emphasis added). Language that follows in subsection (1), however, is limited to “when the money or thing sought to be attached or garnished is the salary of a public officer, state or county....” Id. (emphasis added). Further, section 61.12(2) is couched in terms of garnishment of salaries on a “periodic and continuing basis for so long as the court may determine....” § 61.12(2), Fla. Stat. While it does allow for garnishment for child support, “any other provision of law to the contrary notwithstanding,” id., the waiver of sovereign immunity extends only to salaries paid by the State (not the unclaimed property of third parties custodially held by the State). For this reason, section 61.12 does not provide a basis for the relief O’Connor seeks.

III.

In conclusion, O’Connor is entitled to the unclaimed property of her former spouse to satisfy his obligations flowing from the dissolution judgment entered against him. Sovereign immunity is unavailable for the Department to continue to hold this property in its custody and deprive its rightful possessor, O’Connor, of its ownership, which has been judicially decreed.

AFFIRMED.

SWANSON, J., and SJOSTROM, JONATHAN E., Associate Judge, concur.

      . Although the normal course would have been for O’Connor to appeal the Department's ownership determination, her actions are permissible under the law of the case set forth in O'Connor I, 79 So.3d at 106.

      . See, e.g., Hernando Cnty. v. Warner, 705 So.2d 1053, 1054 (Fla. 5th DCA 1998) (sovereign immunity shielded county from garnishment by judgment creditor when county owed judgment debtor contractual obligation and judgment debtor an independent contractor, not employee); Metro. Dade Cnty. v. United Guar. Residential Ins. Co. of N.C., 645 So.2d 1117, 1118 (Fla. 3d DCA 1994) (sovereign immunity barred garnishment of county employee salary because event prompting debt occurred prior to enactment of sovereign immunity waiver statute); G & J Invs. Corp. v. Fla. Dep’t of HRS, 429 So.2d 391, 391-92 (Fla. 3d DCA 1983) (sovereign immunity barred attempt to garnish Medicaid funds owed to judgment debtor by state agency); Wesley Constr. Co. v. Biscayne Constr. Inc., 341 So.2d 786, 786-87 (Fla. 3d DCA 1977) (sovereign immunity barred attempt to garnish county, which owed money to judgment debtor); Fla. Dep't of Transp. v. Gordon Bros. Concrete, Inc., 339 So.2d 1156, 1157 (Fla. 2d DCA 1976) (sovereign immunity barred attempt to garnish State, which owed money to judgment debtor); see also Palm Beach Cnty. Sheriff v. State, 854 So.2d 278, 282 (Fla. 4th DCA 2003) (sovereign immunity barred Sher-riff’s action for reimbursement from State for housing defendants that were supposed to be in DCF custody).


source: Caselaw Access Project

author: CONNER, J.

license: Public Domain

text:
    Twylah ADAMS, Appellant, v. ESTATE OF Thomas Dean HENDERSON, Sr., Appellee.
    No. 4D13-3209.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2015.

      Glenn J. Sneider of Sneider Law, Okeechobee, for appellant.
    D. John Rhodeback of Rooney & Rooney, P.A., Vero Beach, for appellee.
   CONNER, J.

Twylah Adams appeals the trial court’s order granting the Estate’s second and successive motion for relief from judgment. Adams raises two issues on appeal: (1) the trial court did not have jurisdiction to hear the Estate’s second motion; and (2) the trial court was barred by res judi-cata and collateral estoppel from granting the Estate’s second motion. We affirm without discussion the trial court’s rulings as to Adams’s first argument. We agree with Adams that granting the Estate’s second and successive motion was error and reverse because the trial court was without authority to grant relief.

Pertinent Facts and Trial Proceedings

Adams filed a complaint against the Estate for, among other causes of action, a resulting trust regarding the decedent’s home, in which she claimed an ownership interest. Adams’s claim was based on her allegation that she had been in a relationship with the decedent until his death, and during the period they lived together, she paid for improvements to his home and other expenses associated with the home as well.

After effectuating service on the Estate, Adams filed a motion for default based on the Estate’s failure to serve any response to the complaint. The clerk entered a default, and Adams filed a motion for final judgment pursuant to the default. The trial court entered a final judgment imposing a resulting trust.

Shortly thereafter, the Estate filed a motion to set aside the default and final judgment (“Motion One”), pursuant to Florida Rule of Civil Procedure 1.540(b). The grounds for Motion One were: (1) “through no fault of the [Estate] and without the [Estate]’s knowledge, the [Estate]’s prior attorney never filed an Answer or motion in this matter”; and (2) Adams “was not entitled to a resulting trust pursuant to the facts alleged in the Complaint,” citing to a quote from Zanakis v. Zanakis, 629 So.2d 181 (Fla. 4th DCA 1993). A hearing was held on Motion One.

Prior to receiving a written order on Motion One, the Estate filed a second motion to vacate the default and final judgment (“Motion Two”), also pursuant to Florida Rule of Civil Procedure 1.540(b). The grounds for Motion Two were: (1) Adams did not serve the Estate’s attorney with a notice of default before filing the motion, which it argued was required under the circumstances; and (2) the final judgment was void because Adams failed to state a cause of action for a resulting trust, again citing to the same quote from Zanakis as cited in Motion One.

On June 3, 2013, the trial court entered an order denying Motion One. On July 25, 2013, a hearing was held on Motion Two. At the hearing, Adams argued that the Estate was barred from making the arguments contained within its successive rule 1.540(b) motion based on res judicata. Subsequently, the trial court entered an order granting Motion Two “solely on the basis that [Adam]’s complaint failed to state a cause of action for resulting trust (Count I).” Adams appeals the order on Motion Two. •

Analysis

“Our standard of review of an order ruling on a motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of the trial court’s discretion.” J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008) (quoting Snipes v. Chase Manhattan Mortg. Corp., 885 So.2d 899, 900 (Fla. 5th DCA 2004)) (internal quotation marks omitted).

The Estate stated two grounds for relief in Motion One and two grounds in Motion Two. Although the first grounds asserted in both motions were different (excusable neglect in not filing an answer versus default was void due to lack of notice), the second grounds in both motions were substantively the same (the complaint failed to state a cause of action for a resulting trust).

Not only did the Estate use the same basic language as the second ground in both motions (“the Plaintiff was not entitled to a resulting trust pursuant to the facts alleged in the Complaint,” compared with “because it failed to state a cause of action”), the Estate also cited to the same case (Zanakis) and the same quotation within that case. The only potentially significant differences between the second ground in both motions is that the Estate contended that the judgment was “void” and used the phrase “failure to state a cause of action” in Motion Two, but did not use that term or phrase in Motion One. Although the Estate went a step further in Motion Two to assert the outcome of its contention (a “void” judgment), the basis of the ground was the same as in Motion One (failure to state a cause of action).

This court has long held that a trial court is without legal authority to entertain a second motion for relief from judgment which attempts to relitigate a matter settled by a prior order denying relief. Flagstar Bank, F.S.B. v. Cleveland, 87 So.3d 63, 65 (Fla. 4th DCA 2012) (citing Steeprow Enters., Inc. v. Lennar Homes, Inc., 590 So.2d 21, 23 (Fla. 4th DCA 1991)) (“This court has long held, however, that ‘[a] trial court is without jurisdiction to entertain a second motion for relief from judgment which attempts to relitigate matters settled by a prior order denying relief.’”). Because the trial court denied Motion One, which sought relief from judgment on the ground that the complaint failed to state a cause of action, the trial court was without authority to entertain the same ground in Motion Two.

We are satisfied that the trial court granted Motion Two because it believed the final judgment was void, thus constituting an exception to the general principle stated in Flagstar Bank. See State Dep’t of Transp. v. Bailey, 603 So.2d 1384, 1387 (Fla. 1st DCA 1992) (affirming trial court granting second rule 1.540(b) motion as to a portion of the final judgment entered where the trial court did not have subject matter jurisdiction, finding that portion of the judgment was void). Unfortunately, the trial court did not have the benefit of our recent decision in Condominium Ass’n of La Mer Estates, Inc. v. Bank of New York Mellon Corp., 137 So.3d 396, 398 (Fla. 4th DCA 2014), because La Mer Estates was decided after the trial court issued its order on Motion Two. In La Mer Estates, we held that a default judgment based on a complaint that failed to state a cause of action is voidable, not void. Id. at 398.

We are mindful that the judgment entered below was based on the entry of a default after there was a failure to plead. Florida law “favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits.” Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1104 (Fla. 4th DCA 1985). However, we do not find the default judgment in this case is the result of an unjust application of the legal principle limiting the authority of the trial court to grant relief from judgment in a second rule 1.540(b) motion as stated in Flagstar Bank.

Disposition

We affirm the trial court’s order on the first issue argued on appeal, but reverse the trial court’s order on the second issue and remand for the trial court to enter an order denying Motion Two.

Affirmed in part, reversed in part and remanded.

WARNER and LEVINE, JJ., concur.

      . Since there were no transcripts provided on appeal from the hearing on Motion One, it is unknown whether the trial court made an oral ruling as to the motion prior to entering its written order.

      . We do not view Motion Two to be an amendment to Motion One because the first ground in both motions is different. Moreover, the Estate never argued that Motion Two was intended as an amendment to Motion One.

      . Although our prior decisions have asserted the circuit court is “without jurisdiction to entertain a second motion for relief from judgment which attempts to relitigate matters settled by a prior order denying relief,” use of the term “jurisdiction" has been in the context of what this District has referred to a "case jurisdiction,” or what other courts have referred to as "continuing jurisdiction” or "procedural jurisdiction.” That is, the authority of the court to act in a particular case. See T.D. v. K.D., 747 So.2d 456, 457 n. 2 (Fla. 4th DCA 1999); 14302 Marina San Pablo Place SPE, LLC v. VCP-San Pablo, Ltd., 92 So.3d 320 (Fla. 1st DCA 2012) (Ray, J„ concurring) (discussing the various terms used to describe "jurisdiction” as the authority of the court to act). It is more precise to speak of the legal authority of the trial court to act, since rule 1.540 clearly states “the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed by these rules or by an independent action.” Although the rule does not explicitly address successive motions, it is axiomatic that successive motions alleging the same grounds cannot be allowed under rule 1.540 if there is going to be finality to litigation.
      'The desired goal of obtaining finality in the litigation process is perhaps the reason courts have imprecisely applied the concept of res judicata in interpreting the application of rule 1.540. For example, the quote from Flagstar Bank traces back to Atlas v. City of Pembroke Pines, 441 So.2d 652, 652 (Fla. 4th DCA 1983), and one citation of authority in Atlas for the quoted language is Perkins v. Salem, 249 So.2d 466, 467 (Fla. 1st DCA 1971), where the court wrote “[t]he [trial] court’s denial of the initial motion for relief [from judgment] was therefore res judicata as to all grounds assigned as a basis for relief in the second and successive motion.” See also Gen. Computer Servs., Inc. v. AP SC River Oaks LLC, 130 So.3d 722 (Fla. 3d DCA 2013) (explaining that res judicata bars successive motions for relief from judgment where grounds for relief were similarly asserted in the first motion).

        Res judicata applies where there is a subsequent action. See Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001). It does not apply within the same action. Therefore, appellate decisions should more precisely state that the principles of res judi-cata are being applied by analogy to the interpretative analysis of rule 1.540 because the goals and rationale of res judicata and rule 1.540 are the same: finality of litigation.

      . Although the trial court did not specifically make reference to the ground asserting the failure to state a cause of action in the order denying Motion One, the trial court stated in the order, “Rule 1.540 was intended to provide relief from judgments under a limited set of circumstances; it was not intended as a substitute for appellate review of alleged judicial errors,” which we construe as a ruling on the ground asserting the failure to state a cause of action. Moreover, the trial court ended its order by noting that the Estate raised a ground at the hearing that was not asserted in the motion and the oral ground was without merit. Thus, we are satisfied, even without a transcript of the first hearing, that the trial court ruled on all grounds raised in Motion One.


author: LOGUE, J.

text:
    MICCOSUKEE TRIBE OF INDIANS OF SOUTH FLORIDA, etc., Appellant, v. Carlos BERMUDEZ, et al., Appellees.
    No. 3D13-2153.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.

      Bernardo Roman III, Miami, for appellant.
    Ramon M. Rodriguez, P.A., and Ramon M. Rodriguez; Maria L. Rubio, Miami, for appellee Carlos Bermudez.
    Before SALTER, LOGUE, and SCALES, JJ.
   ON MOTION TO REVIEW ORDER TAXING COSTS

LOGUE, J.

In this matter, we consider whether a court registry fee charged by the clerk of the circuit court qualifies as a taxable cost under Florida Rule of Appellate Procedure 9.400(a)(4). We hold that it does.

FACTS

This case stems from a tragic automobile accident in which a car, driven by one member of the Miccosukee Tribe of Indians of South Florida and owned by another member of the Tribe, killed Carlos Ber-mudez’s wife and injured his son. In 2009, a judgment pursuant to a jury verdict was entered individually against the two Tribal members and for Bermudez. Several years later, after the judgments proved uncollectable, Bermudez filed a motion to add the Tribe as a defendant. His theory was that the Tribe was liable to pay the judgments because it had voluntarily assisted the defendants with legal fees and advice during the trial. In 2013, the trial court agreed and entered a judgment in the amount of $4.1 million against the Tribe and for Bermudez.

Bermudez immediately sought writs of garnishment on Tribal accounts held by a private bank. The Tribe appealed the judgment and sought a stay of Bermudez’s attempts to collect the judgment. In response, Bermudez maintained that the Tribe was required to post a bond as provided by Floi'ida Rule of Appellate Proee-dure 9.310 in order to secure a stay of his collection efforts. The trial court properly required the Tribe to post a bond. The Tribe duly posted bond by depositing the full amount required by rule 9.310 with the clerk of the circuit court. As required by law, the clerk charged the Tribe $71,961.59 as a court registry fee for receiving money in the registry of the court. § 28.24, Fla. Stat. (2014). When the merits of the appeal were reviewed, this court reversed, finding no legal authority to support the theory that a third party becomes liable for a judgment merely because it assisted the defendant in maintaining its defense. Miccosukee Tribe of Indians of S. Fla. v. Bermudez, 145 So.3d 157, 158 (Fla. 3d DCA 2014). After prevailing, the Tribe moved to tax appellate costs, including the $71,961.59 court registry fee. The trial court included the fee in the costs that were taxed. Bermudez appealed.

ANALYSIS

Depositing money with the clerk is one of the two methods for posting bond specifically authorized by rule 9.310(c)(1), which defines a “good and sufficient bond” as either (a) a bond “with a principal and a surety company authorized to do business in the State of Florida” or (b) “cash deposited in the circuit court clerk’s office.’-’ “Costs” awarded to the prevailing party on appeal include the following: (1) fees for filing and service of process; (2) charges for preparation of the record; (3) bond premiums; and (4) other costs permitted by law. Fla. R. App. P. 9.400(a).

Bermudez contends that the court registry fee does not fall within the category of “bond premiums” established by 9.400(a)(3). Without reaching that issue, we focus our analysis on the category of “other costs permitted by law” established by 9.400(a)(4). The phrase “by law” when used in the Florida Constitution, statutes, or rules of court generally means by enactment of the Florida Legislature. See generally Grapeland Heights Civic Ass’n v. City of Miami, 267 So.2d 321, 324 (Fla.1972) (defining “law” as used in the Florida Constitution as “enact[ed] by the State Legislature”). The Legislature has provided by law that costs include “[t]he reasonable premiums or expenses paid on all bonds or other security furnished by such party.” § 57.071(l)(a), Fla. Stat. (2014). It has also provided by law that, if the bond is posted by depositing cash with the clerk of the circuit court, the clerk must charge a court registry fee based on a statutory formula. § 28.24.

We accordingly hold that the court registry fee qualifies as “other costs permitted by law” under rule 9.400(a)(4) because depositing the cash with the clerk is one option to post a good and sufficient bond specifically provided by rule 9.310(c)(1) and the fee amount set by the Legislature is a reasonable expense paid by a party to furnish security under section 57.071(l)(a). We are unable to discern any reason why the Florida Rules of Appellate Procedure would provide two methods for posting a bond, yet allow recovery of only the costs of paying the fee charged by a private surety, but not the statutorily-required fee charged by the clerk.

Affirmed.

      . This case appears before us for the eleventh time. Miccosukee Tribe of Indians of S. Fla. v. Bermudez, 145 So.3d 157 (Fla. 3d DCA 2014); Bermudez v. Bert, 108 So.3d 1099 (Fla. 3d DCA 2013); Bermudez v. Bert, 122 So.3d 377 (Fla. 3d DCA 2013); Miccosukee Tribe of Indians of Fla. v. Tein, 97 So.3d 234 (Fla. 3d DCA 2012); Bert v. Bermudez, 95 So.3d 274 (Fla. 3d DCA 2012); Miccosukee Tribe of Indians of Fla. v. Bermudez, 92 So.3d 232 (Fla. 3d DCA 2012); Bert v. Bermudez, 86 So.3d 1127 (Fla. 3d DCA 2012); Bermudez v. Bert, 37 So.3d 374 (Fla. 3d DCA 2010); Billie v. Bermudez, 26 So.3d 591 (Fla. 3d DCA 2010); Bermudez v. Bert, No. 3D09-475 (Fla. 3d DCA Oct. 7, 2009).


author: ROTHENBERG, J.

text:
    Harvey ABRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-755.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.

      Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ROTHENBERG, J.

Harvey Abraham (“the defendant”) appeals his convictions and sentences for leaving the scene of an accident causing death and tampering with physical evidence. The defendant contends on appeal that (1) the trial court erred by denying the motion to suppress his statements^ which the defendant claims were procured after he was unlawfully seized by the police; and (2) he was deprived of a fair trial when two of the State’s witnesses improperly testified regarding the ultimate issue of whether the defendant knew he had struck a person with his vehicle when he left the scene of the accident. Because we find that the seizure of the defendant was supported by probable cause and the ultimate opinion testimony was not fundamental error, we affirm.

The defendant struck and killed eleven-year-old A.V. with his F-150 pickup truck on the evening of January 8, 2009, and then subsequently fled the scene of the accident. A.V. was approximately four feet, seven inches tall, wearing a pink jacket, and had been standing in the median between roadways before darting out in front of the defendant’s vehicle. Experts agreed that the defendant would not have been physically able to stop his vehicle in time to avoid striking A.V. when she stepped into the roadway, making the collision itself a tragic accident. The defendant’s failure to stop at the scene after striking A.V., however, converted the incident from an unfortunate tragedy into a crime.

After the accident, Detective Raul Hernandez, along with several Miami-Dade Police Department officers, responded to the scene and began investigating the physical evidence and interviewing witnesses to determine the identity of the driver, which was at that point unknown. Several witnesses and tipsters informed Detective Hernandez that the vehicle that struck A.V. was a white or gray Ford F-150 pickup truck and that the driver had slowed down after striking A.V., did not stop, and then sped away.

Approximately one week later, on January 16, 2009, Detective Hernandez received a tip that a white F-150 pickup truck with substantial damage to its grill and hood was parked on the side of the road in South Miami. Detective Hernandez investigated and confirmed that the vehicle was in fact the one that had struck and killed A.V. by matching pieces of the truck’s front grill left at the scene of the accident to pieces missing from the F-150 pickup truck and by noting pink fibers stuck to the front of the F-150 that appeared to have come from the pink jacket A.V. was wearing at the time of the accident.

The F-150 pickup truck was parked directly in front of an auto body shop owned by Mr. Morejon, who told Detective Hernandez that the defendant had brought the truck to him for repairs on January 9, 2009, the day after the fatal accident that killed A.V. Mr. Morejon also told Detective Hernandez that the defendant had claimed someone had hit the defendant’s truck after he parked it on the side of the road — a story that could not be true since Detective Hernandez knew the truck had been involved in a hit and run less than a day before the defendant took it to Mr. Morejon. After speaking to Mr. Morejon, Detective Hernandez called for backup and asked Mr. Morejon to contact the defendant in order to get him to come to the body shop. Mr. Morejon obliged.

The defendant agreed to meet Mr. Mo-rejon at his garage, and, upon the defendant’s arrival, Detective Hernandez approached the defendant and told him he was investigating a hit and run and that he would like to speak with the defendant about it. The defendant agreed to go with Detective Hernandez to the police station. Detective Hernandez stated that the defendant was most likely handcuffed prior to being placed in the officer’s vehicle for safety reasons because there was no “cage” between the front and back seat of his unmarked police vehicle.

Upon arriving at the police station, the defendant was taken to a small interrogation room and shackled to the floor. Detective Hernandez then read the defendant his Miranda rights, and the defendant signed a Miranda rights waiver form. After speaking with Detective Hernandez, the defendant confessed that he was the one driving the vehicle at the time it struck A.V., that he subsequently returned to the scene of the accident and saw evidence of what had occurred, and that he told Mr. Morejon that another driver had hit his truck after he had parked it on the street. However, the defendant claimed that he had not known he had hit a person until he was arrested. After the defendant’s statement, Detective Hernandez formally arrested and charged the defendant with leaving the scene of an accident causing death, careless driving, and tampering with physical evidence.

The defendant moved to suppress all statements made during his interview with the police as fruit of an illegal arrest. At the suppression hearing, the defendant argued that he was de facto arrested at the time he was handcuffed and taken into custody at Mr. Morejon’s garage and that the arrest was not supported by probable cause because Detective Hernandez had no way of knowing who was driving the F-150 pickup truck at the time of the accident. The trial court denied the motion to suppress the statements, finding that the confinement of the defendant prior to the Miranda warnings being administered and the formal arrest of the defendant was supported by probable cause.

At trial, the defendant stipulated to all elements of the crimes charged except for the element that he knew or should have known that he had hit a person. The defendant’s sole argument at trial was that he knew he had hit something, perhaps a curb or an animal, but that he did not know that the “something” he had hit was a person. He therefore claimed that he did not have the requisite intent to have violated the statute requiring motorists to remain at the scene of an accident causing injury or death. See § 316.027, Fla. Stat. (2009).

At trial, the State introduced the defendant’s statement, in which he confessed that he was afraid that he may have hurt someone and that he did not report the accident because he was afraid it would destroy his family. The State also introduced the statement the defendant made to Mr. Morejon wherein he told Mr. More-jon that someone else had hit his truck while it was parked — an obvious lie — as well as the physical evidence and testimony from several officers. Detective Hernandez and Detective Perez, an expert specializing in recreating accident scenes, testified that, in them opinion, the defendant would have known he had hit a person when he struck A.V. The jury ultimately convicted the defendant of both charged offenses, and the defendant was sentenced to six years in state prison. This appeal followed.

The defendant’s primary argument on appeal is that although he was not “formally arrested” until after his interrogation at the police station, he was effectively under arrest for Fourth Amendment purposes when the officers took him into custody at Mr. Morejon’s garage and there was no probable cause to support his arrest at that time because Detective Hernandez had no way of knowing who was driving the vehicle at the time of the accident. Further, the defendant contends that if there was no probable cause for the arrest, the arrest was an illegal seizure, and any evidence obtained therefrom, including the defendant’s confession, was inadmissible. Although we agree with the defendant that his pre-Miranda confinement was the functional equivalent of an arrest, no Fourth Amendment violation occurred because the confinement was supported by probable cause.

The determination of whether a defendant has been arrested or seized rests on “whether, based on the totality of the circumstances, a reasonable person would feel that his freedom of movement has been restricted to a degree associated with an actual arrest.” Caldwell v. State, 41 So.3d 188, 197 (Fla.2010) (citing Ramirez v. State, 739 So.2d 568, 573 (Fla.1999)). In other words, the determinative issue is whether a reasonable person in the defendant’s position would feel free to break contact with the police and leave of his own volition. See Popple v. State, 626 So.2d 185, 186 (Fla.1993) (explaining the three levels of police-citizen encounters); D.H. v. State, 121 So.3d 76, 79-80 (Fla. 3d DCA 2013) (analyzing the same). Here, although the defendant’s initial contact with law enforcement was a consensual encounter, once he was handcuffed, placed in the back of the officer’s car, taken to the police station, and placed in a locked interrogation room and shackled to the floor, the defendant was seized for Fourth Amendment purposes. Certainly based on the totality of these circumstances, no reasonable person would feel free to leave.

The Fourth Amendment is not violated, however, if the seizure of the defendant was supported by probable cause. Popple, 626 So.2d at 186; D.H., 121 So.3d at 80. Probable cause exists where the totality of the circumstances indicates that it is more likely than not the defendant has committed a crime. State v. Hankerson, 65 So.3d 502, 506 (Fla.2011); Elliott v. State, 597 So.2d 916, 918 (Fla. 4th DCA 1992). We find that the evidence submitted by the State was legally sufficient to establish probable cause in this case.

Prior to the seizure of the defendant, Detective Hernandez had determined that someone driving a white or gray F-150 pickup truck had struck and killed A.V. and that the driver had fled the scene of the accident without stopping. He had also determined that the F-150 pickup truck in front of Mr. Morejon’s garage was the vehicle that had been involved in the accident because it had damage to the grill and hood consistent with the accident that caused A.V.’s death; pieces of the F-150 recovered from the scene of the accident matched the missing pieces from the F-150 found in front of Mr. Morejon’s garage; and strands of pink fiber that seemed to have originated from the jacket A.V. was wearing at the time of the accident were still stuck to the F-150’s grill and bumper. Additionally, after speaking to Mr. Morejon, Detective Hernandez learned that the defendant owned the F-150 involved in the accident, he had dropped the F-150 off for repairs the day after A.V. was killed, and the defendant had told Mr. Morejon that he had parked the truck on the street the night before and another driver had struck it. The defendant’s statement to Mr. Morejon the day after the accident placed the defendant, not some other driver, in possession of the F-150 when it was damaged, and Detective Hernandez knew that the damage occurred while it was being driven, not after the defendant parked it. Based on the totality of the evidence, it is clear that Detective Hernandez had probable cause to arrest the defendant for the crimes for which he was ultimately charged and convicted. The trial court therefore did not err by denying the defendant’s motion to suppress his statement..

The defendant has also raised the argument that Detectives Hernandez and Perez provided improper opinion testimony regarding whether the defendant knew or should have known he had struck a person when he hit A.V. However, as the defendant’s appellate counsel candidly concedes, because the defendant’s trial counsel did not object to this testimony, the defendant must establish that fundamental error occurred to be entitled to a new trial. See J.B. v. State, 705 So.2d 1376, 1878 (Fla.1998) (holding that unpreserved error may be raised on appeal only if it is so fundamental that it “goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process”). The record reflects that the opinion testimony provided by Detective Perez was not error, let alone fundamental error, since he was permitted to render his opinion on that issue as an accident reconstruction expert, and Detective Hernandez’s testimony, if error, was not fundamental error.

Affirmed.

      . These fibers were subsequently sent to a police laboratory, and testing confirmed that the fibers originated from A.V.’s pink jacket.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The careless driving charge was dropped before trial and is not at issue in this appeal.


author: PER CURIAM.

text:
    The MEADOWS OF MIRAMAR HOMEOWNERS ASSOCIATION, NO. 1, INC., a Florida non-profit corporation, Appellant, v. Luis M. RODRIGUEZ and Unknown Tenant, Appellees.
    No. 4D13-3206.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2015.
    Rehearing Denied Feb. 18, 2015.
    Alan Schwartzseid of Kaye Bender Rembaum, P.L., Pompano Beach, for appellant.
    Winsor Daniel Jr., Pembroke Pines, for appellee.
   PER CURIAM.

Affirmed. See Saar v. Wellesley at Lake Clarke Shores Homeowners Ass’n, 68 So.3d 417 (Fla. 4th DCA 2011) (reversing foreclosure judgment where the claim of lien overstated the amount due).

WARNER, CIKLIN and GERBER, JJ., concur.


text:
    Alyssia SKINNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1045.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2015.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm in all respects this Anders appeal. However, we remand with instructions to correct a scrivener’s error in the order on fines and costs, erroneously reflecting a $300 public defender fee, to bring the written judgment into conformity with the trial court’s oral pronouncement at sentencing imposing a $100 public defender fee. See Garcia v. State, 148 So.3d 848, 848 (Fla. 5th DCA 2014); Croskey v. State, 71 So.3d 199, 199 (Fla. 5th DCA 2011).

AFFIRMED and REMANDED for correction of scrivener’s error.

LAWSON, BERGER and WALLIS, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Timothy A. COMBS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-4266.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2015.
    Timothy A. Combs, Crawfordyille, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 30, 2012, judgment and sentence in Case Nos. 05-2010-CF-63296 and 05-2011-CF-21932, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER and BERGER, JJ., concur.


text:
    Roger R. LAMKIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-4335.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2015.
    Michael A. Graves, Public Defender, and Pamela J. Bauman, Assistant Public Defender, Inverness, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the September 12, 2014, VOP judgment and sentence in Case No. 1999-CF-175, in the Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, COHEN and WALLIS, JJ., concur.


text:
    Altory A. KIZER, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-757.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2015.
    Altory A. Kizer, Bristol, pro se. .
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Altory Kizer appeals from an order denying his postconviction motion filed pursuant to Florida Rule Criminal Procedure 3.850. The State correctly concedes that we should reverse the denial of Ground 1 of Kizer’s motion and remand for a new hearing because Kizer was deprived of the assistance of his retained attorney at that hearing. We also reverse the summary denial of Ground 3 because the court failed to give Kizer one opportunity to amend that facially insufficient claim. See Spera v. State, 971 So.2d 754, 761 (Fla.2007). Finally, we affirm the summary denials of Grounds 2, 4, and 5 as being conclusively refuted by the record (Grounds 2 and 5) or conceded (Ground 4).

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

LAWSON, COHEN and BERGER, JJ., concur.


text:
    John COATES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5785.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2015.
    John Coates, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

BENTON, WETHERELL, and SWANSON, JJ., concur.


text:
    Nelson DIAZ, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, etc., Appellee.
    No. 5D14-2510.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2015.
    Nelson Diaz, Kissimmee, pro se.
    Lauren E. Plaisted of the Law Offices of Daniel C. Consuegra, P.L., Tampa, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

TORPY, C.J., PALMER, and LAWSON, J.J., concur.


text:
    Kristy S. HOLT, Appellant, v. CALCHAS, LLC, Appellee.
    No. 4D13-2101.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.

      Philippe Symonovicz of Law Offices of Philippe Symonovicz, Fort Lauderdale, for appellant.
    Pascale Achille and Brian S. Vidas of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for appellee.
   On Motion for Rehearing

CONNER, J.

We grant the Appellant’s motion for rehearing, withdraw our opinion dated November 5, 2014, and issue the following in its place: Kristy S. Holt appeals the trial court’s order granting final judgment in favor of Calchas, LLC (“the bank”). Holt argues that the trial court erred by: (1) admitting into evidence a copy of the promissory note, mortgage, and assignment of mortgage; (2) denying her motion to dismiss for the bank’s failure to prove compliance with paragraph twenty-two of the mortgage; and (3) admitting into evidence the payment history over her hearsay objection. We find no merit in the first argument and affirm without discussion, but agree with the second and third arguments and reverse and remand with instructions to dismiss the case for failure to prove a prima facie case at trial.

The Pertinent Trial Proceedings

Wells Fargo Bank, N.A., the original plaintiff, filed a mortgage foreclosure complaint. Holt filed various amended affirmative defenses, including the bank’s failure to give the contractually required notice of default, opportunity to cure, and acceleration of the amount due. During the litigation, there were two substitutions of party plaintiffs. The first substituted Consumer Solutions 3, LLC for Wells Fargo, and the second substituted the bank for Consumer Solutions. Eventually, a trial was conducted.

The trial proceeding was unusual. The transcript of the trial for the record on appeal begins in the middle of the bank’s direct examination of Holt. Apparently, the trial judge who began the trial recused herself shortly after the trial began. On the same day, after a recess, a second judge took over the trial and testimony resumed from where the trial stopped when the first judge recused herself. Additionally, the attorney for Holt, who represented her while the first judge was presiding, also left the trial, and a new attorney began representing her. The transcript for the portion of the trial conducted by the first judge was not provided on appeal.

During the portion of the trial before the second judge, the bank’s asset manager testified, and the bank sought to enter Holt’s payment history into evidence under the business records exception to the hearsay rule. Holt objected to the admission of the payment history and proceeded to voir dire the asset manager regarding his personal knowledge of the document.

The asset manager admitted that he worked for the bank, but was testifying regarding how Consumer Solutions handled the loan before the bank acquired it. He testified that he never worked for Consumer Solutions and did not know who transmitted the records he was testifying about and had never seen Consumer Solution’s policy manual. He further testified: “And doing — I believe that they — the way I’ve done business in the past I believe they do things correctly.” He testified substantially the same with regard to his knowledge about how Wells Fargo previously handled the loan and admitted he never worked for Wells Fargo. At the end of the voir dire, Holt objected to the admissibility of the payment history on the basis of hearsay. Holt’s objection was overruled.

After the bank rested its case, Holt moved to dismiss the action on the basis that the bank did not provide any evidence that it complied with paragraph twenty-two of the mortgage. Paragraph twenty-two required that

the [ljender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument.... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by Judicial proceeding and sale of the Property.

The bank responded that there were at least two affidavits in the court file stating that it complied with paragraph twenty-two. However, the record shows that the affidavits were not admitted as evidence at the time the bank rested its case-in-chief. Holt objected to the affidavits being considered, and argued that, even if the trial court took judicial notice of the court file containing the affidavits stating that paragraph twenty-two was complied with, the court could not take judicial notice of the fact that the notice was mailed. The trial court implicitly overruled the objection and denied the motion to dismiss by granting the judgment. Holt argues that the trial court judge erred in admitting the payment history over her objection and in denying her motion to dismiss. We agree.

Legal Analysis

The standard of review for eviden-tiary rulings is abuse of discretion. Salazar v. State, 991 So.2d 364, 373 (Fla.2008). The standard of review for denial of a motion for involuntary dismissal at trial is de novo. See Sheehan v. Allred, 146 So.2d 760, 764 (Fla. 1st DCA 1962) (“By whatever name it is called, [a motion for a directed verdict] is essentially a procedural device by which an issue made by the pleadings is withdrawn from the jury’s consideration when the evidence establishes without conflict that the moving party is entitled to judgment on the issue as a matter of law.") (emphasis added); see also Charlotte Asphalt, Inc. v. Cape Cave Corp., 406 So.2d 1234, 1236 (Fla. 2d DCA 1981) (citing Hartnett v. Fowler, 94 So.2d 724 (Fla.1957)) (explaining that motions for directed verdict in jury cases or involuntary dismissal in nonjury cases are governed by the same principles).

Payment History Hearsay Objection

Holt argues that the asset manager was not able to provide the proper foundation to establish that the payment history was admissible under the business records exception to the hearsay rule.

Section 90.803(6)(a), Florida Statutes (2013), provides:

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.

§ 90.803(6)(a), Fla. Stat. (2013). The elements to prove that evidence is admissible under the business records exception are:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael v. State, 993 So.2d 952, 956 (Fla.2008).

Holt cites to Glarum v. LaSalle Bank National Ass’n, 83 So.3d 780 (Fla. 4th DCA 2011), to support her argument that the witness was not able to lay the proper foundation for the business records exception. In Glarum, we reversed a trial court’s order granting summary judgment in favor of a bank where the evidence of the amount of money owed by the borrowers was deemed inadmissible under the business records exception. Id. at 783. There, the witness who testified regarding the amount owed by the borrowers stated that he “did not know who, how, or when the data entries were made into [the previous mortgage holderjs system. He could not state if the records were made in the regular course of business.” Id. at 782. Since the witness could not provide the necessary information to lay the foundation for the business records exception, we determined the document constituted inadmissible hearsay. Id. at 783.

Subsequently, we distinguished the facts of Glarum in Weisenberg v. Deutsche Bank National Trust Co., 89 So.3d 1111 (Fla. 4th DCA 2012). In Weisenberg, we held that, “[u]nlike in Glarum, the deposition excerpts show that [the affiant] knew how the data was produced” and “[h]er testimony demonstrated that she was familiar with the bank’s record-keeping system and had knowledge of how the data was uploaded into the system.” Weisenberg, 89 So.3d at 1112.

Additionally, the Second District reversed a trial court’s ruling that evidence was inadmissible under the business records exception in WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So.2d 230, 233 (Fla. 2d DCA 2005). There, the Second District held that a document which contained the amount of money owed on a loan was admissible under the business records exception even where the testimony as to the amount owed was based on information from a bank that previously held the loan. Id. at 232-33. The plaintiffs witness testified that it was part of his duties to oversee the collection of the loans that the bank purchased, and that the initial numbers he used in his calculations were provided by the previous bank. Id. at 233. However, the witness also testified “that while he did not know the specific person at [the previous bank] who would have put information into the [previous bank’s] system, he knew how the bank loan accounting systems worked and that the procedures were ‘bank-acceptable accounting systems.’ ” Id. Additionally, the witness testified that, although the original numbers WAMCO used for calculations came from the previous bank, WAMCO had a process “use[d] to verify the accuracy of the information received in connection with the loan purchases.” Id. (emphasis added). The witness explained that, when WAMCO first received a loan, the information goes into its system and employees go over the files to see if anything “seemfed] out of line.” Id.

Although the instant case has some similarity to WAMCO iri that a witness ,associated with a subsequent note holder testified about loan information kept by a previous note holder and loan data systems, the difference in WAMCO is that, there, the -witness testified that the current note holder had procedures in place to check the accuracy of the information that it received from the previous note holder. The witness in the instant case did not testify that the bank had these types of mechanisms in place for checking .the accuracy of the numbers from Wells Fargo or Consumer Solutions. With this type of testimony missing, it is unknown whether the asset manager had personal knowledge as to the accuracy of the numbers, unlike the testimony in WAMCO.

This case is more similar to the First District’s decision in Hunter v. Aurora Loan Services, LLC, 137 So.3d 570 (Fla. 1st DCA 2014). In Hunter, a note and mortgage was assigned by one bank, as the initial note holder, to another bank. Id. At trial, a witness who worked for the current note holder, but who never worked for the initial note holder, attempted to lay the foundation for the introduction of records pertaining to prior ownership and transfer of the note and mortgage as business records. Id. The witness testified that based on his dealings with the original note holder, the original note holder’s business practice regarding the transfer of ownership of loans was standard across the mortgage industry. Id. at 572. He could not testify, based on personal knowledge, who generated the information in the documents or where the person received the information. Id. He also testified, in a general fashion and without any specifics, that some of the documents sought to be introduced were generated by a computer program used across the industry and that a records custodian for the loan servicer was the person who usually inputs the information contained in the documents. Id. The trial court admitted the documents into evidence. Id.

The court in Hunter observed that “[w]hile it is not necessary to call the individual who prepared the document, the witness through whom a document is being offered must be able to show each of the requirements for establishing a proper foundation.” Id. at 573 (quoting Mazine v. M & I Bank, 67 So.3d 1129, 1132 (Fla. 1st DCA 2011)). The First District held that the witness’s “testimony failed to establish the necessary foundation for admitting [the documents] ... into evidence under the business records exception.” Id. The First District also held that:

Absent such personal knowledge, [the witness] was unable to substantiate when the records were made, whether the information they contain derived from a person with knowledge, whether [the original note holder] regularly made such records, or, indeed, whether the records belonged to [the original note holder] in the first place. [The] testimony about standard mortgage industry practice only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing.

Id. (emphasis added).

In the instant case, the asset manager testified that he knew about the record keeping practices of Wells Fargo and Consumer Solutions because both companies appeared to do things within “the generally accepted servicing practice,” according to their records. The witness did not identify any particular record-keeping system used by either Wells Fargo or Consumer Solutions, and he did not testify he was personally familiar with any record-keeping system used by either prior note holder. The issue is whether the knowledge of common standards and practices is enough to satisfy the requirements to lay the proper foundation for the business records exception.

As the First District held in Hunter, a witness’s general testimony that a prior note holder follows a standard record-keeping practice, without discussing details to show compliance with section 90.803(6), is not enough to establish a foundation for the business records exception. When the foundation for the business records exception is sought through a subsequent note holder for documents containing electronic records of loan payments made to a prior note holder, the foundation must demonstrate compliance with section 90.803(6) based on personal knowledge.

As stated within the statute itself, one way to demonstrate compliance with section 90.803(6)(a) based on personal knowledge is the use of the self-authentication rules contained within section 90.902(11), Florida Statutes (2013), which states:

(11) An original or a duplicate of evidence that would be admissible under s. 90.803(6), which is maintained in a foreign country or domestic location and is accompanied by a certification or declaration from the custodian of the records or another qualified person certifying or declaring that the record:
(a) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters;
(b) Was kept in the course of the regularly conducted activity; and
(c) Was made as a regular practice in the course of the regularly conducted activity,
provided that falsely making such a certification or declaration would subject the maker to criminal penalty under the laws of the foreign or domestic location in which the certification or declaration was signed.

§ 90.902(11), Fla. Stat. (2013). When the current note holder produces at trial a certification in accordance with section 90.902(11) as to the payment history maintained by each previous note holder, and then provides a witness to authenticate the records attributable to the current note holder, the records of payment history should be admissible. Such a procedure would assure compliance with all of the requirements for admission of a business record which relies in part on records from a prior note holder. The procedure would also satisfy the personal knowledge requirement for records kept by the previous note holder.

A subsequent note holder can also provide testimony consistent with that which was approved by the Second District in WAMCO, where the current note holder had procedures in place to check the accuracy of the information it received from the previous note holder.

We stress, however, that these examples of permissible methods of satisfying the business records exception are not exhaustive. As long as the bank can provide sufficient testimony to lay the proper foundation, payment history documents should be admitted into evidence.

Since the bank in this case did not provide information sufficient to satisfy the business records exception, the trial court erred by admitting the payment history into evidence. Without sufficient evidence to determine the amount due under the note and mortgage, the trial court erred in entering a foreclosure judgment in favor of the bank. If this was the only error, we would reverse and remand for the trial court to take further evidence, citing Sas v. Fed. Nat’l Mortg. Ass’n, 112 So.3d 778, 779-80 (Fla. 2d DCA 2013) (remanding “for further proceedings to properly establish the amounts allegedly due and owing” where the Second District determined that the trial court erred in allowing a witness to testify regarding the contents of a business record to prove the amount owed over a hearsay objection). However, due to the error discussed below, we remand for dismissal; thus, further evidence is not appropriate.

Compliance With A Condition Precedent

Paragraph twenty-two of the mortgage required that notice of default and opportunity to cure had to be given before the bank was permitted to accelerate the amount due on the note. The trial court took judicial notice of an affidavit in the court file as evidence of compliance with paragraph twenty-two. We agree with Holt’s argument that the evidence was insufficient to show compliance with paragraph twenty-two. As stated by our supreme court:

Although a trial court may take judicial notice of court records ... it does not follow that this provision permits the wholesale admission of hearsay statements contained within those court records. We have never held that such otherwise inadmissible documents are automatically admissible just because they were included in a judicially noticed court file. To the contrary, we find that documents contained in a court file, even if that entire court file is judicially noticed, are still subject to the same rules of evidence to which all evidence must adhere.

Burgess v. State, 831 So.2d 137, 141 (Fla.2002) (quoting Stoll v. State, 762 So.2d 870, 876-77 (Fla.2000)) (internal quotation marks omitted). Therefore, although the trial court could take judicial notice of the court file, the rules of evidence, including hearsay rules, still applied to the information contained within the court file.

It is true the copy of the notice required by paragraph twenty-two was admissible, over a hearsay objection, as a verbal act.

A verbal act is an utterance of an operative fact that gives rise to legal consequences. Verbal acts, also known as statements of legal consequence, are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it.

Arguelles v. State, 842 So.2d 939, 943 (Fla. 4th DCA 2003) (quoting Banks v. State, 790 So.2d 1094, 1097-98 (Fla.2001)). Since the copy of the notice contained in the court file was not offered to show that the declarations made in the notice were true, but instead, the contents of the notice, the copy of the notice constitutes a verbal act.

The affidavits, on the other hand, were offered to prove the truth of the matter asserted (that the notice was sent). Therefore, Holt’s hearsay objection to the affidavits should have been sustained. See § 90.801(l)(c), Fla. Stat. (2013).

The bank also argued to the trial court that the testimony of Holt proved that a notice complying with paragraph twenty-two was sent. However, Holt’s testimony in that regard was as follows:

Q: You recall receiving information that you defaulted on your note from your lender, correct?
A: No, I don’t recall.

As such, Holt’s testimony was neither evidence that she did receive, nor did not receive, the notice; her testimony was simply that she did not recall if she received the notice.

We agree with Holt that insufficient evidence of compliance with paragraph twenty-two justifies dismissal of the entire case. We therefore reverse and remand instruct the trial court to dismiss the case for failure to prove a prima facie case at trial.

Reversed and remanded.

STEVENSON and FORST, JJ„ concur.

      . The bank argues on appeal that the original note and mortgage were admitted into evidence by stipulation during the first portion of the trial. Because a transcript of that portion of the trial was not made a part of the appellate record, and because we reverse on other grounds, we affirm on the issue of improper admission of a copy of the note and mortgage during the second portion of the trial without further discussion.

      . On appeal, Holt also contends the trial court erred in overruling her hearsay objection to admitting into evidence a copy of the assignment of mortgage. The record is unclear and it is unknown if the trial court also admitted the mortgage assignment into evidence based on the business records exception. The mortgage assignment was nonetheless admissible as a verbal act (discussed below), so we affirm as to that issue without further discussion.

      . We do not address whether the affidavits could have been admissible as a business record, as that issue was not briefed on appeal. We also observe that there was no evidence laying the foundation for the affidavits as business records.

      . Although in our previous opinion, which is now withdrawn, we construed paragraph twenty-two as relating to acceleration remedies and not past due amounts, upon consideration of Holt's motion for rehearing, we are satisfied that failure to prove compliance with paragraph twenty-two at trial requires dismissal of the case due to the requirements imposed by paragraph twenty of the mortgage, which provides:
      Neither Borrower nor Lender may commence ... any judicial action pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party ... of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.The notice of acceleration and opportunity to cure given to Borrower pursuant to [paragraph] 22 ... shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this [paragraph] 20.


text:
    K.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1283.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

K.R. appeals the trial court’s order requiring him to pay $479 in restitution, arguing that the amount was based on speculation. We agree and reverse.

K.R. entered a plea to the charge of grand theft auto, was adjudicated delinquent, and was ordered to attend a commitment program. The trial court judge also ordered restitution and set a future restitution hearing date. At the restitution hearing, the victim testified that her vehicle was returned to her after it was stolen, but that it needed repairs. The victim’s testimony regarding the amount she paid for repairs to the vehicle was as follows:

THE COURT: How much did you have to pay to fix your car?
[THE VICTIM]: All together I. think it was probably about four hundred and something.
THE COURT: How much damage to your car, ma’am?
[THE VICTIM]: Yes.
THE COURT: Four hundred and— [THE VICTIM]: Four hundred and — I think four hundred and seventy-nine.
THE COURT: All right. What was the amount, again?
[THE VICTIM]: Probably four hundred and seventy-nine.
THE COURT: You don’t know how much you paid?
[THE VICTIM]: Yeah. It was like — I "know it was like four hundred and seventy-nine, plus like there would be no tax.

(emphasis added).

' After the foregoing exchanges regarding the amóunt that the victim paid to repair the vehicle, K.R. objected to the court ordering $479 in restitution because the victim had no receipt verifying the amount to which she testified that she paid for the repairs, and also because her testimony was speculative. The trial court ordered K.R. to pay $479 and .reduced the restitution to a civil lien. K.R. appeals the order of restitution.

Section 775.089(7), Florida Statutes (2012), states: “Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney.” We review the trial court’s order for an abuse of discretion. Johnson v. State, 942 So.2d 415, 416 (Fla. 2d DCA 2006).

“Restitution must be proved by substantial, competent evidence and this evidence must be greater than mere speculation.” Hunter v. State, 48 So.3d 174, 175 (Fla. 4th DCA 2010) (emphasis added); see also Wolff v. State, 981 So.2d 651, 653 (Fla. 4th DCA 2008). In this case, the victim’s testimony regarding the amount she paid for the repairs to her vehicle was never more than a guess. All of her testimony regarding the $479 figure was preceded by “probably,” “like,” and “I think.” These all indicate that the victim was not sure of the amount, but was providing her “guesstimate” of the amount she paid. Additionally, the trial court made oral pronouncements at the hearing acknowledging the testimony was probably speculative.

In Hunter, we held that it was error for the trial court to award restitution where “the victim testified that she paid $1000 for repairs to her home, but did not indicate what repairs were actually performed.” 48 So.3d at 175. Here, the victim did not testify about the repairs that were actually performed on her vehicle. Instead, in her testimony, she made general statements that repairs were made.

Since we reverse based on the speculative amount testified to by the victim, we do not address KR.’s argument that the restitution award was also not supported by documentation. We therefore remand the case back to the trial court for a new restitution hearing. See Siuda v. State, 114 So.3d 395, 397 (Fla. 4th DCA 2013) (citing Bennett v. State, 944 So.2d 524, 526 (Fla. 4th DCA 2006)) (“[W]e reverse the restitution order to the extent it includes amounts for the items discussed above, and remand for a new evidentiary hearing on those items.”).

Reversed and remanded for a new restitution hearing.

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


text:
    Gregory HOLLAND, Appellant, v. Ric L. BRADSHAW, as Sheriff of Palm Beach County, Appellee.
    No. 4D14-383.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2015.

      Gregory Holland, Century, pro se.
    Harriet R. Lewis of Lewis Stroud & Deutsch, P.L., Boca Raton, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

STEVENSON, MAY and KLINGENSMITH, JJ., concur.


author: PER CURIAM. WEIMER, J.,

text:
    POT-O-GOLD RENTALS, L.L.C. v. CITY OF BATON ROUGE.
    No. 2014-C-2154.
    Supreme Court of Louisiana.
    Jan. 16, 2015.
   PER CURIAM.

| íPot-O-Gold, L.L.C. applied for review of the court of appeal’s reversal of the summary judgment rendered in its favor by the trial court.

The trial court determined that the waste removal services performed by the applicant were not taxable services under EBR Sales & Use Tax Ordinance 10127 § 2, which provides, in pertinent part:

(a) There is hereby levied from and after January 1, 1995, for general municipal purposes, a tax upon the sale at retail, the use, the consumption, the distribution and storage as defined herein, and upon the lease or rental of tangible personal property and the sale of services within the City at a rate of two (2%) percent. This tax is levied under the general taxing authority conferred upon the City, as ratified by Article 6, Section 6 of the Louisiana Constitution of 1974.
(e) Each of the taxes specified herein shall be levied upon the following:
(3) The gross proceeds derived from the lease or rental of tangible personal property, where the lease or rental of such property is an established business, or part of the same is incidental or germane to the business.

12Ordinance 10127 § l(p)4imits the definition of taxable “services” to those enumerated therein. Waste removal and cleaning of waste receptacles is not listed in those services that are subject to the tax.

The trial court noted that lessees were not required to purchase Pot-O-Gold’s cleaning and sanitation services and that the services were offered to other parties independently from Pot-O-Gold’s rental operations. The TC concluded that nontaxable services remained non-taxable regardless whether the services were performed for rental customers in conjunction with a rental.

The court of appeal, however, held that the taxability of a transaction must be determined' as a whole, and that such a determination is made based on the taxa-bility of the “true object” of the transaction. The court of appeal concluded that money collected for ordinarily nontaxable cleaning and sanitation services became taxable “by virtue of the inexorably intertwined relationship between the services and the leased property” and reversed the trial court’s judgment.

Taxing statutes are to be interpreted liberally in favor of the taxpayer and against the taxing authority. If the statute can reasonably be interpreted more than one way, the interpretation less onerous to the taxpayer is to be adopted. UTELCOM, Inc. v. Bridges, 10-0654 (La.App. 1 Cir. 9/12/11), 77 So.3d 39, 47, writ denied, 11-2632 (La.3/2/12), 83 So.3d 1046.

In this case, Pot-O-Gold provides three different options to its customers: the lease of the portable toilet with no cleaning services included; the lease of the portable toilet with cleaning services included; and the providing of cleaning services to another vendor’s portable toilet. The first option is clearly taxable and the third option is clearly not. The second option is at issue herein.

13We agree with the trial court and the dissent from the court of appeal that the second situation is not taxable and first note the inconsistency of the rulings of the Louisiana Department of Revenue, referenced by the court of appeal. In LDR RR 06-012, the LDR states that in regards to the rental of dumpsters or waste collection receptacles and waste hauling services, neither the dumpster rental nor the waste' collection service is taxable; however, in LDR RR 06-013, the LDR states that in regards to the rental of portable toilets and the removal of waste and toilet cleaning and sanitation services, both the toilet rental and the waste removal, cleaning and sanitation services are taxable. It is difficult to determine why one situation is treated differently than the other, and we agree with the appellate dissent that it is just as reasonable to find that the true object of the portable toilet transactions is the removal of human waste as it is to find that the object of the dumpster transactions is the removal of trash. As such, we find that the “true object” of the transactions is, in the least, debatable, requiring the court to adopt the interpretation urged by the applicant as the least onerous to the taxpayer.

Moreover, we also note the dissent’s reasoning that to hold that providing cleaning services for portable toilets is not a taxable event if the toilet is owned by someone else, but is a taxable service if the toilet is owned by the lessor, creates an absurd result.

We therefore grant the writ application of Pot-O-Gold, L.L.C., and re-instate the judgment of the trial court granting the motion for summary judgment in its favor.

REVERSED AND REMANDED.

WEIMER, J., dissents and would grant and docket, and assigns reasons.

WEIMER, J.,

dissenting.

hi would grant and docket for the purpose of addressing the effect that the reduction in the rental fee charged by the taxpayer to customers who utilize the taxpayer’s waste removal and cleaning services has on the taxability of the income derived from those services. See East Baton Rouge Parish Sales & Use Tax Ordinance 10127, § 2(e)(3) (which governs the imposition of sales tax on “[t]he gross proceeds derived from the lease or rental of tangible personal property, where the lease or rental of such property is an established business, or part of the same is incidental or germane to the business”); see also Consolidated Companies, Inc. v. Normand, 11-527 (La.App. 5 Cir. 12/28/11), 83 So.3d 1071, writ denied, 12-0301 (La.3/30/12), 85 So.3d 125; Pontchartrain Materials Corp. v. Plaquemines Parish Government, 03-1444 (La.App. 4 Cir. 3/31/04), 871 So.2d 1171, writs denied, 04-1093 & 1152 (La.9/3/04), 882 So.2d 606 & 607.

Thus, I respectfully dissent.

      . EBR Sales & Use Tax Ordinance 10127 Section l(p) limits taxable services to the following: furnishing of rooms by hotels and tourist camps; sales of admission tickets to places of amusement; furnishing of storage or parking privileges; furnishing of printing services; furnishing of laundry services; furnishing of cold storage space; and the furnishing of repairs to tangible personal property-


text:
    In re Kevin M. STEEL.
    No. 2014-B-2367.
    Supreme Court of Louisiana.
    Jan. 16, 2015.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter and failed to communicate with a client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Kevin M. Steel, Louisiana Bar Roll number 26125, be and he hereby is suspended from the practice of law for a period of three months, fully deferred.

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


text:
    STATE of Louisiana v. Lynn E. FORET, M.D.
    No. 2014-C-2123.
    Supreme Court of Louisiana.
    Jan. 16, 2015.
   PER CURIAM.

|,The State filed the instant action against defendant in East Baton Rouge Parish based on La. R.S. 22:1931.5(4) of the Sledge Jeansonne Louisiana Insurance Fraud Prevention Act (“Jeansonne Act”), and La. R.S. 51:1405 of the Louisiana Unfair Trade Practices Act (“LUTPA”). The district court ruled the LUTPA claims were filed in an improper venue. It further ruled the Jeansonne Act and LUTPA did not apply to defendant’s conduct as it occurred prior to their effective dates. On appeal, the court of appeal determined the district court correctly granted the exception of improper venue, but vacated the judgment in all other respects. Both the State and defendant seek review in this court.

We conclude the lower courts erred in finding venue was improper in East Baton Rouge Parish as to the LUTPA claim. The Jeansonne Act sets forth a mandatory venue for that claim in East Baton Rouge Parish pursuant to La. R.S. 22:1931.3(E)(“Any action brought pursuant to the provisions of this Part shall be filed in the Nineteenth Judicial District Court for the parish of East Baton Rouge”). Because there is no common venue for the Jeansonne Act and LUTPA claims, the | gdoctrine of ancillary venue applies, making East Baton Rouge Parish a proper venue for both claims.

Therefore, venue is also proper in East Baton Rouge Parish as to the LUTPA claim under the doctrine of ancillary venue. See Underwood v. Lane Memorial Hosp., 97-1997 (La.7/08/98), 714 So.2d 715. Because venue was proper as to both claims in East Baton Rouge Parish, the district court did not err in reaching the remaining exceptions.

Accordingly, the writs ai'e granted. The judgment of the court of appeal is vacated insofar as it. holds venue is not proper in East Baton Rouge Parish. The case is remanded to the court of appeal to consider the remaining assignments of error.