author: CONNER, J.

text:
    MISHA ENTERPRISES, Appellant, v. GAR ENTERPRISES, LLC, Appellee.
    No. 4D11-3619.
    District Court of Appeal of Florida, Fourth District.
    July 10, 2013.

      Kenneth Ray Noble of Noble Law Firm, P.A., Deerfield Beach, for appellant.
    Jeffrey R. Lawley and Scott C. Cochran of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, for appellee.
   CONNER, J.

In this commercial landlord-tenant proceeding, Misha Enterprises, Inc. (Misha) appeals the trial court’s orders granting GAR Enterprises, Inc.’s (GAR) motion for judgment on the pleadings and motion for summary judgment. We reverse the granting of GAR’s motion for judgment on the pleadings as to the award of damages because Misha was entitled to an opportunity to contest the amount of damages awarded for accrued rent. We also reverse the granting of GAR’s motion for summary judgment because GAR did not negate Misha’s affirmative defenses of set-off for breach of quiet enjoyment and overcharges for garbage disposal. We affirm the judgment on the pleadings as to the grant of eviction.

Factual Background

In May 2006, Misha entered into a business lease with GAR to operate a bar-restaurant. The lease called for a term of three years with a monthly rent of $5000, adjusted annually based upon the consumer price index. The parties executed a three-year lease extension in 2009 with the same terms. Misha fell behind in rent, so in November 2010, GAR demanded Misha pay the delinquent rent or vacate possession. When Misha failed to do either, GAR filed a two-count complaint in December 2010 seeking eviction and damages for unpaid rent. An agreed order was entered directing Misha to pay $5706 for January 2011 rent and to continue to pay $5706 in rent either directly to GAR’s counsel or by depositing the rent into the court registry.

In June 2011, GAR filed an amended complaint seeking a declaratory judgment affirming its rights under the lease, damages for breach of contract, and eviction for defaulting under terms of the lease other than for payment of rent. The eviction count alleged that Misha damaged the bathrooms by removing backflow prevention equipment, refused to procure insurance required by the lease, and refused to allow GAR’s agents to inspect the property. The breach of contract count alleged the above allegations violated the terms of the lease and further alleged Misha’s failure to pay rent.

Misha filed an answer asserting five affirmative defenses. Most pertinent to this appeal, Misha’s fourth affirmative defense asserted a set-off of $100,000 based on GAR’s harassment of Misha and its customers, which Misha alleged resulted in a loss of business and based on GAR’s overcharges for garbage disposal.

GAR moved for summary judgment on all counts. GAR also moved to strike Mi-sha’s affirmative defenses for failing to pay the full amount of June 2011 rent or any rent for July or August 2011 into the court registry and moved for judgment on the pleadings on the eviction count. After a hearing, the trial court granted the motion for judgment on the pleadings, struck Mi-sha’s affirmative defenses and entered judgment against Misha for a writ of possession and for $22,268 in past unpaid rent. After a second hearing, the trial court granted GAR’s motion for summary judgment on the declaratory judgment and breach of contract counts. GAR was awarded $54,490 for breach of the lease agreement, lost future rent, and damages to the premises.

Motion for Judgment on the Pleadings

Misha asserts that it was not required to pay rent into the court registry because (1) it alleged the affirmative defense of payment and (2) the failure to pay rent was not raised as grounds for eviction in the amended complaint. Since it was not required to pay rent into the court registry, Misha claims the trial court erred in 1) striking its affirmative defenses; 2) granting judgment on the pleadings; 3) awarding unpaid rent as damages. “An appellate court considers a trial court’s granting of a judgment on the pleadings by a de novo standard of review.” Newsome v. GEO Group, Inc., 72 So.3d 168, 170 (Fla. 4th DCA 2011).

Section 83.232, Florida Statutes (2011), sets forth the requirements for payment of rent into the court registry once a landlord in a non-residential lease files an action for possession. Subsection (1) governs when a tenant must pay rent into the court registry, and it provides in part:

Even though the defense of payment or satisfaction has been asserted, the court, in its discretion, may order the tenant to pay into the court registry the rent that accrues during the pendency of the action, the time of accrual being as set forth in the lease.

§ 83.232(1), Fla. Stat. (2011) (emphasis added). Under subsection (5), “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” § 83.232(5), Fla. Stat. (2011).

Here, the trial court entered an order requiring Misha to pay rent into the court registry as it came due each month if it was not paid directly to GAR’s counsel. Based on the language italicized above, the trial court had authority to do so even if Misha raised payment of past rent as a defense. Under section 83.232(5), Misha’s failure to comply with the trial court’s order entitled GAR to an immediate default for possession and judgment on the pleadings regarding the action for possession.

Misha also argues that section 88.232 does not apply at all because GAR’s amended complaint seeks eviction solely for breach of contract terms other than those relating to rent. We do not agree. Section 88.282(1) begins: “In an action by the landlord which includes a claim for possession of real property....” There is no express limitation that the claim for possession be based upon unpaid rent. Section 83.20(3), Florida Statutes (2011), explicitly authorizes claims for possession for breach of a lease other than for nonpayment of rent. Because claims for possession other than for nonpayment of rent are explicitly authorized, it follows that the Legislature may have intended that a landlord be able to require the payment of rent into a court registry in any type of case involving a claim of possession, in order to insure against a tenant occupying property rent-free during the pendency of a lawsuit. See Famsun Invest, LLC v. Therault, 95 So.3d 961, 962 (Fla. 4th DCA 2012) (“Section 83.232 is designed to protect a commercial landlord from irreparable harm where a tenant holds over during eviction proceedings without paying rent.”); Premici v. United Growth Properties, L.P., 648 So.2d 1241, 1243 (Fla. 5th DCA 1995) (“The statute is designed to remedy the problem of commercial tenants remaining on the premises for the duration of litigation without paying the landlord rent.”).

“A default under this statute [section 83.232] determines only the possesso-ry interest and does not resolve a dispute for damages.” Famsun Invest, 95 So.3d at 963-64 (emphasis added). Thus, the trial court erred in treating Misha’s affirmative defenses as stricken with regards to awarding damages on the judgment on the pleadings and granting summary judgment on the basis that there is no dispute of material fact. By granting damages at the judgment on the pleadings stage, the trial court deprived Misha of the opportunity to present evidence to contest the amount of unpaid rent. Thus, we reverse the judgment on the pleadings granting damages.

Motion for Summary Judgment

GAR contends on appeal that the summary judgment should be affirmed because Misha’s affirmative defenses were properly stricken. Because the summary judgment order is silent on the issue and there is no transcript of the summary judgment hearing, we are unable to determine whether the trial court considered the affirmative defenses stricken when it granted the summary judgment. If it did, as discussed above, that was error. If it did not, then we must consider Misha’s arguments that the trial court erred in granting summary judgment because GAR’s affidavit did not negate Misha’s affirmative defenses. The standard of review of an order on summary judgment is de novo. Certain Interested Underwriters at Lloyd’s v. Chabad Lubavitch of Greater Ft. Lauderdale, Inc., 65 So.3d 67, 69 (Fla. 4th DCA 2011).

Summary judgment can only be granted if “the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). As noted by both parties, “the party moving for summary judgment must factually refute or disprove the affirmative defenses raised, or establish that the defenses are insufficient as a matter of law.” Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010).

It is unnecessary for us to discuss all of the affirmative defenses. Our review of the record shows error in granting summary judgment with regard to the fourth affirmative defense alleging set-off by-breaching the covenant of quiet enjoyment and overpayment for garbage disposal.

“Absent any inconsistent express covenants to the contrary, every lease carries an implied covenant of peaceable and quiet enjoyment.” McClosky v. Martin, 56 So.2d 916, 918 (Fla.1951) (citing Hankins v. Smith, 103 Fla. 892, 138 So. 494 (1931)). In its fourth affirmative defense, Misha specifically alleged GAR harassed Misha and Misha’s customers causing a loss of income by advising Misha’s customers for several months that Misha would be evicted any day, towing vehicles belonging to Misha’s customers, and needlessly causing numerous agencies to inspect Misha’s operation and property. Misha further alleged that GAR overcharged for garbage disposal by several hundred dollars a month for several years. GAR’s affidavit in support of summary judgment failed to address any of these allegations. Because GAR failed to demonstrate the absence of a material fact pertaining to Misha’s fourth affirmative defense, summary judgment in favor of GAR was error, and we reverse. Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So.3d 251 (Fla. 2d DCA 2011) (finding failure to address tenant’s affirmative defense that landlord harassed tenant’s customers required reversal of summary judgment awarding damages for nonpayment of rent).

Conclusion

Having determined the trial court erred in awarding damages on a judgment on the pleading and in granting summary judgment, we reverse for further proceedings.

Affirmed in part and reversed in part.

GROSS, J„ and COX, JACK S., Associate Judge, concur.

      . As we said in Poal Wk Taft, LLC v. Johnson Medical Center Corp., 45 So.3d 37, 38 (Fla. 4th DCA 2010), “Where the tenant has not paid the rent into the registry of the court in accordance with court order and the statute, the landlord is entitled to a writ of possession without further hearing. The trial court exercises no discretion, and the landlord is entitled to the issuance of the writ of possession as a matter of right.” If the landlord is entitled to an immediate writ of possession, there can be no doubt the landlord is also entitled to a judgment on the pleadings as to possession.


source: Caselaw Access Project

author: ROSENBERG, ROBIN, Associate Judge.

license: Public Domain

text:
    Joann AITCHESON, Appellant, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 4D12-592.
    District Court of Appeal of Florida, Fourth District.
    July 10, 2013.

      Lawrence M. Siff of Lawrence M. Siff, P.A., Plantation, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Charles M. Fahlbusch, Special Counsel Assistant Attorney General, Ft. Lauderdale, for appellee.
   ROSENBERG, ROBIN, Associate Judge.

This appeal follows from the trial court’s order of dismissal with prejudice. The defendant, Florida Department of Highway Safety and Motor Vehicles (“FDHSMV”), filed a motion to dismiss the plaintiffs, Joann Aitcheson (“Aitcheson”), complaint on the basis that the plaintiff failed to satisfy the conditions precedent required for waiver of sovereign immunity as set forth in section 768.28, Florida Statutes (2007). The issue on appeal is whether the complaint and documents attached to the complaint were sufficient to allege compliance with the notice requirement of section 768.28. We reverse and find that the complaint survives the statutory notice requirement.

Aiteheson’s complaint seeks damages against the FDHSMV for a slip and fall on March 21, 2007 at a DMV location on University Drive in Pembroke Pines, Florida. The complaint alleged that the action was “brought pursuant to Florida Statute 768.28 and the Plaintiff has complied with all conditions precedent prior to filing this action. Copies of which are attached hereto.”

Attached to the complaint were copies of certified mail receipts. One was addressed to the DMV office in Pembroke Pines, one to the Department of Transportation, and one to the Department of Financial Services. Also attached to the complaint were copies of the notice letters addressed to the Florida Department of Transportation, the FDHSMV, and the Florida Department of Financial Services.

The letters to the FDHSMV and the Department of Financial Services are almost identical. Within these letters, counsel for the plaintiff states that his office “has been retained to represent [the plaintiff] for injuries received in an automobile accident, which occurred on the above caption date.” The complaint, however, alleges injuries sustained in a slip and fall and does not mention an automobile accident. The subject field of the notice letters contains the plaintiffs name, the date of the accident, and the location of the accident. The bodies of the letters, however, incorrectly list the plaintiffs date of birth as “03/21/07,” which was the date of the accident.

These letters were dated July 23, 2007 and July 30, 2007. The complaint was filed on February 17, 2011. The FDHSMV moved to dismiss the complaint, alleging that the plaintiff failed to comply with the notice requirement of section 768.28, Florida Statutes. The court granted the motion and dismissed the ease on January 23, 2012.

Appellate courts review a trial court order granting a motion to dismiss with prejudice using the de novo standard of review. Doe, ex rel. Doe’s Mother v. Sinrod, 90 So.3d 852, 854 (Fla. 4th DCA 2012) (citing Ganac Grain Co. v. Mejia, 962 So.2d 408, 410 (Fla. 4th DCA 2007)). “While the court must confine its review to the four corners of the complaint and must accept as true all well-pleaded allegations, ... the exhibits are encompassed within the four corners of the complaint and must be considered therewith.” Abele v. Sawyer, 750 So.2d 70, 74 (Fla. 4th DCA 1999) (citing Fla. R. Civ. P. 1.130(b)).

“An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and ... to the Department of Financial Services, within 3 years after such claim accrues .... ” § 768.28(6)(a), Fla. Stat. (2007). The notice requirements “are conditions precedent to maintaining an action.... ” Id. at § 768.28(6)(b). “[T]he purpose of the notice requirement is to provide the State and its agencies sufficient notice of claims filed against them and time to investigate and respond to those claims.” Cunningham v. Florida Dept, of Children and Families, 782 So.2d 913, 915 (Fla. 1st DCA 2001) (citing Metro. Dade Cnty. v. Reyes, 688 So.2d 311, 313 (Fla.1996)).

The notice provision of section 768.28(6)(a) “is strictly construed, with strict compliance being required.” Maynard v. State, Dep’t of Corrections, 864 So.2d 1232, 1234 (Fla. 1st DCA 2004). However, we previously have recognized that although notice is statutorily required, the form of the notice is not specified. LaRiviere v. S. Broward Hosp. Dist., 889 So.2d 972, 974 (Fla. 4th DCA 2004). Rather, the notice required by the statute “must be sufficiently direct and specific to reasonably put the department on notice of the existence of the claim and demand.” Id. This notice must be written and must “sufficiently describef ] or identify] the occurrence so that the agency may investigate it[J” Id. (quoting Franklin v. Palm Beach Cnty., 534 So.2d 828, 830 (Fla. 4th DCA 1988)).

This court previously has held that, although a notice did not include the plaintiffs name, it nevertheless was sufficient and satisfied section 768.28(6)(a) because it put the agencies “on notice of an accident, its time and location[,] and that injuries were suffered and a claim was being made.” Franklin, 534 So.2d at 829. Although the notices provided to the FDHSMV and the Department of Financial Services state that the injury was suffered in an automobile accident, rather than a slip and fall, we find that the notices nevertheless provided sufficient information for the agencies to investigate the claim, satisfying the purpose of section 768.28(6)(a). See Cunningham, 782 So.2d at 915 (“[T]he purpose of the notice requirement is to provide the State and its agencies sufficient notice of claims filed against them and time to investigate and respond to those claims.”); see also LaRiviere, 889 So.2d at 974 (holding that the notice “must be sufficiently direct and specific to reasonably put the department on notice of the existence of the claim and demand”). As in Franklin, the notices attached to Aitchesoris complaint state the date and location of the accident, that an injury was suffered, and that a claim was being made. We conclude that the notice was sufficient to comply with the requirements of section 768.28(6)(a). See Franklin, 534 So.2d at 830.

The FDHSMV also argues that notice was improper because it was not delivered to the head of the agency. This argument is not persuasive because the notice requirement of section 768.28(6)(a) only requires notice be given “to the appropriate agency.” Although service of process is required to be made on the head of the agency, there is no requirement to serve an agency head with the written notice requirement. Compare § 768.28(7) with § 768.28(6)(a). Aitcheson provided notice to FDHSMV, the appropriate agency, as required by statute.

Finally, the FDHSMV argues that the notice was defective because it contained Aitchesoris incorrect date of birth. The portion of the statute requiring the claimant’s date of birth, however, requires it (as well as the claimant’s SSN) to be provided to the agency “prior to settlement payment, close of discovery or commencement of trial, whichever is sooner[.]” §§ 768.28(6)(c)-(d), Fla. Stat (2007). This case was dismissed prior to any settlement payment, start of discovery, or commencement of trial. Therefore, Aitchesoris failure to provide her correct date of birth on the notice is not fatal to her claim. See also Williams v. Henderson, 687 So.2d 838, 839 (Fla. 2d DCA 1996) (holding that date and place of birth and social security number are not necessary to include in the notice).

We find that Aitcheson complied with the statutory notice requirements under section 768.28(6)(a); therefore, dismissal of her complaint was error. The trial court’s order dismissing the complaint is reversed and the matter is remanded for further proceedings.

Reversed and Remanded.

GROSS and FORST, JJ., concur.


author: PER CURIAM.

text:
    Willie GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-300.
    District Court of Appeal of Florida, Fourth District.
    July 10, 2013.

      Willie Gordon, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999); Newsom v. State, 869 So.2d 619, 621 (Fla. 5th DCA 2004).

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    Julius SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3603.
    District Court of Appeal of Florida, Fourth District.
    July 10, 2013.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    No brief filed for appellee.
   PER CURIAM.

The patient appeals an order adopting the magistrate’s report and recommendation on the mental health facility’s petition for involuntary treatment. We reverse because competent, substantial evidence was not presented that the patient’s multidisciplinary team had discussed and approved the necessity of the recommended treatment plan.

To sustain on appellate review an order requiring a forensic patient to accept involuntary psychotropic treatment under section 916.107(3)(a), Florida Statutes (2012), there must be “at least some evidence that the multidisciplinary team has discussed and approved the necessity of treatment.” Troutman v. State, 112 So.3d at 638, 638 (Fla. 4th DCA 2013) (citation omitted). In Troutman, this court concluded, “the treatment center did not present competent, substantial evidence that the patient’s multidisciplinary treatment team discussed and approved the treatment plan.” Id at 639. This court found, regarding the psychiatrist’s testimony, that “[e]ven assuming this testimony referenced a discussion with the treatment team’s other members, the psychiatrist did not testify that the other team members approved of the necessity of the recommended treatment.” Id.

In this case, the psychiatrist testified that a treatment team was established and a treatment plan was devised for the purpose of restoring mental health and competency. The psychiatrist listed the members of the team, and testified that there was a second concurring doctor with respect to the treatment plan (who was not listed as being on the team). The psychiatrist never testified that the other members of the multidisciplinary team approved of the necessity of the treatment plan. As in Troutman, “[t]hus, the circuit court’s order must be reversed for a further hearing at which the treatment center may present evidence of the treatment team’s discussion and approval of the treatment plan.” Id.

Reversed and remanded for further proceedings.

MAY, GERBER and LEVINE, JJ„ concur.


text:
    John W. MANN, Appellant, v. A. RODRIGUEZ, Appellee.
    No. 4D12-975.
    District Court of Appeal of Florida, Fourth District.
    July 10, 2013.
    John W. Mann, Chipley, pro se.
    No appearance for appellee.
   PER CURIAM.

Upon review, we affirm the order denying injunctive relief and treat the appeal from the order denying the motion to seal the case as a petition for review pursuant to Florida Rule of Appellate Procedure 9.100(d) and deny the petition.

WARNER, STEVENSON and TAYLOR, JJ., concur.


author: TAYLOR, J.

text:
    Sudi STINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2113.
    District Court of Appeal of Florida, Fourth District.
    July 17, 2013.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

In this appeal from a criminal judgment and sentence, the defendant argues that the trial court erred in denying his motion to suppress evidence because the officers lacked reasonable suspicion to justify his stop and detention. We agree. The stop was based on a vague description provided by an anonymous tipster, and the officers did not observe any unusual or suspicious conduct to give them reasonable cause or founded suspicion to believe that the defendant had committed, was committing, or was about to commit a criminal offense.

An Indian River County deputy responded to a dispatch concerning a disturbance involving several black males. One of the males reportedly had brandished a handgun and fled south. He was described as wearing a white shirt and black or dark shorts and carrying a black square handgun. Several anonymous witnesses, in addition to a mail carrier who identified himself, reported the incident to 911. A helicopter was dispatched to investigate. According to the deputy, the helicopter pilot reported seeing a black male wearing a white shirt, black shorts, and a black jacket about 150 yards from the scene of the disturbance.

The deputy observed a person in the area who fit this description and was standing by a school bus talking to a few men. The deputy did not see the person, later identified as the defendant, doing anything illegal or engaged in any conduct that would make the deputy suspect that he had committed a crime, was committing a crime, or about to commit a crime. When officers arrived at the location, the defendant walked away from the group of men. The deputy exited his vehicle and directed the defendant to come over to him. He said he was concerned that the defendant might be carrying a weapon in his jacket because the weather in early March was too warm for a jacket.

The defendant refused the deputy’s command to come talk to him and continued to walk away. He walked through a gate and up a driveway. The deputy followed him. The defendant continued up the driveway and walked into a home. He took off his jacket and handed it to a woman who was inside the house. He also handed her a large amount of cash.

The deputy reached the front door and demanded that the defendant and the woman come outside. He instructed the woman to bring the jacket with her. After several commands, she gave him the jacket.

While the officer was speaking to the woman, the defendant started to walk away. Another officer approached the defendant, walked him over to a police cruiser, and began to question him. At the same time, one of the officers tossed the jacket onto the patrol car. When he did, a pill bottle “kind of popped up.” The officers examined the bottle and saw plastic bags containing a white substance inside. The defendant was placed under arrest and charged with possessing cocaine with intent to sell and trafficking in Hydroco-done.

The defendant filed a motion to suppress the evidence obtained during his detention. At the suppression hearing, he argued that there was no reasonable suspicion for his stop and detention, and that “innocent details” regarding a suspect’s appearance were insufficient to justify a Terry stop, even if the suspect matched the general description of a suspect involved in a nearby crime. The defendant conceded that the officers could have initiated a consensual encounter, but argued that the encounter here was not consensual because the defendant acquiesced to the officers’ commands to exit the residence and accompany them to the police vehicle despite the fact that he expressed no desire to talk to them.

The defendant also pointed out that when he was stopped, he only partially met the vague description given by the tipsters. The description given of the suspect who brandished a fireman was of a black man wearing a white shirt and dark shorts. There was no mention of the suspect wearing a leather jacket. However, the helicopter pilot directed the deputy to a man who was wearing a heavy black leather jacket.

The trial court denied the motion to suppress, finding that officers had the “required reasonable suspicion for an investigatory stop.” At trial, defense counsel renewed her motion to suppress and, in addition, filed a motion in limine to exclude any testimony concerning the 911 dispatches and BOLOs that reported that the police were seeking a man who had been brandishing a firearm. Defense counsel argued that the investigation leading up to contact with the defendant was irrelevant and prejudicial. The trial court denied the motion in limine and allowed the state to introduce this evidence at trial.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Terry v. State, 668 So.2d 954, 958 (Fla.1996). An appellate court will defer to the trial court’s factual findings if they are supported by competent and substantial evidence, but the trial court’s legal conclusions are reviewed de novo. See Gonzalez v. State, 59 So.3d 182, 184-85 (Fla. 4th DCA 2011) (citing State v. Young, 971 So.2d 968, 971 (Fla. 4th DCA 2008)).

The law is well-settled that an officer may not conduct an investigatory stop unless the officer has a reasonable or well-founded suspicion that the person has committed, is committing, or is about to commit a criminal offense. Popple v. State, 626 So.2d 185, 186 (Fla.1993) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); Kearse v. State, 384 So.2d 272, 273-74 (Fla. 4th DCA 1980); § 901.151(2), Fla. Stat. (2010).

A founded suspicion must be based on more than a hunch or bare suspicion to justify a stop. See, e.g., Coladonato v. State, 348 So.2d 326, 327 (Fla.1977); accord Mullins v. State, 366 So.2d 1162, 1163 (Fla.1978); see also Coleman v. State, 333 So.2d 503, 503 (Fla. 4th DCA 1976). “A ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978) (citing Coleman, 333 So.2d at 503). “Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification.” Id. (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971)).

In J.L. v. State, 727 So.2d 204, 208 (Fla.1998), aff'd, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the Florida Supreme Court held that police officers cannot conduct an investigatory stop based upon an anonymous tip unless they observed “additional suspicious circumstances as a result of the independent investigation [of the tip].” In J.L., the police received an anonymous tip that several young black males were standing at a bus stop during daylight hours. Id. at 205. “The anonymous informant stated only that one of the individuals, the one wearing the ‘plaid-looking’ shirt, was carrying a gun.” Id. The police stopped and frisked J.L., who was wearing a plaid shirt. Id. Before stopping him, the police did not see J.L. or the other males engaged in any suspicious or illegal conduct or observe any suspicious circumstances. Id. The court concluded that the tip, which described innocent details of identification, required corroboration through independent police investigation of observable suspicious conduct to justify a Terry stop and frisk. Id. at 207-208. The court also rejected the state’s argument that there should be a “firearms exception” to the reasonable suspicion test. Id. at 208-09 (quoting Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068, 1071 (Pa.1997)).

The Florida Supreme Court reaffirmed these principals in Baptiste v. State, 995 So.2d 285, 292-93 (Fla.2008). There, the court again concluded that the police lacked the necessary reasonable suspicion to initiate an investigative stop where the stop was initiated solely based upon the uncorroborated report of an anonymous tipster. Id. at 300-01. In Baptiste, an anonymous caller reported that a black male wearing a white T-shirt and blue jean shorts was brandishing a firearm in public. Id. at 288. Although Baptiste matched the description provided, when officers arrived on the scene he was not engaged in any unlawful or unusual conduct or suspicious behavior. Id. at 293. When police seized Baptiste, “he was merely walking down the street.” Id. at 296.

In J.H. v. State, 106 So.3d 1001 (Fla. 3d DCA 2013), the Third District Court of Appeal recently found an investigatory stop invalid under similar circumstances. In that case, a police officer followed up on an anonymous tip that there was a fight between several males, one of whom was wearing black clothing and carrying a ta-ser. Id. at 1002. When the officer arrived on the scene, there were about thirty people standing around, and the officer did not observe a fight or see anyone except J.H. wearing black clothing. Id. Because J.H. was wearing clothing that matched the anonymous tip description and appeared to be nervous, the officer ordered him to come to her car and then patted him down. Id. at 1002-03. The Third District concluded that the officer did not have reasonable suspicion to conduct the stop. Id. at 1003-04. “The sole basis for the Officer’s search and seizure of J.H. was the anonymous tip, which the Officer failed to corroborate.” Id. at 1004.

Here, the trial court found that an anonymous tipster informed police that a black male wearing a white shirt and dark shorts fled south after brandishing a firearm. Although the trial court also found that a mail carrier, who identified himself and gave a phone number, reported the same crime, the court did not find, and there is no record evidence, that the mail carrier also provided officers with a description of the subject. Based on the record in this case, we conclude that the tip which led to the officer’s encounter with the defendant was anonymous. The instant case is virtually indistinguishable from J.H., J.L., and Baptiste. The anonymous tipster in this case gave a vague description of a subject who “brandished” a handgun. The tipster provided police with no information regarding the suspect’s age, build, or other identifiable characteristics other than his race and gender and a generic description of his clothing. The defendant did not even fully meet the description provided by the anonymous tipster. Although he was wearing dark shorts and a white shirt as reported, he was also wearing a black leather jacket over his white shirt. The black jacket was not included in the tip.

Moreover, the officers did not observe the defendant engaged in any unusual or suspicious behavior before stopping him. The officers had no objectively reasonable basis for ordering the defendant out of a home simply because he was walking away from the area of a disturbance, matched a vague description of a subject who brandished a firearm, and was wearing a heavy-jacket that appeared inappropriate for the weather. None of these facts indicated that the defendant had just committed or was about to commit a crime. The sole basis for the officer’s stop and detention of the defendant was the anonymous tip, which the officer was unable to corroborate. Because the totality of the facts and circumstances did not provide reasonable suspicion to stop and detain the defendant, the trial court should have granted the motion to suppress the evidence seized as a result of the stop and detention.

Accordingly, we reverse appellant’s conviction for trafficking in Hydrocodone and possession of cocaine with intent to distribute. Because the Hydrocodone and cocaine must be suppressed, the defendant is entitled to discharge on these charges. See Hunter v. State, 32 So.3d 170, 175 (Fla. 4th DCA 2010) (reversing denial of motion to suppress and remanding with instructions to discharge the defendant on the drug possession charge); Gray v. State, 550 So.2d 540, 541 (Fla. 4th DCA 1989) (reversing denial of motion to suppress and remanding with instructions to discharge the defendant on drug trafficking charge).

Reversed and Remanded, with instructions for the court to discharge appellant on both charges.

MAY and GERBER, JJ., concur.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . The record does not support the trial court's finding that the helicopter pilot had observed the suspect put on a dark jacket. In fact, the deputy testified to the contrary. The deputy clarified that the pilot had not reported seeing a subject 150 yards from the area of the disturbance meeting the description and putting on a black jacket. The initial description made no mention of a jacket at all and there was no testimony that the pilot saw the defendant putting on a jacket, only that when the pilot and deputy first saw the defendant in the area, he was wearing a jacket.

      . Because there will be no retrial of the charges in this case, we need not address the admission of evidence of die 911 and BOLO reports regarding the firearm.


author: WARNER, J.

text:
    T.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1421.
    District Court of Appeal of Florida, Fourth District.
    July 17, 2013.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, 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.
   WARNER, J.

In finding T.P., a juvenile, guilty of battery, the court rejected his self-defense claim based upon Florida’s “Stand Your Ground” law. See § 776.032, Fla. Stat. In its ruling, the court apparently determined that the statute only applied to justify the use of deadly force in the protection of one’s home or vehicle, neither of which was involved in this incident. The court erred in its construction of the statute and we reverse.

The alleged battery occurred while T.P. was riding a school bus. At the hearing on T.P.’s motion to dismiss based upon the Stand Your Ground law, a school bus driver testified that she was driving children home from middle school. T.P. and the complainant, A.F., were both on the bus. When the bus stopped, T.P. (a boy), started to get off, and A.F. (a girl) grabbed T.P.’s jacket. They started fighting. A.F., who was larger than T.P., pulled him down on a seat. The bus driver testified that A.F. first grabbed T.P. and then punched him. After A.F. grabbed his jacket T.P. fought back. T.P.’s mother and grandmother got on the bus and tried to stop the fight. The grandmother struck A.F. and then T.P. got off the bus. At that point, shei'iff s deputies came and T.P. was arrested.

In contrast to the bus driver’s testimony, A.F. testified at the hearing that T.P. was in the back of the bus, and she heard some boys talking about how they were going to fight T.P. after school. She testified that when the bus stopped at the stop where both she and T.P. got off, she was ahead of T.P. As he went up the aisle, T.P. bumped A.F. on the shoulder. After he bumped her she tapped him, pulled his jacket and said, “Hey, you just pushed me.” At that point T.P. saw his mother and grandmother coming to the bus, so he punched her in the cheek. T.P.’s mother and grandmother got on the bus and started hitting A.F.

On cross-examination, A.F. stated that T.P. bumped her and then pushed her out of the way as he was getting off the bus. He had already passed her when she “fought him down on to the seat.” Inconsistent with her earlier testimony on direct, she denied that when T.P. bumped her, she pulled his jacket. She said that when she turned around, he hit her and they started fighting.

The defense argued that section 776.032, Florida Statutes, the Stand Your Ground law, applied and that T.P. was lawfully entitled to defend himself, because, according to the bus driver, A.F. had used force against T.P. when she grabbed him by his jacket, punched him, and pulled him down into his seat. Believing that the Stand Your Ground law applied only to the defense of home or vehicle, not on a bus, the court denied the motion. After a trial on the merits, at which the bus driver did not testify, T.P. renewed his motion to dismiss on the Stand Your Ground law, which the court again denied. The court then adjudicated T.P. guilty of battery. T.P. appeals, contending that the court misconstrued the law on self-defense.

The Stand Your Ground law provides immunity from prosecution if the defendant is justified in the use of force in accordance with, among other provisions, section 776.013. Section 776.013(3), adopted as part of the Stand Your Ground law provides:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

As we explained in McWhorter v. State, 971 So.2d 154, 156 (Fla. 4th DCA 2007):

The 2005 Florida Legislature’s creation of section 776.013, Florida Statutes (2005), expanded the right of self-defense and abolished the common law duty to retreat when a person uses deadly force in self-defense to prevent imminent great bodily harm or death....
... [U]nder section 776.013, a person who is attacked is allowed to stand his or her ground and “meet force with force.” It appears that the new law places no duty on the person to avoid or retreat from danger, so long as that person is not engaged in an unlawful activity and is located in a place where he or she has a right to be. § 776.013(3), Fla. Stat. (2005).

(Internal citation omitted).

In this case, T.P. had the right to assert a defense under section 776.013(3). He was not engaged in an unlawful activity, and he had the right to be on the bus going home from school. He had no duty to retreat and, despite the trial court’s misgivings, had the right to “meet force with force” if he reasonably believed that such force was necessary to prevent great bodily harm to himself. Whether he was faced with “force” from A.F. and whether he reasonably believed that such force was necessary to prevent harm to himself were factual matters for the trial court to determine based upon a preponderance of the evidence. See Leasure v. State, 105 So.3d 5,12 (Fla. 2d DCA 2012).

The trial court rejected the application of section 776.013, misunderstanding the section to apply only to homes and vehicles. The statute is not so limited. In fact, it is extremely broad in its grant of the right of a person to protect himself or herself in any situation where the person is not engaged in an unlawful activity and is in a place where the person is entitled to be. Although the trial court’s misgivings of applying it to a fight on a school bus may be well taken, it is not the place of the trial court, or this court, to refuse to apply the plain meaning of the statute.

The written order denying the motion to dismiss stated that it was denied “for all the reasons stated on the record.” The trial court did not actually state any reasons at the hearing, except for the apparent conclusion that the statute would not apply to a person in a public place, such as a school bus. At the trial, the trial court merely adopted its prior ruling in denying the motion to dismiss based upon the Stand Your Ground claim.

Because the trial court erred in its legal conclusion that section 776.013 did not apply, we reverse for the trial court to consider the motion to dismiss under a proper construction of the statute. The issues for the trial court to determine by a preponderance of the evidence are: (1) whether A.F. was the aggressor, ie., did she first engage in force against T.P., and (2) whether T.P. was reasonable in his belief that the force that he used against A.F. was necessary to protect himself from great bodily harm. We cannot conclude either from the hearing on the motion to dismiss or from trial that the trial court made a finding on either issue.

We reject, however, T.P.’s contention at trial that a mere battery of any sort implicates the Stand Your Ground law. The statute permits a person to “meet force with force.” A battery may not always be a matter of force. It may involve only an intentional “touching” against the will of the victim. See § 784.0S(l)(a), Fla. Stat. Therefore, the mere tugging at a jacket may be a battery but not an attack with force which would justify the person to use force in return. The school bus driver, however, testified that A.F. did much more than tug at T.P.’s jacket. She stated that A.F. pulled T.P. down and punched him, although A.F. denied this. The trial court did not make any findings on these issues.

Should the trial court find in favor of T.P. on both of the foregoing issues, T.P. is entitled to dismissal of the delinquency petition. If, on the other hand, the trial court determines that T.P. has not proved both issues in his favor, then the court may reimpose its adjudication and disposition.

Reversed and remanded.

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


author: GROSS, J.

text:
    Thomas VILSEIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2322.
    District Court of Appeal of Florida, Fourth District.
    July 17, 2013.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The admission of an eyewitness’s discovery deposition as substantive evidence at trial compels reversal of this case because it violated the Confrontation Clause of the Sixth Amendment to the United States Constitution.

Originally charged with five felonies, the defendant was acquitted of three and convicted of two lesser included offenses, burglary of a dwelling and third degree grand theft.

The State’s Case

One morning in 2011, the victim awoke to find that a fire had erupted in his home. In a panic, the victim woke up a guest staying with him and the two rushed out to safety. With the house engulfed in flames, the victim ran back inside to salvage what he could. He emerged carrying a gun bag containing three rifles and a fire safe protecting over $61,000 in cash.

The victim tossed the gun bag and safe into his yard, close to where the defendant and a neighbor were standing. The defendant twice tried to retrieve the items, purportedly with the intention to help, but the victim insisted that his neighbor, whom he had known for two years, take the items for safekeeping. Following the victim’s instructions, the neighbor placed the items in the laundry room of his house.

The fire continued to burn and more chaos ensued — ammunition stored in the victim’s house began exploding like fireworks. At about this time, the neighbor watched the defendant, without the victim’s permission, drive the victim’s Mercedes to a separate location. The neighbor and his wife then got into their own car and drove to a nearby cul-de-sac, where they waited for about 25 to 80 minutes until the area near the victim’s home was made safe.

When the neighbor returned home, he discovered that the gun bag and fire safe were missing from the laundry room. After the neighbor reported the burglary, the police found that a back window in the room was out of position, suggesting the burglar’s point of entry. The police were not able to pull any fingerprints or develop DNA evidence linking the defendant to the neighbor’s house.

The Testimony of Ruby White

To pin culpability on the defendant, the State relied upon the observations of witnesses who said they saw the defendant acting suspiciously. A key witness was Ruby White, another neighbor, who saw an African-American male matching the defendant’s description pick up two bags and run towards a gate while the fire at the victim’s house raged.

At trial, the State called White as a witness, but presenting her testimony proved impossible. White’s uncontrollable chattering and her inability to discern where she was or what she was doing prevented her from intelligently answering the State’s questions. After the State’s failed attempts to extract her testimony, defense counsel requested that the trial judge strike the prosecutor’s leading questions and White’s answers and instruct the jury to disregard entirely White’s testimony. The trial judge granted the motion to strike and found White to be “unavailable.”

The State then requested permission to offer White’s previous discovery deposition as substantive evidence. Defense counsel objected on the ground that to allow such testimony would violate the defendant’s right to confront the witnesses against him. Nevertheless, based on his prior determination of White’s “unavailability,” the trial judge permitted the prosecutors to read the discovery deposition to the jurors.

In her deposition, White stated that on the day of the fire, she had just gone outside to watch the fire when she saw an African-American male pick up two bags and run towards the gate of the community. Although she did not originally think much of it, White spoke to the neighbor about the man she had seen running with the bags. After the neighbor informed police of White’s observation, she was presented with a photo lineup, from which she identified the defendant as the person she had seen.

To bolster White’s testimony, the State presented Jorge Esquivel, who testified that on the day of the incident, when he was close to White, he also saw the defendant, with no shoes on and dressed in all black, run to the front of the community carrying a bag in each hand. Esquivel clarified that he was able to see only the profile of the defendant’s face, and that White had a far better “vantage point.” Esquivel was able to identify the defendant in a photo lineup due to his facial hair.

Deputy Johnsorir-Stinnett

Deputy Johnson-Stinnett was working road patrol and responded to the victim’s house after hearing reports of the fire. Because of the potential danger of exploding bullets, the deputy parked her patrol car outside the immediate area of the fire to preclude persons from entering. While stationed there, she observed the defendant, dressed in all black, staring at her. She got out of her patrol car and asked the defendant what he was doing in the area and where he was going. The defendant responded he was just coming from his friend’s house and was heading home. In identifying the location of his home, the defendant pointed to a distinct location; however, his house was actually located in a different part of the development.

Later that day, Deputy Johnson-Stin-nett performed a secondary search of the area with her bloodhound. During this search, she observed the defendant’s home and saw him wearing clothes different from the black clothes he had worn earlier.

On cross-examination, the defense focused on the first time the deputy observed the defendant. The deputy stated that she was certain that the person she saw at the road block was the defendant, a contention she supported after speaking with “other deputies who ... kn[ew the defendant’s] family from other dealings.” Defense counsel immediately moved to strike the latter statement and to declare a mistrial. The trial court sustained the objection and instructed the jury to “[disregard that last answer.”

Without defense counsel asking another question, the deputy then spontaneously stated, “I was told on scene the name of him. That’s how I know it’s his name.” Defense counsel again objected and moved to strike the testimony as hearsay, but the trial court overruled the objection.

The Defense’s Case

As its only witness, the defense presented the defendant’s 16-year-old sister. She testified that she was with the defendant in their house when they both heard the ammunition from the victim’s house exploding. The defendant told his sister to call the police and went outside to see what was going on and to help. Shortly thereafter, police officers surrounded their house to assist the victim with the fire. During this time, the sister saw the defendant move the victim’s car to a safe location before returning to their house and cooking breakfast. Notably, she said police officers searched their house and the defendant’s car, but the stolen items were never recovered.

Confrontation Clause

The introduction of Ruby White’s discovery deposition as substantive evidence violated the Confrontation Clause because the defense did not have a sufficient opportunity for cross examination.

“The Confrontation Clause of the Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” State v. Belvin, 986 So.2d 516, 520 (Fla.2008) (quoting U.S. Const, amend. VI). Florida courts have explained that the Confrontation Clause seeks

(1) to impress the witness of the seriousness of the matter and to protect against a lie by the possible imposition of the penalties associated with perjury; (2) to allow the witness to be subject to cross examination; and (8) to allow the jury to have the opportunity to observe the demeanor of the witness as an aid to assessing credibility.

Rogers v. State, 40 So.3d 888, 890 (Fla. 5th DCA 2010) (citing Harrell v. State, 709 So.2d 1864, 1368 (Fla.1998)). Thus, to effectuate its purpose, the clause categorically bars the “ ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ ” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).

“While the Court in Crawford did not include an explicit definition of ‘testimonial’ in its decision,” Corona v. State, 64 So.3d 1232, 1239 (Fla.2011), the Court has held that formal “affidavits, depositions, prior testimony, and confessions” are the very “sort of extrajudicial statements ... that the Confrontation Clause was originally understood to reach.” Williams v. Illinois, — U.S. -, -, 132 S.Ct. 2221, 2228, 183 L.Ed.2d 89 (2012). As testimonial statements, our Supreme Court has determined that the introduction of discovery depositions as substantive evidence at criminal trials violates the Confrontation Clause, since such a deposition’s “purpose ... is at odds with the concept of meaningful cross-examination.” State v. Contreras, 979 So.2d 896, 910 (Fla.2008); see also State v. Lopez, 974 So.2d 340, 349 (Fla.2008) (finding discovery depositions do not provide a sufficient opportunity for cross examination since they are primarily “taken for the purpose of uncovering other evidence or revealing other witnesses,” not questioning credibility); Corona, 64 So.3d at 1241 (discussing how a pretrial deposition did not afford a defendant an adequate opportunity to cross-examine a witness). Rather, where, as here, there is a legitimate concern that the witness will not be able to testify at trial, the proper procedural vehicle is to request a deposition to perpetuate testimony pursuant to Florida Rule of Criminal Procedure 3.190(i). Such a request places opposing counsel on notice of the deposition’s potential use at trial.

The State contends that the admission of White’s deposition was harmless error. See Blanton v. State, 978 So.2d 149, 156 (Fla.2008) (“ ‘[Violations of the Confrontation Clause, if preserved for appellate review, are subject to harmless error review ....’”) (quoting United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004)). “[U]nder the harmless error test, the State must ‘prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.’” Symonette v. State, 100 So.3d 180, 184 (Fla. 4th DCA 2012) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)). It “requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” DiGuilio, 491 So.2d at 1135. Only where “it can be said beyond a reasonable doubt that the verdict could not have been affected” will such error be deemed harmless. Ciccarelli v. State, 531 So.2d 129, 132 (Fla.1988).

In this case, we cannot say beyond a reasonable doubt that the verdict could not have been affected by the admission of White’s discovery deposition. White was not only a dominant fixture of the State’s case-in-chief, but she was also the witness with the best vantage point to see the defendant in possession of the stolen items. Without other physical evidence linking the defendant to the burglary, White’s testimony was significant proof of the defendant’s guilt; the State referenced her testimony twelve times during closing argument. The error was not cleansed by defense counsel’s plea during closing argument for the jury to disregard White’s testimony due to her incompetence, as counsel’s statement did not preclude the jury from considering all of the evidence presented.

As to other issues raised on appeal, we agree with the defendant that on retrial Deputy Johnson-Stinnett should be precluded from testifying (1) that she knew of the defendant’s name because she “was told on scene the name of him,” and (2) that the “other deputies that were there [knew the defendant’s] family from other dealings.” The former statement is hearsay and the latter is inadmissible at trial because the implication that a defendant or his family has been involved “in other crimes is considered presumptively prejudicial” due to “ ‘the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.’ ” Ford v. State, 702 So.2d 279, 280 (Fla. 4th DCA 1997) (quoting Straight v. State, 397 So.2d 903, 908 (Fla.1981)).

Reversed and remanded for a new trial.

CIKLIN and FORST, JJ., concur.


text:
    Lois RHODES, Appellant, v. O. TURNER & COMPANY, LLC, Othel Turner and Byron Rainer, Appellees.
    No. 4D12-3836.
    District Court of Appeal of Florida, Fourth District.
    July 17, 2013.
    Rehearing Denied Aug. 9, 2013.

      Allan A. Joseph and Michael B. Korn-hauser of Fuerst Ittleman David and Joseph, P.L., Miami, for appellant.

      David J. Lazarovic of Law Office of David Lazarovic, P.A., Miami, for appellee Othel Turner.
   CONNER, J.

A default final judgment can be vacated more than one year after it is entered only in limited circumstances, such as when the judgment is void. Lois Rhodes obtained a default final judgment against the Appellees; however the trial court subsequently vacated it on grounds the judgment was void because the complaint failed to state a cause of action on all claims. We reverse, holding Rhodes’s civil theft claim stated a cause of action.

Factual Background

According to her complaint, Rhodes was referred to 0. Turner & Company, LLC (Turner LLC), for accounting and personal financial services to assist in paying off her debts. An employee of the firm, Byron Rainer, advised Rhodes to liquidate her individual retirement account (IRA) into an escrow account held by Turner LLC. Rainer prepared the paperwork to liquidate the IRA, adding language directing the brokerage company to rush the request and not contact Rhodes prior to disbursing the funds. The IRA funds were disbursed, causing Rhodes to incur not only early termination and withdrawal fees, but also income tax liability. Turner LLC also charged Rhodes $2425 for incorporation fees and legal documents. Rhodes alleged these penalties and fees were not explained to her. Rhodes also alleged Rainer is a convicted felon and Othel Turner, the president of Turner LLC, knew this when he hired Rainer.

The complaint further alleged that Rhodes hired an attorney who demanded an explanation of the fees charged to Rhodes as well as confirmation that Turner LLC was holding Rhodes’s funds. When no explanation or confirmation was received, Rhodes filed a police complaint. Othel Turner told the investigating officer that “Rhodes had a legally formed escrow account,” and that he would return Rhodes’s money within a week, but failed to do so. Rhodes’s attorney contacted the officer a week later to advise that he had heard nothing from Othel Turner. The officer advised she would visit Othel Turner again.

The next day, Rhodes’s counsel received a phone call from Othel Turner advising the money would be sent in a week. Two days later, an attorney representing Othel Turner sent an e-mail to Rhodes’s counsel indicating for the first time that money taken from the IRA was a purported loan from Rhodes to Turner LLC. In response, Rhodes sent civil theft demand letters to Turner LLC, Othel Turner, and Rainer, pursuant to section 772.11, Florida Statutes (2012).

When these demand letters went unanswered, Rhodes filed a complaint against Turner LLC, Othel Turner, and Rainer for civil theft, fraud, and breach of fiduciary duty. A default was entered against all three defendants after they failed to answer the complaint. In March 2011, Rhodes obtained a default judgment against all three defendants for $410,451.79, three times the amount taken from the IRA plus attorney’s fees and costs as provided by section 772.11(1). Othel Turner individually filed a motion to vacate the default judgment, more than a year after it was entered, arguing the complaint failed to state a cause of action. After a hearing, the trial court granted the motion, agreeing that all three counts of the complaint failed to state a cause of action and the default judgment was void.

Analysis

Rhodes contends that the trial court erred in determining the default judgment should be vacated as void because her complaint did not state a cause of action. She argues that each of the three counts of her complaint states a cause of action. The standard of review of a trial court’s ruling on a motion to vacate is gross abuse of discretion. See Arsali v. Chase Home Fin., LLC, 79 So.3d 845, 849 n. 5 (Fla. 4th DCA 2012). Whether a complaint states a cause of action is an issue of law, reviewed de novo. Kreizinger v. Schlesinger, 925 So.2d 431, 432 (Fla. 4th DCA 2006).

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: ... (4) that the judgment or decree is void....” Fla. R. Civ. P. 1.540(b). Despite Rhodes’s arguments to the contrary, “[f]ailure to state a cause of action may be fatal to a complaint and render void a default final judgment based upon the complaint.” Neuteleers v. Patio Homeowners Ass’n, Inc., 114 So.3d 299, 301 (Fla. 4th DCA 2013) (citing Lee & Sakahara Assocs. AIA, Inc. v. Boykin Mgmt. Co., 678 So.2d 394, 396 (Fla. 4th DCA 1996)); Becerra v. Equity Imports, Inc., 551 So.2d 486, 488 (Fla. 3d DCA 1989) (“Failure to state a cause of action, unlike formal or technical deficiencies, is a fatal pleading deficiency not curable by a default judgment.”); Opti, Inc. v. Sales Eng’g Concepts, Inc., 701 So.2d 1234, 1235 (Fla. 4th DCA 1997) (complaint which failed to state a cause of action for any judicial relief other than to compel arbitration was a nullity for entering a monetary judgment, thus the default final judgment was reversed). Confining ourselves to the four corners of the complaint, we now examine whether the three counts of the complaint stated a cause of action supporting the default final judgment against Oth-el Turner.

Civil Theft

Under section 772.11(1), Florida Statutes (2012), a person who is injured by a violation of section 812.014(1) (theft) can recover three times the damages sustained, plus costs and attorney’s fees. “[T]o establish an action for civil theft, the claimant must prove the statutory elements of theft, as well as criminal intent.” Gersh v. Cofman, 769 So.2d 407, 409 (Fla. 4th DCA 2000). Under section 812.014(1), “[a] person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property [or] (b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.” “Obtains or uses” includes “[cjonduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception.” § 812.012(3)(d)l., Fla. Stat. (2010).

Othel Turner asserts that Rhodes pleaded legal conclusions and not ultimate facts to show that he personally committed theft against Rhodes. He also asserts that Rhodes failed to allege any facts to demonstrate criminal intent, citing Moynet v. Courtois, 8 So.3d 377 (Fla. 3d DCA 2009). We agree that in Moynet the Third District held that the plaintiff failed to state a cause of action for civil theft because there was no allegation of criminal intent on the defendant’s part. Id. at 380.

The complaint in this case alleges:

15. ... Officer Lyons met with Mr. [Othel] Turner on September 14, 2010, at which time Mr. Turner told the officer ... that he was willing to return the funds to Rhodes but that it would take one week to liquidate them and that he would contact the undersigned [counsel for Rhodes] to make the arrangements to do so. One week later the undersigned contacted the officer and advised her that the undersigned had yet to hear from Defendant Turner, at which time she would visit him again. On September 22, 2010, Defendant Turner called the undersigned and told him that the monies would be returned to the Plaintiff [Rhodes], care of the undersigned’s trust account, within one week’s time....
16. On September 24, 2010, an attorney named [C.C.] sent an email to the undersigned indicating that he represented all three Defendants.... This was the first time that Defendants 0. Turner & Company, LLC, and Othel Turner had represented, in writing, that there was a purported loan by the Plaintiff [Rhodes] to Defendant O. Turner & Company, LLC. When the undersigned requested documents to substantiate this claimed loan, Defendant [Othel] Turner acknowledged no such document exist, [sic]
21. Pursuant to § 812.0145(2)(a), the Defendants have, with intent to deprive the Plaintiff of same, stolen assets valued in excess of $50,000.00 from the Plaintiff, and thus have committed felonies of the first degree.
22. Defendants, jointly and severally, through fraud and with intent to obtain the Plaintiffs money illegally, did in fact exploit the Plaintiff and obtain her funds through an act of theft giving rise to a civil remedy pursuant to § 772.11, Fla. Stat.

Although it is true that Rhodes does not use the words “criminal intent” in the complaint, we are satisfied the allegations in the complaint support a claim for civil theft. The complaint also sufficiently alleges Othel Turner’s personal involvement with the failure to return the funds he admitted to being escrow funds.

Having determined that Rhodes alleged facts to establish civil theft with the requisite criminal intent, we conclude the trial court erred in holding the civil theft count fails to state a cause of action.

Fraud

Rhodes argues that she pleaded all four elements of fraud with the specificity required by Florida Rule of Civil Procedure 1.120(b) (“the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit.”). “In order for a claim of fraud in the inducement to withstand a motion to dismiss, it must allege fraud with the requisite particularity required by Florida Rule of Civil Procedure 1.120(b), including who made the false statement, the substance of the false statement, the time frame in which it was made and the context in which the statement was made.” Eagletech Communs., Inc. v. Bryn Mawr Inv. Group, Inc., 79 So.3d 855, 861-62 (Fla. 4th DCA 2012) (quoting Bankers Mut. Capital Corp. v. U.S. Fid. & Guar. Co., 784 So.2d 485, 490 (Fla. 4th DCA 2001)).

The elements of fraud are: (1) a false statement concerning a specific material fact; (2) the maker’s knowledge that the representation is false; (3) an intention that the representation induces another’s reliance; and (4) consequent injury by the other party acting in reliance on the representation. Wadlington v. Cont’l Med. Servs., 907 So.2d 631, 632 (Fla. 4th DCA 2005).

We find that Rhodes’s complaint does not meet the standard set forth in Eagletech. The complaint makes a general allegation of fraud:

The Defendants used deceit in making false representations to the Plaintiff that they would obtain her funds and either re-invest them in another annuity, after payment of various debts that she had outstanding, or turn said funds over to the Plaintiff.

This allegation does not state who made the false representations, when they were made, and the context in which they were made. Although Rhodes claims that these allegations are as specific as “the circumstances may permit,” because Rhodes was not privy to communications between the Appellees, she was certainly privy to conversations between herself and the Appel-lees regarding how they would use her funds. Therefore, we find the trial court did not err in holding the fraud claim failed to state a cause of action as to Othel Turner.

Breach of Fiditciary Duty

“The elements of a claim for breach of fiduciary duty are: the existence of a fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiffs damages.” Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002) (citations omitted). Rhodes asserts that she pled all the elements of a breach of fiduciary duty claim by alleging that a fiduciary relationship existed by virtue of a contractual relationship between Rhodes and the Appellees, the Appellees misled Rhodes by telling her that they would assist her in debt consolidation while their intent was to steal Rhodes’s money, and the Appellees breached the fiduciary duty by actually obtaining Rhodes’s money.

Othel Turner argues these are all con-clusory allegations and no ultimate facts are alleged to support the assertion that he personally misled Rhodes. We agree. The complaint alleges the breach of duty as follows:

30. The Defendants misled the Plaintiff as to the quality and purpose of the engagement, by telling the Plaintiff that they were going to assist her in her debt consolidation when the intent of the Defendants was simply to obtain the Plaintiffs funds for their own purposes.
31. The Defendants, jointly and severally, breach[ed] their fiduciary duty owed to Plaintiff by obtaining her funds solely for their own benefit.

Although the first paragraph of the count “incorporates paragraphs 1 through 18 as if fully set forth herein,” there is nothing in the first eighteen paragraphs of the complaint which adequately pleads that Othel Turner was a participant in the initial misrepresentation “as to the quality and purpose of the engagement.” The conclusory allegation “[t]he Defendants misled the Plaintiff,” is insufficient to state a claim against Othel Turner for the breach of fiduciary duty as alleged. The complaint alleges a breach of duty surrounding the nature of the initial engagement, not a breach of duty as to Othel Turner’s involvement in failing to return, after demand, funds that he personally represented were held in escrow.

Conclusion

As Rhodes’s claim for civil theft states a cause of action, we hold it was a gross abuse of discretion for the trial court to vacate the default final judgment as to that claim on grounds the judgment was void. We remand for reinstatement of the final judgment as to the civil theft claim against Othel Turner. Our resolution of Rhodes’s appeal on this issue makes it unnecessary to address her waiver argument.

Reversed and remanded.

TAYLOR and MAY, JJ., concur.


text:
    P.O., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D13-1252.
    District Court of Appeal of Florida, Fourth District.
    July 17, 2013.
    Frank A. Kreidler, Lake Worth, for appellant.
    Stephanie C. Zimmerman, Tampa, for appellee Department of Children and Families.
    Hillary S. Kambour, Sanford, for appel-lee Guardian Ad Litem Program.
   PER CURIAM.

We affirm the trial court’s final judgment terminating the father’s parental rights to his children, as the trial court’s findings are supported by competent substantial evidence. See In re Baby E.A.W., 658 So.2d 961, 967 (Fla.1995).

As to the father’s claim that his constitutional right to free association with the mother was infringed, his contact with the mother was a factor in the trial court’s decision to terminate rights. The mother’s rights had also been terminated, and the court had determined that she remained a danger to the children. Despite this, the father remained in contact with the mother and indicated that he would continue to involve the mother in the children’s lives. The trial court did not violate the father’s constitutional rights. The right to free association in personal relationships, which includes a parent’s right to the care and upbringing of his child, is not absolute, and infringements may be justified by a compelling state interest in the protection of children. See D.D. v. Dep’t of Children & Families, 849 So.2d 478 (Fla. 4th DCA 2003) (state has compelling interest in protection of children and does not violate that test when it interferes with father’s fundamental right to parent child through the exercise of its authority under Chapter 39, Florida Statutes).

Affirmed.

WARNER, Conner, JJ., and LEVENSON, JEFFREY R., Associate Judge, concur.


text:
    Richard JILES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3134.
    District Court of Appeal of Florida, Fourth District.
    July 17, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

In this Anders appeal, we affirm the convictions and sentences. Our review of the record, however, indicates a possible sentencing error arising from the mandatory minimum three-year term imposed in L.T. No. 12-654 in connection with count I, Sale/Delivery of cocaine within 1,000 feet of a church. Compare § 893.13(l)(e), Fla. Stat. (2011) (not requiring a mandatory term when the sale is within 1000 feet of a physical place of worship), with § 893.13(l)(c), Fla. Stat. (2011) (requiring a mandatory term when the sale is within 1000 feet of a park, community center or recreational facility). Three of Jiles’ four cases disposed of by his plea involved sales within 1000 feet of a park, community center or recreational facility and thus properly included the mandatory term. See State v. Mackey, 964 So.2d 772 (Fla. 2d DCA 2007). The fourth case involved the sale or delivery within 1,000 feet of a church. Because no sentencing issues were preserved for appeal, we affirm, but without prejudice to the defendant filing an appropriate post-conviction motion raising any unpreserved sentencing issue.

Affirmed.

GROSS, MAY and LEVINE, JJ., concur.

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


text:
    STONECREST PROPERTIES HOLDINGS, LLC, Stonecrest Village Partners, LLC., Clark East, Blaine East, Stephen Cella and Benjamin Minton, Appellants, v. Ilan WEISS, Appellee.
    No. 4D12-1225.
    District Court of Appeal of Florida, Fourth District.
    July 17, 2013.
    Tiffany J. Brown and Kevin A. Carreno of Kevin A. Carreno, P.A., St. Petersburg, for appellants.
    William E. Calnan of Waldman, Trigo-boff, Hildebrandt, Marx & Calnan, P.A., Weston, for appellee.
   PER CURIAM.

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

WARNER, MAY and CONNER, JJ., concur.


text:
    James LACHENAUER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-841.
    District Court of Appeal of Florida, Fourth District.
    July 17, 2013.
    Cai'ey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   CONNER, J.

James Lachenauer was charged with robbery with a firearm, aggravated assault with a firearm, possession of morphine, and trafficking in Oxycodone. He pleaded to the charges, was adjudicated guilty, and sentenced as a youthful offender to a term of prison followed by probation. The trial court found that Lachenauer violated his probation by committing a new crime, for which he was neither separately charged nor convicted. Ultimately, the trial court sentenced him to additional incarceration for violating probation, but failed to indicate that he was sentenced as a youthful offender. Lachenauer appeals, arguing (1) the evidence of a violation was insufficient; (2) the document charging him with violation of probation was insufficient; and (3) the sentencing order was improper because it failed to indicate his status as a youthful offender. We affirm on the first two issues without discussion and reverse on the final issue, remanding so that the trial court may enter a sentencing order which recognizes Lachenauer was sentenced for the violation of probation as a youthful offender.

A youthful offender who technically, but not substantively, violates probation may receive a sentence of incarceration up to either (1) the maximum sentence for the underlying crime or (2) six years, whichever is less. Rogers v. State, 972 So.2d 1017, 1019 (Fla. 4th DCA 2008); § 958.14, Fla. Stat. (2009). Additionally, credit must be given for time served. Id. Where the violation of probation is substantive and the maximum sentence for the underlying crime is more than six years, the trial court may impose incarceration for the violation in excess of the six-year cap. St. Cyr v. State, 106 So.3d 487, 489 (Fla. 4th DCA 2013). However, once a youthful offender sentence has been imposed at the initial sentencing, the youthful offender status may not be subsequently revoked upon sentencing for a violation of probation, absent circumstances which are not present in the instant case. Id.; Rogers, 972 So.2d at 1019. A prisoner’s youthful offender status affects his or her classification within the prison system, the availability of programs, and the possibility of early release. Yegge v. State, 88 So.3d 1058, 1060 (Fla. 2d DCA 2012).

Based upon the facts specific to this case, we find that although it was proper to sentence Lachenauer beyond the six-year cap, it was error for the trial court to enter a sentencing order that does not reflect his youthful offender status. As a result, we reverse and remand to the trial court with directions to enter an appropriate written sentencing order designating Lachenauer as a youthful offender.

Reversed and, remanded with directions.

DAMOORGIAN, C.J., and WARNER, JJ., concur.


text:
    Nakia SIMETON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-817.
    District Court of Appeal of Florida, Fourth District.
    July 17, 2013.
    Nakia Simeton, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Nakia Simeton appeals the denial of a rule 3.800(a) motion to correct an illegal sentence. Simeton was convicted of robbery with a firearm and sentenced to life in prison as a prison releasee reoffender and life with a fifteen-year mandatory minimum as a habitual violent felony offender (HVFO). In his motion to correct sentence, he argued in part that the trial court could not sentence him as an HVFO because the HVFO life sentence is not greater than the PRR life sentence. Walls v. State, 765 So.2d 733 (Fla. 1st DCA 2000).

On appeal, the state has no objection to affirming the PRR life sentence and striking the HVFO life sentence.

Accordingly, we reverse the denial of Simeton’s rule 3.800(a) motion and remand for the trial court to enter a corrected sentence vacating the HVFO life sentence. See Grant v. State, 770 So.2d 655 (Fla.2000); Roberts v. State, 798 So.2d 133 (Fla. 4th DCA 2001). As the state argues, this is a ministerial correction that does not require Simeton’s presence. Daniels v. State, 31 So.3d 190 (Fla. 1st DCA 2009). Simeton’s remaining claims are moot.

Reversed and Remanded.

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


text:
    Valerie DUNCAN-OSIYEMI, Appellant, v. Olayemi OSIYEMI, Appellee.
    No. 4D11-3375.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Troy W. Klein (withdrawn as counsel after filing brief), West Palm Beach, and Valerie Duncan-Osiyemi, Jupiter, pro se.

      Stuart R. Manoff and William N. Lazar-chick, Jr. of The Law Office of Stuart R. Manoff & Associates, P.A., West Palm Beach, for appellee.
   WARNER, J.

The former wife timely appeals a final judgment of dissolution of marriage. She raises three issues, two of which we affirm without discussion. We reverse, however, the trial court’s denial of any award of attorney’s fees to the wife, because it creates an inequitable depletion of the wife’s assets, when the husband has the ability to pay an award.

The husband filed his petition for dissolution of marriage in February 2010, after twelve years of marriage, which is categorized by statute as a “moderate-term marriage.” § 61.08(4), Fla. Stat. (2010). The parties have two minor children. The wife is in her mid-40s and has been a registered nurse for over 20 years. The wife also became a certified medical ease manager in 2010. Although the wife’s income was disputed, the trial court found that the wife’s gross monthly income based upon her current salary totaled about $5,000. The wife’s net income was found to be $8,851 per month. The husband is 50 years old and works as a medical doctor. Based upon the testimony of the husband and his forensic accountant, the trial court found that his net monthly income totaled $81,838 per month.

In a temporary relief order, the trial court granted $50,000 to the wife in attorney’s fees and accountant’s fees. The funds to pay these expenses were to come from the cash surrender value of insurance policies as well as the parties’ respective retirement accounts. A subsequent order provided for additional attorney’s fees to the wife to be paid through a Qualified Domestic Relations Order on the husband’s 401 (k) account, another marital asset.

In the final judgment, the court’s equitable distribution plan resulted in both parties receiving about $332,000 in equitable distribution of marital assets. The court awarded the husband a net $584,273 in assets, and the wife was awarded $116,208. To equalize the wife’s share, the court ordered the husband to pay the -wife $216,032, in payments of $10,000 per month until fully paid. The court ordered the husband to pay durational alimony to the wife at a rate of $5,000 per month for ten years and child support of $2,748 per month, with the amount to change once the wife’s durational alimony has terminated and the oldest child has reached the age of majority. The trial court denied the wife’s request to have the husband pay her attorney’s fees and costs. It found that, after considering the husband’s alimony obligation, his equitable distribution equalizing payment obligation, his child support obligation, his expenses while he is caring for the children, and the significant carrying costs associated with the marital residence which was to be sold, he would be in no position to contribute to the wife’s attorney’s fees and costs. The court found that it was not appropriate to award the wife fees based upon the husband’s future superior income, citing Derrevere v. Derrevere, 899 So.2d 1152 (Fla. 4th DCA 2005). The court also found that the wife did not have a need for fees: “In the case at bar, the Wife’s ability to earn income is $60,000.00 per year and she is receiving close to $300,000.00 pursuant to the schedule of equitable distribution.” In addition, the court found that $50,000 of the wife’s attorney’s fees was already paid out of the parties’ assets. Thus, the wife had not demonstrated a need for an award of attorney’s fees and costs. This appeal follows.

The wife contends that the trial court abused its discretion when it denied her request for an award of attorney’s fees and instead forced her to pay her attorney’s fees from her award of equitable distribution. She argues that it was inappropriate to cause her to diminish her award of equitable distribution when the husband earns so much more than she does. The standard of review of a fee award in a dissolution proceeding is abuse of discretion. Phillips v. Ford, 68 So.3d 257, 258 (Fla. 4th DCA 2010).

Section 61.16(1), Florida Statutes (2010), provides that the court in a dissolution of marriage case “may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter....” The factors to consider in awarding fees in a dissolution case are “the financial need of the requesting party and the financial ability of the other party to pay.” Derrevere, 899 So.2d at 1153. In considering a party’s financial need for attorney’s fees, it is proper “to prevent the inequitable diminution” of a spouse’s share of an equitable distribution. Bagley v. Bagley, 720 So.2d 582, 583-84 (Fla. 4th DCA 1998). This has been a consistent principle since Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), where the supreme court first explained that, “It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees.” It further noted that an award of fees is proper “to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.” Id. at 1205.

Notwithstanding an equal distribution of assets, a significant income disparity can justify an award of attorney’s fees and costs. Goldstein v. Goldstein, 90 So.3d 970, 972 (Fla. 4th DCA 2012); Margulies v. Margulies, 645 So.2d 54 (Fla. 4th DCA 1994). The Margulies case is instructive. There, the parties’ assets were equitably distributed, but there was a substantial disparity in the parties’ income in light of the husband’s $550,000 annual income from his medical practice. The trial court required the wife to pay one-half of her attorney’s fees and costs. This court, however, reversed and remanded with directions that the husband be responsible for the full amount of the wife’s fees and costs. This court emphasized that the husband was capable of paying all of the fees and costs out of current earned income without invading any assets or touching his investment income, while the wife would be required to invade her capital assets to pay for the attorney’s fees.

In the present case, the trial court abused its discretion in failing to award the wife at least a portion of her fees and costs. Contrary to the trial court’s ruling, it is apparent that the wife did have a need for attorney’s fees and costs. The denial of fees and costs to the wife will result in an inequitable diminution in the wife’s equitable distribution award, while the husband can preserve his entire distribution.

Although the trial court equalized the property division, the parties are not close in having similar resources with which to pay attorney’s fees. Even after deducting alimony and child support from the husband’s income and adding them to the wife’s income, the husband still has more than twice as much income as the wife. The husband is able to pay the equalizing payment for property distribution from his current income, and the expenses of the marital home will end as soon as the home is sold, as it has been listed for sale. Thus, within about two years, the husband will have $584,000 in assets and an income of about $24,000 per month, after paying alimony and child support. The wife, on the on the other hand, will have a monthly income, including child support, of $11,600 and will have to pay her attorney’s fees from her equitable distribution, ending up with about $200,000 in assets.

In concluding that the husband did not have the ability to pay the wife’s fees and costs, the court relied on payments that it required the husband to make in the final judgment. The trial court’s finding that the husband does not have the ability to pay attorney’s fees gives too much weight to the costs associated with the debt on the marital home as well as to the $10,000 monthly equitable distribution payments, which are being paid out of current income but will end within two years. Although the husband does have substantial monthly expenses currently, the trial court could have simply adjusted the husband’s required monthly payments so that the equalizing payment and any award of attorney’s fees would be paid off over a longer duration, or the court could have made part of the equitable distribution or attorney’s fees award payable upon the sale of the marital residence, in which there is substantial equity.

The husband clearly has the ability to pay at least a substantial portion of the wife’s fees from his income and should be required to do so. The trial court misapplied Derrevere in finding that an award of fees would be inappropriate. Unlike the present case, Demvere involved a situation where the trial court equalized the financial situation of the parties, both as to assets and income. 899 So.2d at 1153. Even though the trial court in Derrevere found that the husband had “superior future income prospects,” we held that an award of fees to the wife was improper. Id. However, the “superior future income prospects” discussed in Derrevere referred to “speculative increases in earnings” that did not translate into a present ability to pay. Id. This case, by contrast, involves a present ability to pay, based on a regular and continuous income derived from a well-established medical practice.

In sum, the court abused its discretion in denying any further award of fees to the wife, where the husband clearly had the financial ability to contribute to the wife’s fees and the wife’s equitable distribution award would be inequitably diminished should she not receive an award of fees. We thus reverse the denial of an additional award of attorney’s fees.

Affirmed in part; reversed in part and remanded for proceedings consistent with this opinion.

GROSS and LEVINE, JJ„ concur.

      . We decline to consider any issues raised for the first time in the reply brief. See J.A.B. Enters. v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992).


text:
    Paulette DE CRUZ-HAYMER, Appellant, v. FESTIVAL FOOD MARKET, INC., d/b/a Bravo Supermarket, Appellee.
    No. 4D11-3580.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.

      Michael D. Gelety, Fort Lauderdale, for appellant.
    Anne C. Sullivan of Cole Scott & Kis-sane, P.A., Miami, for appellee.
   CONNER, J.

Under the obvious danger doctrine, a landowner can avoid liability for conditions that are known or obvious to an injured party. Paulette De Cruz-Haymer sued Festival Food Market, Inc., which operates Bravo Supermarkets (“Bravo”), after she tripped on a mat outside the only public entrance and exit to its store. Paulette appeals the trial court’s entry of summary judgment based on the obvious danger doctrine. We reverse, holding that under the facts of this case, Bravo’s duty to maintain its premises in a reasonably safe condition was not discharged by the obvious nature of the mat.

Factual Background

Paulette and her husband, Linden Hay-mer, went to Bravo to buy groceries. The store had only one public entrance and exit. Neither Paulette nor Linden could remember whether a mat was present at the entrance when they entered the store on the day she fell. However, Paulette recalled that in the past, there was a mat in front of the door.

After making purchases, Linden took a shopping cart full of items back to the car while Paulette remained inside to buy some items they had forgotten. As Linden went to leave the store, he had to wait because an employee was laying a mat down outside the front door. Linden walked over the mat and noticed it was not laid completely flat, but parts were slightly “humped.” The mat was not fastened or affixed to the ground. Linden stepped over the humps to continue on his way.

When Paulette exited the store, holding a bag with two soda bottles, she tripped on the mat and fell. Paulette testified that her foot “hooked” on the mat just as she stepped out of the door. Paulette fell face down, suffering a cut above her left eye and injuring her neck, back, both elbows, and both knees. A Bravo supervisor allegedly told Linden that Paulette’s fall was Bravo’s fault.

Paulette filed a single-count complaint against Bravo, alleging Bravo was negligent in creating or allowing a dangerous condition, failing to maintain its premises, and failing to warn of a dangerous condition. Bravo responded, alleging several affirmative defenses, including that the mat was an open and obvious condition and that Paulette was negligent in failing to avoid the mat. Bravo moved for summary judgment solely on grounds that the mat was an open and obvious condition as a matter of law, and the trial court granted Bravo’s motion.

Analysis

Paulette argues the trial court erred in granting summary judgment. She further argues that while the open and obvious nature of a danger may discharge Bravo’s duty to warn, it does not discharge Bravo’s duty to maintain its property in a safe condition. She contends there are material issues of fact regarding whether Bravo maintained its property in a safe condition at the location where she fell.

The standard of review of a trial court’s ruling on a motion for summary judgment is de novo. Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009). “Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id.

“The obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.” Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 576-77 (Fla. 5th DCA 2005) (citing Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla.1986)). The test is not whether the object is obvious, but whether the dangerous condition of the object is obvious. Brady v. State Paving Corp., 693 So.2d 612, 613 (Fla. 4th DCA 1997). “In order to determine whether the doctrine applies in a given case, the courts are required to consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.” Aaron, 908 So.2d at 577.

Here, there is no genuine issue of mate-i’ial fact regarding whether the dangerous condition of the mat was open and obvious. Both Paulette and Linden knew a mat was present outside the front door of Bravo. Both knew the mat was not secured to the ground. Linden testified in deposition that he saw an employee lay the mat in front of the door, noticed the mat was not perfectly flat, and stepped over the hump in the mat to avoid it. Thus, both the existence of the mat and the fact that it was not secured and not flat was not hidden or latent in any way. The trial court did not err in holding that the mat was an open and obvious danger.

However, the trial court erred in entering a full summary judgment against Paulette. A landowner owes a business invitee two independent duties: “(1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils.” Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 734 (Fla. 4th DCA 2012). Paulette alleged a breach of both duties in her complaint. While the fact that a danger is obvious discharges a landowner’s duty to warn, it does not discharge the landowner’s duty to maintain his premises. Id.; Spatz v. Embassy Home Care, Inc., 9 So.3d 697, 699 (Fla. 4th DCA 2009); Fieldhouse v. Tam Inv. Co., 959 So.2d 1214, 1216 (Fla. 4th DCA 2007).

“When an injured party alleges that the owner or possessor breached the duty to keep the premises in a reasonably safe condition, an issue of fact is generally raised as to whether the condition was dangerous and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact it was open and obvious.” Aaron, 908 So.2d at 578. Moreover, when the failure to maintain premises is alleged, the obvious nature of the danger creates an issue of fact regarding the plaintiffs own comparative negligence. Burton, 78 So.3d at 735; Fieldhouse, 959 So.2d at 1216 (“A plaintiffs knowledge of a dangerous condition ... simply raises the issue of comparative negligence and precludes summary judgment.”) (citation omitted).

Linden testified that the hump in the mat occurred when the employee laid the mat down, as opposed to some invitee rumpling it as he or she was entering or leaving. With only one public entrance, invitees had only one route to enter the store. Linden’s testimony creates an issue of material fact regarding whether Bravo should have expected that invitees were likely to trip over a rumpled mat despite the fact the mat’s existence and condition was open and obvious. Thus, we reverse entry of summary judgment on this basis and remand for further proceedings.

Reversed and remanded for further proceedings.

DAMOORGIAN, C.J., and STEVENSON, J., concur.