author: SWANSON, J. ROWE, J.,

text:
    Brad M. BOLTON and Teresa B. Bolton, Appellants, v. SE PROPERTY HOLDINGS, LLC, as Successor to Vision Bank and Parasol West Homeowners Association, Inc., Appellees.
    No. 1D13-643.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.

      Brad M. Bolton and Teresa B. Bolton, pro se, Appellants.
    Jeffrey P. Whitton, Panama City, for Appellee SE Property Holdings, LLC.
   SWANSON, J.

We reverse the Order on Pro Se Motions enjoining appellants from filing further pleadings or motions except through counsel, because the trial court did not first provide notice and an opportunity to respond. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999). See also Delgado v. Hearn, 805 So.2d 1017, 1018 (Fla. 2d DCA 2001) (citing Spencer). In doing so, we respectfully disagree with the dissent’s position that the need for notice and an opportunity to respond dictated by the Florida Supreme Court in Spencer applies only in the context of prisoner litigation.

While pro se prisoner litigation was indeed the salient issue in Spencer, the supreme court’s decision in that case was grounded on a much broader base relevant to all citizens, as exemplified by the court’s reliance on the general “constitutional guarantee of citizen access to the courts, with or without an attorney.” 751 So.2d at 48 (citing “art. I, § 21, Fla. Const. (‘The courts shall be open to every person for redress of any injury .... ’)”) (emphasis added). When read in context, the various parts making up the Spencer opinion do not lead to an exclusive holding; rather, it is abundantly clear the supreme court was mindful of the rights of all pro se litigants, but, in particular, as was the case before it, with pro se criminal litigants. This point is self-evident in the court’s following statements: “Thus, denying a pro se litigant the opportunity to file future petitions is a serious sanction, especially where the litigant is a criminal defendant ....”; and, “However, any citizen, including a citizen attacking his or her conviction, abuses the right to pro se access by filing repetitious and frivolous pleadings .Id. The text of this decision must be read as a whole. It does not exclude pro se civil litigants from its doctrine, but includes pro se criminal litigants within its protection. Thus, due process and the right to access to courts dictates that all pro se litigants, civil and criminal alike, must be given notice and an opportunity to respond before preventing the filing of further frivolous pleadings.

Furthermore, we do not read our holding as “unreasonably” interfering with the “inherent authority of the trial court to sanction a litigant who disrupts proceedings before the court,” as troubles our colleague in her dissent. First, Spencer is utterly silent on that issue, yet its ruling requiring notice and an opportunity to respond stands as clear precedent for our decision. See Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973). Second, we do not view the task of entering a show cause order as an unreasonable impediment to a trial court’s exercise of this inherent authority. Accordingly, we join our sister court in Delgado v. Hearn and apply the dictates of Spencer to the instant civil cause of action.

On remand, if the trial court remains convinced that appellants should be sanctioned, it must first issue an order to show cause why the sanction should not be imposed and permit appellants a reasonable time to respond.

REVERSED and REMANDED, with instructions.

CLARK, J., concurs; ROWE, J., dissents with opinion.

ROWE, J.,

dissenting.

Because the process outlined in State v. Spencer, 751 So.2d 47 (Fla.1999), was not required before the trial court could impose a limitation on the Boltons’ right to appear before the court, I respectfully dissent.

In 2005, the Boltons received a loan from Vision Bank (“the bank”) and secured the loan with a mortgage on a lot on Perdido Key in Escambia County. In 2008, the bank filed suit against the Bol-tons after they defaulted on the loan. The Boltons filed a pro se answer to the complaint, which included affirmative defenses and counter-claims. There were many disputes during the discovery process; ultimately, the trial court sanctioned the Bol-tons for failing to abide by the court’s orders by striking their pleadings and entering a default judgment in favor of the bank on its claim for damages. The trial court also entered a final judgment of foreclosure.

Following the entry of the final judgments, the Boltons continued to assert defenses and seek discovery regarding the merits of the case. This activity continued for over two years. The trial court denied each of the post-judgment motions filed by the Boltons. Based on successfully defending against the Bolton’s meritless post-judgment motions, the bank sought a judgment for supplemental attorney’s fees and was awarded $20,793 in attorney’s fees pursuant to section 57.115, Florida Statutes.

When the bank resumed seeking discovery in aid of execution of the final judgment of foreclosure, the Boltons’ motion practice and discovery requests relating to merit issues increased. After a hearing, the court disposed of the pending discovery issues and ordered the Boltons to submit to a deposition. In response, the Bol-tons filed a barrage of discovery requests and motions.

On January 11, 2013, the trial court entered an “Order on Pro Se Motions,” in which it denied eight post-judgment motions after finding that the Boltons’ motions were “vexatious” and demonstrated “reprehensible gamesmanship.” The trial court observed that it and court personnel had spent over three hours dealing with the Boltons’ motions, which deprived other deserving litigants of a speedy resolution of their disputes. Relying on its inherent power to sanction vexatious conduct, the court ordered the Boltons “to not file any motion, pleading, notice, request, nor other filing of any kind in this matter except through counsel properly admitted to appear before this Court in this case.” The Boltons challenge the order, arguing that the trial court violated their due process rights in barring them from further pro se appearances in the case.

Relying on Spencer and following the decision of the Second District in Delgado v. Hearn, 805 So.2d 1017 (Fla. 2d DCA 2001), the majority concludes that in order to accord due process to the Boltons, it was necessary for the trial court to issue a show cause order before barring the Bol-tons from further pro se appearances. In so holding, this Court, for the first time, expands the requirements of Spencer to a case involving a civil litigant.

I would decline to require the Spencer process in this case for three reasons. First, the supreme court in Spencer did not require application of its holding beyond the context of a challenge to a criminal judgment and sentence. The decision in Spencer arose from an order barring an inmate from further pro se filings concerning his conviction and sentence. 751 So.2d at 47. The court expressly stated that the only issue before it was “whether a trial court must first provide a litigant notice and a reasonable opportunity to respond before prohibiting pro se attacks on his or her conviction and sentence as a sanction for prior repeated and frivolous motions.” Id. at 48 (emphasis added). Moreover, in holding that a show cause order should issue before barring an inmate from appearing pro se, the court held: “To achieve the best balance of a litigant’s right of access to courts and the need of the courts to prevent repetitious and frivolous pleadings, it is important for courts to first provide notice and an opportunity to respond before preventing that litigant from bringing further attacks on his or her conviction and sentence.” Id. (emphasis added). This limiting language in the opinion suggests that the Spencer process may not be required outside the context of a challenge to a criminal judgment and sentence.

Second, the due process concerns present in the Spencer case are not implicated here. In pronouncing its holding in Spencer, the supreme court adopted the reasoning of this Court in Spencer v. State, 717 So.2d 95 (Fla. 1st DCA 1998). There, we recognized that before an inmate could be barred from appearing pro se to challenge his criminal judgment and sentence, due process required notice and an opportunity to be heard. This Court recognized that in a criminal action, two important constitutional interests are at stake: liberty and access to the courts. Id. at 97. Those same interests are not present here.

The constitutionally protected liberty interest is clearly not implicated in the trial court’s order limiting the Boltons’ post-judgment appearances in this foreclosure action. Nor does the trial court’s order interfere with the right of access to the courts. In considering the right of access to the courts, it is not only the rights of the Boltons that must be considered. Rather, courts have “a responsibility to ensure every citizen’s right of access to the courts.” Peterson v. State, 817 So.2d 838, 840 (Fla.2002). Far from interfering with the right of access to the courts, the trial court’s order here, limiting the Boltons’ right to appear, furthers the right of access to the courts. This is because the limitation on the Boltons’ right to appear permits the trial court to “devote its finite resources to the consideration of legitimate claims filed by others.” Id. In its order, the trial court carefully recounted the burden imposed on the court system by the Boltons’ meritless filings:

The Court, and Court Personnel, have spent over three hours dealing with these spurious motions and arguments. The Court has, literally, hundreds of civil, criminal, and probate cases with legitimate issues requiring judicial attention. For the Court to spend this much time on entirely meritless pleadings robs other deserving litigants of a speedy resolution of their dispute. Time wasted on the frivolous, meritless filings of the Boltons is time taken away from litigants and wards and estates and defendants and the State with legitimate claims. Baldwin v. State, 104 So.3d 390 (Fla. 1st DCA 2013). The Court has the inherent power to sanction such vexatious conduct, as well as to Order the pro se litigants to appear only through counsel. Slizyk v. Smilack, 734 So.2d 1166 (Fla. 5th DCA, 1999).

Because the trial court’s order implicates no liberty interest nor the right of access to the courts, the trial court was not required to follow the process in Spencer before barring the Boltons from further pro se appearances.

Finally, imposing the requirements of Spencer in this case unreasonably interferes with the inherent authority of the trial court to sanction a litigant who disrupts proceedings before the court. Jackson v. Fla. Dep’t of Corrections, 790 So.2d 398, 400-01 (Fla.2001). The order barring the Boltons from further pro se appearances followed entry of a final judgment on damages, entry of a judgment of foreclosure, and two years of numerous, meritless post-judgment motions filed by the Bol-tons. Before imposing the limitation on the Boltons’ right to appear before the court, the trial court imposed lesser sanctions, including striking pleadings filed by the Boltons and awarding attorneys’ fees to the bank for defending against the mer-itless post-judgment motions filed by the Boltons. After exhausting other alternatives to address the Boltons’ conduct, the trial court, exercising its inherent authority, entered a narrowly-tailored order barring the Boltons from further pro se filings with regard only to the case at issue.

Because the process outlined in Spencer was not required in this case, and because the trial court properly exercised its inherent authority to regulate vexatious conduct, I would affirm the order of the trial court barring the Boltons from future pro se filings in this matter.

      . SE Property Holdings, LLC is the successor to Vision Bank.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marcus Eugene MEANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5241.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.

      Nancy A. Daniels, Public Defender, Tallahassee, and Richard J. D’Amico, Assistant Public Defender, Ormond Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appeal taken by Appellant, Marcus Eugene Means, makes six arguments challenging his four convictions and sentences for grand theft auto (Count I); obtaining a vehicle with intent to defraud by trick or false representation (Count II); stopping payment on a check (Count III); and giving a false name or identification to a police officer (Count IV). We find no merit in four of Appellant’s arguments and affirm without discussion. Appellant is correct, however, as to his arguments regarding double jeopardy and the restitution ordered by the trial court, and so we reverse these aspects of his case below.

First, Appellant argues that his dual convictions for grand theft auto and obtaining a vehicle with intent to defraud by trick or false representation, based on the same transaction, amount to being convicted and punished for the same offense in violation of constitutional protections against double jeopardy. See Vasquez v. State, 711 So.2d 1305, 1306-07 (Fla. 2d DCA 1998). The State does not disagree, but rather concedes that Appellant asserts a valid double jeopardy argument. Because the parties’ agreement on Appellant’s double jeopardy argument is well-taken, we hold Appellant’s dual convictions for grand theft auto and obtaining a vehicle with intent to defraud by trick or false representation are impermissible.

Finding impermissible dual convictions, we now must determine which conviction to set aside. In Pizzo v. State, the Florida Supreme Court directed appellate courts in this situation to set aside the conviction on the lesser offense and to affirm the greater offense. 945 So.2d 1203, 1206 (Fla.2006); see also State v. Barton, 523 So.2d 152, 153 (Fla.1988) (holding that when one of two convictions must fall under a double jeopardy analysis, the conviction of the lesser crime should be set aside). According to Pizzo, the lesser offense is that in which the elements of the crime “are always subsumed within the greater, without regard to the charging document or evidence at trial.” 945 So.2d at 1206 (quoting State v. Florida, 894 So.2d 941, 947 (Fla.2005)); see also State v. McCloud, 577 So.2d 939, 941 (Fla.1991).

In this case, a comparison of the elements of both offenses reflects that all the elements of obtaining a vehicle with intent to defraud by trick or false representation under § 817.52(1), Florida Statutes, (Count II), are included within the elements of grand theft under § 812.014(1), (Count I). Accordingly, we reverse Appellant’s judgment and sentence on the lesser offense in Count II, obtaining a vehicle with intent to defraud by trick or false representation, and affirm Appellant’s judgment and sentence on the greater offense in Count I, grand theft auto.

Appellant raises a second meritorious argument with respect to his sentence. He claims he was erroneously ordered to pay restitution in the amount of $31,540, whereas the highest amount referred to at trial was $15,945. Here, once again, the State concedes that the amount of restitution ordered does not comport with the evidence. It is well settled that the amount of restitution cannot exceed the actual damages suffered by the victim, Soriano v. State, 968 So.2d 112, 115 (Fla. 4th DCA 2007), and must be proven by substantial competent evidence. Glaubius v. State, 688 So.2d 913, 916 (Fla.1997); Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005). Because the evidence does not support a restitution amount greater than $15,945, we reverse the order of restitution to pay $31,540 and remand for a new determination of the proper restitution amount.

Accordingly, we affirm Appellant’s convictions and sentences on Counts I, III, and IV. We reverse Appellant’s conviction and sentence on Count II and remand with instructions to the trial court to dismiss Count II. We also reverse the restitution order and remand to the trial court for a new determination of restitution.

AFFIRMED in part, REVERSED in part and REMANDED.

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

      . The elements of obtaining a vehicle with intent to defraud by trick or false representation are: (1) intent to (2) obtain a vehicle by [3] defrauding the owner or any person lawfully possessing the vehicle by trick or false representation. § 817.52(1), Fla. Stat. (2013). The elements of grand theft are: (1) knowingly (2) obtaining or using, or endeavoring to obtain or use the property of another (3) with intent to deprive the person of a right to the property or to appropriate the property to one’s own use. Id. § 812.014(1). See also Fla. Std. Jury Instr. (Crim.) 14.1.


author: CLARK, J.

text:
    Buford CODY, Heir, Appellant, v. David CODY, Melvin Cody, and Carolina Cody, Appellees.
    No. 1D12-5550.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.

      Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola and J. Rod Cameron of J. Rod Cameron P.L., Pace, for Appellant.
    James R. Green of the Law Firm of James R. Green, P.A., Pensacola and Joseph W.C. Boyles of Boyles & Boyles, PLLC, Pensacola, for Appellees.
   CLARK, J.

Buford Cody appeals the final order of the probate court which determined the boundaries of particular portions of real property to individuals, when no such specifics were contained in the will of Earler T. Martin, Jr. Also before this Court for review is the previous order of the probate court, entitled “Order Construing Will,” which was not an appealable final order upon its issuance on March 8, 2012 because further judicial labor in the probate proceeding was contemplated. See Fla. R. App. P. 9.170. Because we find that the orders constitute reversible error, the orders are reversed and this cause remanded.

Mr. Earler T. Martin, Jr. and his wife, Cleo Myree Beck Martin, had prepared and executed their wills in 2007. Later that same year, Mrs. Martin passed away and Mr. Martin survived her. Pursuant to section 732.514, Florida Statutes, the devises in Mrs. Martin’s will vested in her devisees upon her death.

Mr. Martin died testate on January 16, 2010. Mr. Martin’s will specifically named “three (3) children, Buford Cody ... Melvin Cody ... and David Cody” and specified that “[a]ll references in this will to my ‘child’ or ‘children’ are to said named child or children.” Buford, Melvin, and David Cody were Mrs. Martin’s sons from a previous marriage, but there is no indication that Mr. Martin intended his property to pass to any other persons or that Mr. Martin’s references in his will to Buford, Melvin and David were mistakes or typographical errors.

Mr. Martin’s will designated Buford Cody as the personal representative (“PR”) of his estate.

The real property of the estate was addressed in paragraph 3.1, as follows:

(b) I devise the house and 12.5 acres located at 2800 Myree Lane, Pace, FL 32571, to my husband, Earler T. Martin, Jr. Should Earler T. Martin predecease me, then I devise the house and acreage in my son, Buford Cody, to divide between my heirs, as he sees fit and proper.

Mr. Martin’s devise “to my husband, Ear-ler T. Martin, Jr.” was obviously a typographical error — language copied from Mrs. Martin’s will and not re-worded to apply to Mr. Martin’s perspective. However, the parties agreed that this phrase was intended to refer to Mrs. Martin, in the event she survived Mr. Martin. Because Mrs. Martin predeceased Mr. Martin, the devise to the surviving spouse was ineffective and this alternative contingency gave effect to the subsequent phrase: “I devise the house and acreage in my son, Buford Cody, to divide between my heirs, as he sees fit and proper.”

Mr. Martin’s will also provided:

4.1 Residue. All the residue of my estate ... shall be divided among my heirs, as my Personal Representative see[s] fit. For my children who predecease, then their share of the estate shall be distributed to their descendants, per stirpes.

It was undisputed that none of the “children,” Buford, Melvin, or David Cody, predeceased Mr. Martin.

Buford Cody commenced the probate proceeding in the circuit court on July 25, 2011, by filing his petition for administration of the estate of Mr. Martin. § 733.202, Fla. Stat. His petition named Buford Cody, Melvin Cody, and David Cody, all of Santa Rosa County, Florida, as beneficiaries. Mr. Martin’s will was attached to the petition. No order admitting the will to probate and no order appointing Buford Cody the PR under the will was issued by the probate court. Fla. Prob. R. 5.235 (after petition for administration filed and will admitted to probate, court shall appoint qualified PR).

On September 7, 2011, two of the beneficiaries, Melvin Cody and David Cody, filed their objection to the petition for administration. § 732.212(3), Fla. Stat. Their objection did not challenge the validity of the will, the qualifications of the PR, the venue, or the jurisdiction of the court. Instead, the brothers complained that Buford Cody had been disposing estate assets pri- or to being appointed PR by the court and without proper accounting of the value of the assets and proceeds of the sales. See § 733.604, Fla. Stat. (PR required to file verified inventories and accountings). No order addressing this objection is contained in the record.

Melvin and David Cody then filed their petition to construe will and determine beneficiaries in October, 2011 and amended this petition in November, 2011. They alleged that the administration of Mrs. Martin’s estate was still pending, case number 2008 CP 105, and that Mr. Martin had died “prior to receiving a deed to the property in Cleo’s estate.” They further alleged that Mrs. Martin had intended the 12.5 acres of real property with the house to pass to her husband if she predeceased him, and then in equal shares to her children when Mr. Martin died. However, they complained that Buford Cody planned to retain the entire parcel for himself rather than distributing it equally between the brothers. Accordingly, Melvin and David Cody sought an order from the court dividing “the estate up into roughly three equal shares as the personal representative sees fit to be distributed to the heirs.”

The trial court entered its Order Construing Will on March 8, 2012. Apparently, a hearing took place prior to this order, but no transcript of the hearing is contained in the record. Without further explanation, the trial court’s order stated that “[t]he intent of the testator, Cleo My-ree Martin, was to devise 6.25 acres to the remaining grandchild, Carolina Cody.” The trial court ordered the PR to define and distribute 6.25 acres of Mr. Martin’s estate’s real property to Carolina Cody, the daughter of David Cody, and divide the remaining 6.25 acres of the estate “among the heirs, Buford Cody, Melvin Cody and David Cody, at the discretion of the Personal Representative, Buford Cody.”

The Order Construing Will was not a final order for purposes of appeal because further judicial action was contemplated regarding the legal description of the parcels to be distributed to Carolina, her father, and her uncles. See Fla. R. App. P. 9.170(b); Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005) (determination that beneficiary was entitled to share of estate not final until specific award was defined); In re Estate of Walters, 700 So.2d 434, n. 1 (Fla. 4th DCA 1997). Appellant’s notice of appeal of the probate court’s final Order Determining Boundaries of Property to be Distributed was effective to subject the earlier Order Construing Will to this Court’s appellate review. Fla. R. App. P. 9.170(e).

The Order Construing Will must be reversed for several reasons. First, the probate court’s order construing will is premature because the record does not contain an order admitting the will to probate or appointing Buford Cody the PR under the provisions of the will. “A will may not be construed until it has been admitted to probate.” § 733.213, Fla. Stat. While Mr. Martin’s will is self-proving, pursuant to section 732.503, Florida Statutes, and is thus admissible to probate without further proof pursuant to section 732.201, the probate court has not actually admitted the will to probate.

Next, the order erroneously states that the testator is Cleo Myree Martin and that Mrs. Martin intended a devise of her real property to Carolina Cody. Of course, the testator in the probate proceedings in this case is Mrs. Martin’s husband who survived her, Mr. Earler T. Martin, Jr. While Mrs. Martin’s intent might have been relevant to the administration of her estate, it is Mr. Martin’s intent, as expressed in his will, that is relevant to the probate of his estate. Carolina Cody is not mentioned in Mr. Martin’s will by name or description and David Cody, Carolina’s father and one of the specifically named beneficiaries in Mr. Martin’s will, did not predecease Mr. Martin. The Order Construing Will does not explain the finding that Carolina Cody should receive a distribution of real property with any finding that Mr. Martin’s will or portion thereof is invalid, unclear about the identities of the beneficiaries, or ineffective to dispose of all of the property in Mr. Martin’s estate. The probate court simply failed to recite any justification for its deviation from the terms of Mr. Martin’s will and its award of a portion of Mr. Martin’s estate to Carolina Cody.

Likewise, the probate court’s determination of beneficiaries, and particularly the determination that Carolina Cody should be a beneficiary of Mr. Martin’s estate, is unsupported by any finding by the probate court that section 732.105, Florida Statutes, should apply. Section 732.105 allows the determination of beneficiaries “when property passes by intestate succession or when the will is unclear and there is doubt about: (a) who is entitled to receive any part of the property, or (b) the shares and amounts that any person is entitled to receive.” See also Fla. Prob. R. 5.385. Buford Cody filed Mr. Martin’s will with his petition for administration and the probate court never made any finding that Mr. Martin’s property should pass by intestate succession or that his will left doubt about who is entitled to receive estate property or the shares and amounts any person is entitled to receive.

The probate court’s order determining boundaries of property to be distributed, specifically describing the parcel to be distributed to Carolina and further directing that the remainder of the real property be divided “in three equal shares between Buford Cody, Melvin Cody, and David Cody,” must also be reversed because the order contravenes the terms of Mr. Martin’s will without any explanation. It is well settled that “the testator’s intent as expressed in the will controls the legal effect of the testator’s dispositions.” Estate of Walters v. Edwards, 700 So.2d 434, 436 (Fla. 4th DCA 1997). The testator’s expressed intent “is to be given full force and effect to the extent possible so long as it does not violate the law or public policy.” Id.

Mr. Martin’s directive to the PR to divide both the real property described, and any residuary estate not specifically devised, “between my heirs, as he sees fit and proper” does not require the PR to equally divide the property. When a will devises estate property to a person, expressing the testator’s hope that the person “will honor all of [the testator’s] ‘requests,’ ” then “the unambiguous language of the [will] devises the entire residuary to [that person], who then has the discretion to honor [testator’s] requests.” Glenn v. Roberts, 95 So.3d 271, 273 (Fla. 3d DCA 2012). As stated in In re Estate of Barker, 448 So.2d 28, 31-32 (Fla. 1st DCA 1984):

The court may not alter or reconstruct a will according to its notion of what the testator would or should have done.... It is not the purpose of the court to make a will or to attempt to improve on one that the testator has made. Nor may the court produce a distribution that it may think equal or more equitable.

See also Owens v. Estate of Davis, 930 So.2d 873, 874 (Fla. 2d DCA 2006).

Here, Mr. Martin’s devise to Buford Cody vested Buford’s interest in the real property upon Mr. Martin’s death. § 732.514, Fla. Stat. The will’s lack of restrictions on Buford Cody’s discretion to share the property with his brothers gave him the authority to divide it in any way he saw “fit,” including no division at all. The fact that his brothers disagreed with his actions did not render the will ambiguous or invalidate any portion of the will. In addition, the will did not provide any requirement that the brothers agree on a distribution of the estate property. The will specifically provided Buford Cody with the power and authority to decide how the property would be divided. The probate court’s orders devising the property to a person not named or described in the will and determining a particular division of the real estate as the court saw fit usurped Buford Cody’s authority under the will without legal basis.

The probate court’s order construing will, entered March 8, 2012, and order determining boundaries of property to be distributed, entered October 18, 2012, are REVERSED and this case is REMANDED for proceedings which comply with chapters 732 and 733, Florida Statutes, the Florida Rules of Probate Procedure, and applicable legal precedent.

ROWE and SWANSON, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    A.L., by his parent P.L.B., and P.L.B. for herself, and Rosemary N. Palmer, attorney, Appellants, v. JACKSON COUNTY SCHOOL BOARD, Appellee.
    No. 1D13-0908.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.
    Rosemary N. Palmer, pro se, for Appellants.
    Bob L. Harris of Messer Caparello, P.A., Tallahassee; H. Matthew Fuqua and Frank E. Bondurant, Marianna, for Appel-lee.
   PER CURIAM.

A.L., his mother, P.L.B., and their attorney, Rosemary N. Palmer, appeal a final order of the administrative law judge awarding attorney’s fees under section 57.105(5), Florida Statutes (2012), to the Jackson County School Board as the prevailing party in a proceeding brought under section 1003.57, Florida Statutes (2012). We reverse and remand.

The administrative law judge had dismissed A.L.’s and P.L.B.’s request for a due process hearing, and appellees filed a motion for attorney’s fees under section 57.105(5), which provides:

In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney’s fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party’s attorney or qualified representative in the same manner and upon the same basis as provided in subsections (l)-(4).

The proceeding below was not an “administrative proceeding under chapter 120,” but was instead controlled by the procedures outlined in section 1003.57(¿ )(b). That subparagraph expressly provides, in part, that due process hearings “are exempt from ss. 120.569, 120.57, and 286.011, except to the extent that the State Board of Education adopts rules establishing other procedures.” As applied to the case at bar, this provision means that the due process hearing appellants sought could not be conducted under the two statutes in chapter 120 dealing with administrative hearings, but could be conducted under rules that the agency might adopt regarding such hearings. The Department of Education enacted such a rule in Florida Rule of Administrative Procedure 6A-6.0331K9).

REVERSED and REMANDED.

VAN NORTWICK and PADOVANO, JJ., concur.

BENTON, J., concurs with opinion.

BENTON, J.,

concurring.

The administrative law judge did not award fees merely because the School Board had prevailed in an Individuals with Disabilities Education Act (IDEA) case, but because the judge concluded that the request for a second due process hearing for an exceptional student, while proceedings already initiated on behalf of the same student were ongoing, was “frivolous” or, in the words of the statute, because

the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented ... or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

§ 57.105(1), Fla. Stat. (2012). The judge acknowledged that section 57.105 applied only in (judicial proceedings and) “administrative proceedings under chapter 120,” § 57.105(5), Fla. Stat. (2012), and concluded that the proceedings appellant initiated qualified. The final order explained in some detail why the second petition was bound to be a waste of resources for all concerned, a conclusion with which the majority opinion does not seem to take issue.

Although the proceedings in question here undoubtedly constitute “administrative proceedings,” I share the majority opinion’s view that they are not “administrative proceedings under chapter 120.” § 57.105(5), Fla. Stat. (2012). In my view, however, the proceedings underlying the present attorneys’ fee litigation arise, not under section 1003.57(1), Florida Statutes (2012), but under Florida Rule of Administrative Procedure 6A-6.03311(9). While the distinction is of no importance in the present case, the statute seems to confer authority on the State Board of Education to disavow or reverse the exemption from sections 120.659, 120.57 and 286.011, when it provides: “Such hearings are exempt from ss. 120.569, 120.57, and 286.011, except to the extent that the State Board of Education adopts rules establishing other procedures.” § 1003.57(Z )(b), Florida Statutes (2012).

      . Rule 6A-6.03311(9) includes its own provision authorizing court-awarded attorney’s fees pursuant to the requirements of subpara-graph (x).

      . The final order set out conclusions of law that included the following:
      28. In this case, 20 U.S.C. § 1515(j), provides as follows:
      During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents agree, the child shall remain in the then-current educational placement of the child, or, if applying initial admission to a public school program until all such proceedings have been completed, (emphasis added).
      29. Federal district courts have held that because of the mandatory stay-put provisions of the IDEA, schools are under no obligation to amend or review an IEP that is the subject of litigation because when stay-put is in effect, the school district is powerless to alter a child's IEP without the explicit agreement of the parents. See C.P. v. Leon Cnty. Sch. Bd., 483 F.3d 1151, 1155-56 (11th Cir.2007); Digre v. Roseville Sch. Indep. Dist. No. 623, 841 F.2d 245 (8th Cir.1988); and Johnson v. Special Educ. Hearing Office, 287 F.3d 1176 (9th Cir. 2002); see also M.P. v. Leon Cntv. Sch. Bd., DOAH Case No. 04-0517E (Fla. DOAH Mar. 30, 2004) and K.G. v. Santa Rosa Cntv. Sch. Bd. (Fla. DOAH Case No. 04-1588E) (Fla. DOAH Aug. 31, 2004).
      30. Thus, because the automatic stay was in place, the claims made in the Amended Petition were not supported by the material facts necessary to establish the claims set forth therein; nor were the claims supported by the application of the law to those material facts.
      31. Notably, Respondent's attorney in this matter is well aware of the current law on the issue involved in this case since she is the same attorney who raised the same arguments in the C.P. case cited above and which had nearly identical facts to the issues raised here. Clearly, at the time of the filing of the Amended Petition, Respondent and Respondent's counsel knew or should have known that the claims made in the Amended Petition were not supported by the material facts necessary to establish the claims set forth therein; nor were the claims supported by the application of the law to those material facts.


text:
    Collins POWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3484.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.
    Collins Powers, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. The dismissal is without prejudice to appellant’s right to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Daniels v. State, 892 So.2d 526 (Fla. 1st DCA 2004). But see Gary v. State, 5 So.3d 713 (Fla. 1st DCA 2009).

ROBERTS and MAKAR, JJ., concur.

WETHERELL, J., concurs in result only.


text:
    Donna I. NEHRICH, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and AT & T Mobility Services, LLC, Appellees.
    No. 1D13-2402.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.
    Donna I. Nehrich, pro se, for Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appel-lees.
   PER CURIAM.

We treat the Reemployment Assistance Appeals Commission motion to relinquish jurisdiction as a concession that procedural error occurred on account of the appeals referee’s failure to secure a waiver of appellant’s right to proper notice of the hearing before the referee. See Fla. Admin. Code R. 73B-20.015. Accordingly, we reverse the Commission’s order affirming the appeals referee’s determination, and consistent with section 120.68(7)(c), Florida Statutes (2013), remand this matter to the Commission for further proceedings. Appellant’s “Motion to Reverse Decision,” to the extent it requests an order directing the award of unemployment compensation benefits without further proceedings, is denied.

ROBERTS, WETHERELL, and MAKAR, JJ., concur.


text:
    Richard HANNANS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4207.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.
    Richard Hannans, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on April 15, 2011, in Duval County Circuit Court case number 2010-CF-011157-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

ROBERTS, WETHERELL, and MAKAR, JJ., concur.


author: LaROSE, Judge.

text:
    Henry M. DRIGGERS, Appellant, v. Robin Y. DRIGGERS, Appellee.
    No. 2D13-1021.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Mark A. Sessums of Sessums Law Group, P.A., Lakeland, for Appellant.
    Stephen F. Baker, Winter Haven, for Appellee.
   LaROSE, Judge.

Henry M. Driggers, the former husband, appeals an order denying his motion to modify his alimony obligations, and granting the former wife’s, Robin Y. Drig-gers, motion for contempt for his failure to pay alimony. We have jurisdiction. See Fla. R. App. P. 9.130(a)(4). The trial court abused its discretion in finding no change in circumstances warranting a reduction in alimony. Additionally, no competent substantial evidence supports a finding of contempt. Accordingly, we reverse.

The trial court dissolved the parties’ marriage in 2003 and ordered Mr. Drig-gers to pay $1250 per month in permanent periodic alimony. Mr. Driggers timely met this obligation until sometime in 2011. In late 2011, Mrs. Driggers moved for contempt, alleging that Mr. Driggers had not paid alimony since May 2011. In response, Mr. Driggers petitioned to abate, terminate, or reduce his alimony obligation due to his changed circumstances.

Mr. Driggers, with his two sons, owns and operates an air conditioning business. Business activity has dropped forty percent since 2008-09. Efforts to reinvigorate the business have yielded little. Mr. Driggers’ monthly income now totals $1154, with monthly expenses of $1168.25. Mr. Driggers has no ability to take more money from the business. Furthermore, his age precludes him from obtaining new employment. Mrs. Driggers presented no contravening evidence. She focused, instead, on the fact that Mr. Driggers, apparently through his business, maintains a lease on Georgia hunting property, where he spends up to sixty days a year. Mr. Driggers countered that the modest lease payment paid for itself by generating business from referral sources.

Since the 2003 dissolution, Mrs. Drig-gers’ income increased to over $3400 per month. Despite some health ailments, she has enjoyed substantial employment. She spends money on discretionary items for family, friends, pets, and entertainment. She owns real property and has retirement savings. In contrast, Mr. Driggers has few assets. He owns an old Ford F-250 truck that he uses for work, a four-wheeler of little value, and a tractor of little value. The trial court valued these assets at slightly over $6500.

The trial court denied Mr. Driggers’ petition for modification. It concluded that there were no material changes in his circumstances because his expenses were paid by his business and he voluntarily elected to spend several weeks a year at the Georgia hunting camp. The trial court also granted the former wife’s motion for contempt.

We review the trial court’s findings regarding modification of alimony for an abuse of discretion. See Wilson v. Wilson, 37 So.3d 877, 881 (Fla. 2d DCA 2010) (citing Leonard v. Leonard, 971 So.2d 263, 266 (Fla. 1st DCA 2008)).

In considering modification the court can and should take into consideration all factors and contrast the total circumstances at the time of the original order with all the current circumstances. Generally, to justify an alimony modification, the moving party must establish: (1) a substantial change in circumstances; (2) the change was not contemplated at the time of the final judgment of dissolution; and (3) the change is sufficient, material, permanent, and involuntary.

Id., 37 So.3d at 880-81 (internal quotations and citations omitted).'

Here, Mr. Driggers demonstrated an uncontemplated substantial change in circumstances that was not voluntary or temporary. He established a forty-percent drop in his business income, which was not likely to improve soon, the unavailability of additional money to him from the business, lack of substantial assets to liquidate, and grim job expectations. See Antepenko v. Antepenko, 824 So.2d 214, 215 (Fla. 2d DCA 2002) (noting that a thirty-eight percent change in circumstances met the substantial change in circumstances test). His monthly expenses exceed his income. We emphasize that Mrs. Drig-gers failed to rebut Mr. Driggers’ evidence.

Under these circumstances, we must also conclude that the contempt order is unsupported by competent substantial evidence and constitutes an abuse of discretion. See Sabatini v. Wigh, 98 So.3d 244, 246 (Fla. 1st DCA 2012) (holding that contempt judgment is clothed with a presumption of correctness subject to be overturned only upon a clear showing that trial court abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error; affirming contempt finding because it was supported by competent substantial evidence); Harris v. Hampton, 70 So.3d 747, 748 (Fla. 4th DCA 2011) (same iteration regarding presumption of correctness and abuse of discretion standard); Rojo v. Rojo, 84 So.3d 1259, 1262 (Fla. 3d DCA 2012) (applying abuse of discretion standard of review in context of civil contempt); Jaffe v. Jaffe, 17 So.3d 1251, 1253 (Fla. 5th DCA 2009) (reviewing for abuse of discretion the trial court’s decision to exercise its power to find a party in civil contempt).

Unquestionably, the final judgment of dissolution created a presumption that Mr. Driggers has the ability to pay alimony. He bears the burden to show that he can no longer pay due to changed circumstances. See Kossmann v. Kossmann, 550 So.2d 168, 169 (Fla. 2d DCA 1989) (citing Bowen v. Bowen, 471 So.2d 1274 (Fla.1985) and Connolly v. Connolly, 543 So.2d 356 (Fla. 2d DCA 1989)). Mr. Driggers met that burden with a substantial amount of unrebutted evidence. See id.

The trial court abused its discretion when it denied Mr. Driggers’ motion to abate, terminate, or reduce alimony based on his substantial change in circumstances and granted Mrs. Driggers’ motion for contempt. We reverse and remand to the trial court for further proceedings.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

      . By January 2013, the time of the hearing on the competing motions, the alimony arrearage totaled $25,000.


author: WALLACE, Judge.

text:
    John M. RYAN, Petitioner, v. LANDSOURCE HOLDING COMPANY, LLC, Respondent.
    No. 2D13-1270.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.

      Laura H. Howard and Michael C. Addison of Addison & Howard, P.A., Tampa, for Petitioner.
    Paige A. Greenlee of Sivyer Barlow & Watson, P.A., Tampa, for Respondent.
   WALLACE, Judge.

The Petitioner, John M. Ryan, seeks review by certiorari of the circuit court’s order compelling him to produce his personal financial records in response to a request for production made by the Respondent, Landsource Holding Company, LLC. The circuit court’s order departs from the essential requirements of the law and causes irreparable harm to Mr. Ryan by directing him to produce personal financial records that are irrelevant to any issues in the pending litigation, thereby violating his right to privacy. Accordingly, we grant the writ and quash the order under review.

I. THE FACTS AND PROCEDURAL BACKGROUND

Landsource Holding brought an action for damages against Mr. Ryan based on his alleged breach of a note and modification agreement. Mr. Ryan raised numerous affirmative defenses to the action, including the defense of anticipatory repudiation of the contract. Later, Land-source Holding served a third request for production on Mr. Ryan asking him to produce “[a]ll documents that demonstrate your financial status, viability, and assets, including but not limited to your financial ability to make the payments] due under the Note on May 31, 2008[, August 31, 2008, and November 30, 2008].” Mr. Ryan objected to the requested production on the grounds that the information sought “is irrelevant and is not likely to lead to the discovery of admissible evidence and seeks information and documents that contain [Mr. Ryan’s] confidential financial information protected by the constitutional right of privacy.” In the order under review, the circuit court directed Mr. Ryan to “produce documents that are responsive to [the] Third Request for Production of documents within twenty (20) days of the date of this Order.” Mr. Ryan timely filed his petition for certiorari seeking review of the order.

II. FRAMING THE ISSUE

To be entitled to certiorari review, Mr. Ryan must establish that in entering the subject order, the circuit court departed from the essential requirements of the law, resulting in material injury affecting the remainder of the proceedings below, and that the injury cannot be corrected on plenary appeal. See Rappoport v. Mercantile Bank, 17 So.3d 902, 905 (Fla. 2d DCA 2009); State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So.2d 633, 635 (Fla. 2d DCA 2008). The latter two elements are jurisdictional, and the first element addresses the merits of the petition. O’Hearn, 975 So.2d at 635.

“[Personal finances are among those private matters kept secret by most people.” Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA 1998) (citing Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985)). The right of privacy set forth in article 1, section 23, of the Florida Constitution “undoubtedly expresses a policy that compelled disclosure through discovery be limited to that which is necessary for a court to determine contested issues.” Id. at 1036. It follows “that the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.” Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002).

Rappaport, 17 So.3d at 906 (emphasis added); see also Diaz-Verson v. Walbridge Aldinger Co., 54 So.3d 1007, 1009 (Fla. 2d DCA 2010) (noting that the disclosure of personal financial information may cause irreparable harm when a person is compelled to disclose it and the information is not relevant to the proceedings at issue).

Mr. Ryan asserts that the personal financial information that the circuit court ordered him to produce is not relevant to the issues in the underlying proceeding. In addition, if the circuit court requires Mr. Ryan to disclose the requested information to Landsource Holding, a subsequent appeal cannot correct the intrusion into his privacy. Accordingly, Mr. Ryan has established the jurisdictional requirements for certiorari review. Thus we now turn to the merits of his petition.

Landsource Holding argues that Mr. Ryan’s personal financial information is relevant to his affirmative defense of anticipatory breach on its breach of contract claim against him. Under that defense, Mr. Ryan asserts that he was relieved of his contractual obligations to Landsource Holding because of its anticipatory breach of the agreement. Landsource Holding argues that to prevail on this affirmative defense, Mr. Ryan must establish his ability to perform by making the required payments under the agreement. Landsource Holding concludes, that for this reason, Mr. Ryan’s personal financial information is relevant to determining his ability to make the payments required under the agreement.

In response, Mr. Ryan argues that because he is asserting anticipatory breach as an affirmative defense and is not pursuing a claim for damages, he is not required to establish his ability to perform under the contract. Accordingly, his personal financial information is not relevant. And, the circuit court departed from the essential requirements of the law by requiring him to produce personal financial information in violation of his right of privacy. We agree with Mr. Ryan that he is not required to establish his ability to perform under the subject agreement to be relieved of his contractual obligations based upon Landsource Holding’s alleged anticipatory breach. Thus his personal financial information was not relevant to his affirmative defense.

III. DISCUSSION

“If one party to an agreement has breached the agreement, the other party’s failure to continue with the agreement is not considered a default of the contract.” Jones v. Warmack, 967 So.2d 400, 402 (Fla. 1st DCA 2007). The same holds true when one party to an agreement commits an anticipatory breach. If such a breach occurs, then the nondefault-ing party is relieved of its obligations under the contract. Id.; see also Fabel v. Masterson, 951 So.2d 934, 936 (Fla. 4th DCA 2007) (“It is axiomatic that the anticipatory breach of a contract by one party excuses contractual compliance by the other.”); Saunders Leasing Sys., Inc. v. Gulf Cent. Distrib. Ctr., Inc., 513 So.2d 1303, 1307 (Fla. 2d DCA 1987) (holding that the defendant in an action for breach of contract was discharged from its obligations under the contract because of the plaintiffs anticipatory breach).

To be sure, as Landsource Holding argues, a party’s anticipatory repudiation of a contract alone does not entitle the nonbreaching party to damages. To be entitled to damages based upon an anticipatory breach, the nonbreaching party must establish its ability to perform at the time of the breach. Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181, 182-83 (Fla.1982); see also Craigside, LLC v. GDC View, LLC, 74 So.3d 1087, 1090 (Fla. 1st DCA 2011) (quoting Restatement (Second) of Contracts § 253 (1979)). The rationale for this rule is that “[t]he holder of the duty based upon a condition precedent cannot profit from an anticipatory repudiation of a contract that he would have breached himself.” Hosp. Mortg. Grp., 411 So.2d at 183.

Landsource Holding’s argument overlooks the distinction between asserting anticipatory breach as a defense to a claim for breach of contract and asserting anticipatory breach as a basis for the recovery of damages. When anticipatory breach is asserted as a defense, the proponent is attempting to establish that his own performance under the contract was excused and thus he is not in default. But when anticipatory breach is asserted as the basis for affirmative relief, the proponent is seeking to recover damages from the party allegedly in breach of the contract. In the latter situation, the party seeking affirmative relief cannot establish that the repudiating party’s breach caused him damages unless he proves that he would have been able to perform the contract if the repudiating party had not breached it.

For example, in Saunders, this court reversed a judgment against Saunders Leasing System, Inc., in an action brought against it by Gulf Central Distribution Center, Inc., for the breach of a leasing agreement. 513 So.2d at 1307. We concluded, in part, that Saunders had established that its performance under the subject contract was excused based upon Gulf Central’s anticipatory breach. Id. Therefore, Gulf Central could not prevail on its breach of contract claim against Saunders because Gulf Central had breached the agreement first. But we affirmed the judgment against Saunders on its counterclaim for damages against Gulf Central based on Gulf Central’s anticipatory breach because the jury had rejected Saunders’ proof of its ability to perform the contract at the time of the breach. Id. Accordingly, while Saunders was required to establish its ability to perform the contract in order to prevail on its counterclaim for damages based upon the anticipatory breach, it was not required to do so to prevail on its affirmative defense that the anticipatory breach relieved it of its obligation to perform under the agreement.

In this case, Mr. Ryan has not asserted a claim for damages against Landsource Holding based on its alleged anticipatory breach. Instead, Mr. Ryan is claiming that Landsource Holding’s alleged breach excused his own performance and that Landsource Holding is not entitled to prevail on its claim against him. If Mr. Ryan establishes that Landsource Holding anti-cipatorily breached the agreement, then that anticipatory breach would excuse Mr. Ryan’s further performance under the contract. The question of Mr. Ryan’s ability to perform under the contract is not relevant to the merits of his defense of anticipatory breach to Landsource Holding’s damages claim. Because Mr. Ryan need not establish his ability to make payments under the contract to prevail on his defense of anticipatory breach, his personal financial information is not currently relevant to any issue in the litigation. Thus the trial court departed from the essential requirements of the law in compelling him to produce his personal financial information to Landsource Holding.

IV. CONCLUSION

Because Mr. Ryan’s personal financial information is not presently relevant to any issue in the underlying proceedings, the circuit court departed from the essential requirements of the law by ordering him to produce such information to Land-source Holding in response to its third request for production. Accordingly, we grant the petition for writ of certiorari and quash the order under review as it relates to Mr. Ryan.

Petition granted; order quashed.

KELLY and KHOUZAM, JJ., Concur.

      . In the underlying matter, Whitney National Bank sued Mr. Ryan; Forest Brooke/Hillsbor-ough, LLC; and Landsource Holding, among others, in a mortgage foreclosure action. Landsource Holding filed counterclaims against Mr. Ryan and Forest Brooke. The parties to the original foreclosure action entered into an agreed final judgment in favor of Dune FB Debt LLC, the successor in interest to Whitney National, and Landsource Holding’s claims against Mr. Ryan and Forest Brooke are the only claims remaining in the underlying matter.

      . In the order under review, the circuit court also directed another entity, Forest Brooke/Hillsborough, LLC, to produce its financial records for inspection by Landsource Holding. However, Forest Brooke/Hillsbor-ough, LLC, has not sought review of the order.