author: WELLS, Judge.

text:
    Gwendolyn FERNANDEZ, Sheldon Barnes, et al., Appellants/Cross-Appellees, v. Basil YATES, M.D., PA., Basil M. Yates, M.D., individually and as shareholder in Dabama, Inc., Kathleen Yates, Deborah Travis and Susanne Travis for the Travis Family., Appellees/Cross-Appellants.
    No. 3D13-2474.
    District Court of Appeal of Florida, Third District.
    June 18, 2014.
    Rehearing Denied Aug. 22, 2014.

      Young, Berman, Karpf & Gonzalez, and Andrew S. Berman, North Miami Beach, for appellants/cross-appellees.
    Sutton Law Group and John R. Sutton, Miami; Boyle, Gentile, Leonard & Crockett, Mark A. Boyle, Michael W. Leonard, Molly A. Chafe and Justin M. Thomas, FiMyers, for appellees/cross-appellants.
    Before WELLS, LOGUE and SCALES, JJ.
   WELLS, Judge.

Gwendolyn Fernandez and Sheldon and Lucille Barnes appeal from a final judgment dissolving Professional Institute of Hialeah (“PIH”) a partnership in which they together hold a 50% interest with Basil Yates, M.D. and Kathleen Yates and the Travis Family who together hold the remaining 50% interest. Yates and Travis cross-appeal from that judgment claiming error in the trial court’s refusal to also dissolve Dabama, Inc., a corporation owned by the same parties with the same interests. We find no error in the trial court’s decision to dissolve the partnership but for the following reasons reverse its decision not to also dissolve the underlying corporation.

At the root of this dispute is a six story Hialeah medical office building located diagonally across the street from Hialeah Hospital, built by four doctors — doctors Fernandez, Barnes, Yates, and Travis — in 1969 from which they conducted their medical practices. The building itself is owned by Dabama, Inc., a corporation in which doctors Fernandez and Yates each held a 1/3 interest and doctors Barnes and Travis each held a 1/6 interest, and leased for a term of 99 years to and managed by PIH, a partnership in which these same doctors held identical ownership interests. No shareholder or partnership agreements exist for either Dabama or PIH.

At present only Dr. Yates, an 85-year-old neurosurgeon, continues to practice medicine from the building and occupies the same space that his practice has occupied since the building was opened. Dr. Barnes, also in his 80s has retired from the practice of medicine and no longer occupies space in the building. Gwendolyn Fernandez (also in her 80s), Dr. Fernandez’ former wife similarly occupies no space in the building. Dr. Travis is deceased.

From 1969 until 1996, when Dr. Fernandez transferred his interests in Dabama and PIH to his ex-wife, Dr. Fernandez managed the building. Since that time, Dr. Fernandez and Gwendolyn Fernandez’ son, Richard, an attorney and real estate broker, has managed the building pursuant to a written Management Agency Agreement (“MAA”) with both Dabama and PIH. That agreement, which was signed by all of the shareholder/partners or their successors in interest, was for three year terms, the first commencing October 1, 1996 and ending on September 30, 1999, each automatically renewed unless can-celled by either Richard or Dabama/PIH:

ARTICLE II

A. Term of Agreement. The term of this agreement shall commence October 1, 1996, and shall continue for a period of three years until September 30, 1999, and is automatically renewed thereafter for successive periods of three years. This agreement may be cancelled after one year, upon six months written notice by either party....

The Yates/Travis group wants to terminate the management agreement arguing Richard’s mismanagement has allowed the building, now over 40 years old, to fall into such a state of disrepair as to' make it an undesirable location for any medical practice, including Dr. Yates’ own. Specifically, Dr. Yates, a neurosurgeon, the only original shareholder/partner still practicing medicine in the building, cites to the fact that the building elevator frequently malfunctions making it impossible for any patient who must rely on a walker and wheelchair, including his post-surgical brain and spine patients, to get around or access the building’s upper floors most particularly his sixth floor office suite. He also complains that inadequate seating is provided on the building’s first floor for patients awaiting post-visit transportation and that after the building’s doors are locked around six o’clock in the afternoon, no place at all is provided outside the building for patients to wait for transport. Dr. Yates further points to the fact that patients and other visitors to the building have no access to the building’s ADA compliant first floor bathroom which is kept locked to prevent unauthorized use by those waiting for buses at a nearby bus stop and not even he has access to a key for this bathroom so that his disabled, post-surgical patients may use it.

Dr. Yates also notes that the building’s occupants have no ability to control the climate in their suites resulting in frigid conditions for staff and patients alike because air temperature is determined by Richard, who controls the air conditioning from a remote computer system; and although the building has its own parking lot, it is kept chained to prevent unauthorized parking, making access even more inconvenient for the building’s patrons. These circumstances notwithstanding, and the fact that the building is now only 40% occupied, the Fernandez/Barnés group has refused to meet with the Yates/Travis group since 2007 to discuss any issues having to do with management of the only asset owned by Dabama and managed by PIH. No corporate or partnership annual meetings have taken place during this period of time.

In May of 2012, the instant action was filed by the Yates/Travis group, seeking, as pertinent here, to dissolve Dabama; to appoint a receiver; to partition the real property owned by it; and to declare the parties’ rights regarding the 99 year lease between PIH and Dabama, the management agreement with Richard, and dissolution of PIH. Although the Fernandez/Barnes group hopelessly stymied any action by the partnership or the corporation by virtue of their refusal to so much as meet with the Yates/Travis group much less agree to anything, they nonetheless, with less than the majority vote needed to take any action on behalf of either entity, as the trial court observed, either allowed Richard to use partnership/corporate funds to the tune of over $70,000 to fund his defense to the Yates/Travis group’s lawsuit, or acquiesced in that use.

Ultimately, following discovery and substantial motion practice, the trial court considered motions for summary judgment filed by both sides. In its order granting dissolution of the partnership but denying dissolution of Dabama, the court acknowledged the miserable (and in reality the intolerable) state of the parties’ relationship:

The crux of the issue is that the parties are entrenched with a 50-50 split to a point that they there have been no meetings to discuss the business partnership for more than four years.
Section 620.8801(5)(b) authorizes the Court to dissolve a partnership if “An-

other partner has engaged in conduct relating to the partnership business which makes it not reasonably practicable to carry on the business in partnership with such partner.” Here, the Defendants argue that they have taken as benign a role as one can imagine. However, the Court finds that the defendants’ have entered into a joint defense agreement with Richard Fernandez and either allowed Richard Fernandez to take over $70,000 out of the partnership to pay his attorney fees, or without approval or consultation with the plaintiffs’ [sic] acquiesced in the withdrawal of partnership assets for the payment of attorney fees.

Further it appears the property manager has not remained a neutral entity in this matter as between the Plaintiffs’ [sic] [Yates/Travis] and the Defendants’ [sic] [Fernandez/Barnes.] It appears that Mr. Fernandez has not prepared and provided financials to the parties as required under the Management Agency Agreement Article IV. The refusal of the Defendants’ [sic] to meet with the Plaintiffs’ [sic] and conduct discussions of the business of the partnership for these many years have rendered PIH rudderless except for the decisions made by Mr. Fernandez.

Under the circumstances found in this case the Court finds that the partners have engaged in conduct which has made it not practicable to undertake business under the partnership. Therefore the Court dissolves the PIH partnership agreement.

On this record, we find no error in the trial court’s decision to dissolve PIH. The Yates/Travis group sufficiently alleged and established entitlement to such relief under section 620.8801 of the Florida Statutes. However, we conclude the trial court erred in failing to dissolve Dabama. Section 607.1480, of the Florida Statutes (2012), addressing the grounds for judicial dissolution of a corporation provides in relevant part:

A circuit court may dissolve a corporation or order such other remedy as provided in s. 607.1434:
(2) In a proceeding by a shareholder if it is established that:
(a) The directors are deadlocked in the management of the corporate affairs, the shareholders are unable to break the deadlock, and irreparable injury to the corporation is threatened or being suffered.

§ 607.1430, Fla. Stat. (2012).

In Freedman v. Fox, 67 So.2d 692, 693 (Fla.1953) (citing News-Journal Corporation v. Gore, 147 Fla. 217, 2 So.2d 741 (1941)), the Court observed “the drastic action of dissolving a corporation will not be justified unless its affairs have reached the sorry state where the purposes for which it was organized are no longer possible of attainment.” While the parties debate the applicability of Freedman, we believe the high standard set for dissolution of a corporation as observed in that case is, in fact, met in this case. The facts sub judice reveal just such a failure to function and frustration of purpose.

In this case, four physicians purchased a parcel of property and constructed a building primarily for the purpose of securing space from which they and others could conduct medical practices. To insulate themselves from liability and for ease of operating and managing the property, they also formed a partnership to which the corporation leased the property. These purposes were fulfilled for many years until one of the four physicians died, one retired from the practice of medicine, and one gave away his interest in a divorce, leaving only one with any need to occupy the building.

While arguably the purpose for owning the building and leasing it as a medical arts building might still be fulfilled, the age and physical condition of the building and its 60% vacancy rate make that purpose increasingly less possible. This is especially so when the shareholder/partners are hopelessly deadlocked on every issue. With half of the shareholder/partners refusing to even meet with the remaining shareholder/partners to consider how to address the needs of the property so that its purpose may continue to be realized and with the entrenched manager/son of one of the recalcitrant shareholder/partners taking direction from less than a majority of the shareholder/partners, it is impossible to see how “irreparable injury” to Dabama has not been suffered, much less been threatened. Thus, while Dabama was solvent at the time this action was brought, the fact that its purpose was wholly frustrated is beyond doubt. As confirmed by the testimony of the Fernandez/Barnes group’s expert Jeremy Larkin, the building owned by Dabama is in decline and without agreement of the parties, the capital infusion needed to improve its occupancy rate could not occur, guaranteeing its continued decline. This record, we believe was sufficient to support dissolution of Dabama. See Behrens Co., Inc. v. Rawls, 518 So.2d 945, 945-46 (Fla. 3d DCA 1987) (“The trial court did not- err in granting the appellee’s motion for dissolution pursuant to section 607.274(l)(a)(2), Florida Statutes (1985) [precursor to section 607.1430], because the evidence clearly indicates that the shareholders are hopelessly deadlocked at present and have been so for a number of years.”); see generally 16A William Meade FletcheR et al„ Fletcher Cyclopedia of the Law of Corporations § 8066.10 (updated 2014) (“Most jurisdictions now permit judicial dissolution when either the shareholders are deadlocked in voting power or the directors are deadlocked in the management of the corporate affairs.”). In sum, the trial court’s own findings recognize that Dabama’s shareholders are unable to break a corporate deadlock. The defendants’ own expert confirmed that absent such a break, operation of the property owned by Dabama would continue to decline. This irreparably frustrates the very purpose of this corporation and injures it thereby satisfying the statutory requirements necessary to support dissolution of this entity.

Accordingly, we affirm that part of the trial court’s order granting the dissolution of PIH but reverse that part of the trial court’s order denying the dissolution of Dabama, Inc.

      . Gwendolyn Fernandez, the ex-wife of Dr. Manuel Fernandez, owns a 1/3 interest in both PIH and Dabama, Inc. Dr. Sheldon Barnes and his wife Lucille own a 1/6 interest in both entities. Dr. Basil Yates and his wife Kathleen own a 1/3 interest in both entities. The Travis Family Partnership, Deborah Travis, Susanne Travis, Rochelle Travis, and Bradley Travis, who succeeded to the interest of Dr. Burton Travis, own the remaining 1/6 interest in both entities. For the sake of clarity we will refer to these individuals and entities as either the Fernandez/Barnes group, who are aligned in their interests and positions, or as the Yates/Travis group, who similarly are aligned in their interests and positions.

      . By agreement, PIH pays only nominal rent to Dabama to avoid double taxation.

      . A number of additional claims were alleged solely against Richard which were severed and are not at issue here.

      . The management agreement between Daba-ma/PHI and Richard Fernandez contains an indemnification provision which provides that the owner, which is the corporation and partnership agree to reimburse the manager "upon demand " for any moneys which manager is required to pay in defense of any claim. Fernandez and Barnes are not the owners of either Dabama or PHI, they are only 50% shareholder/partners without authority to act alone on behalf of either entity. They could not, therefore, have agreed to any manager demand.

      . This provision sets out the "[e]vents causing dissolution and winding up of partnership business,” and provides in pertinent part:
      A partnership is dissolved, and its business must be wound up, only upon the occurrence of any of the following events: (5) On application by a partner, a judicial determination that:
      (a) The economic purpose of the partnership is likely to be unreasonably frustrated;
      (b) Another partner has engaged in conduct relating to the partnership business which makes it not reasonably practicable to carry on the business in partnership with such partner[.]
      § 620.8801, Fla. Stat. (2012).


source: Caselaw Access Project

author: CIKLIN, J.

license: Public Domain

text:
    T.B., a Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-3729, 4D12-3730.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.
    Carey Haughwout, Public Defender, and Ellen Griffin, 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.
   CIKLIN, J.

By petition for delinquency, the state alleged that T.B. committed the offense of loitering and prowling, and, by doing so, violated probation by committing the new offense. After an adjudicatory hearing on the loitering and prowling charge, the court found T.B. committed the offense and placed him on a new period of probation. T.B. then admitted the violation of probation, preserving the issue of sufficiency of the evidence of loitering and prowling, and his probation was reinstated. He appeals the finding of guilt in the loitering and prowling case, arguing the evidence was insufficient and that the court erred in denying his motion for judgment of dismissal. He also contends we should reverse the court’s finding that he violated his probation, as the finding was based on the loitering and prowling. We agree the trial court should have granted the motion for judgment of dismissal as to the loitering and prowling. We also find that the evidence of loitering and prowling was insufficient to support a finding of guilt in the violation of probation case. Accordingly, we reverse the finding of guilt in both cases and remand for the court to vacate the disposition orders.

The evidence presented during the adjudicatory hearing revealed the following. Late one summer night, a police officer received a report of a possible burglary of a vehicle at an apartment complex. After entering the complex through the manned guard gate, he patrolled the area and observed T.B. and another male walking between two buildings. The boys exhibited a “[sjort of prowling demeanor, kind of creeping slowly through between the buildings, kind of looking around.” The officer directed the boys to “stop for police,” and T.B. made eye contact with the officer and stopped. However, the boys then started to walk backward toward an area that was not illuminated. The officer renewed his order that the boys stop and they did. In response to the officer’s questions, T.B. identified himself and claimed he was returning from a party and scaled a wall to gain entry to the complex in order to take a shortcut home. The officer frisked T.B. and discovered a scarf and pliers in his pants pocket.

At the close of the state’s case, defense counsel moved for a judgment of dismissal, arguing that T.B.’s behavior was not sufficient to establish both elements of loitering and prowling. The court denied the motion, finding it was “sufficient that there’s suspicion there that the officer can be concerned about — of a crime to be committed.”

We review the denial of a motion for judgment of dismissal de novo. AW. v. State, 82 So.3d 1136, 1138 (Fla. 4th DCA 2012) (citation omitted). Florida Rule of Juvenile Procedure 8.110(k) governs motions for judgment of dismissal. “A motion for judgment of dismissal tests the legal sufficiency of the state’s evidence.” A.L.J. v. State, 12 So.3d 873, 874 (Fla. 4th DCA 2009) (citation omitted). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” R.E. v. State, 13 So.3d 97, 98 (Fla. 4th DCA 2009) (citation and quotation marks omitted).

This court has elaborated on the elements of loitering and prowling:

The crime of loitering and prowling requires proof of two elements, both of which must be committed in the officer’s presence prior to arrest. First, the State must show the arresting officer observed the defendant loitering and prowling in a manner not usual for law-abiding citizens....
The second element requires the arresting officer to articulate specific facts which, when taken together with rational inferences from those facts, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened. Circumstances to be considered in determining whether a breach of the peace is imminent or public safety is threatened are whether the person takes flight, refuses to identify himself, or attempts to conceal himself or an object.

G.G. v. State, 908 So.2d 1031, 1033 (Fla. 4th DCA 2005) (citations and internal quotation marks omitted). “Because of its potential for abuse, the loitering statute must be applied with special care.” P.R. v. State, 97 So.3d 980, 982 (Fla. 4th DCA 2012) (citation omitted). With respect to the two elements of the offense, this court has explained,

[T]he state must prove that “the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved.” Such behavior comes close to, but falls short of, the actual commission or attempted commission of a substantive crime. A “vaguely suspicious presence” is insufficient. Rather, the defendant’s behavior must point “toward an imminent breach of the peace or threat to public safety.” Stated another way, there must be a “threat of immediate, future criminal activity.”
To satisfy the second element, the state must demonstrate that the loitering occurred under “circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.”

Id. at 983 (emphasis in original) (citations omitted). Further,

Among the circumstances which may be considered in determining whether such alai’m or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself ... or manifestly endeavors to conceal himself ... or any object.
If after being confronted by an officer, the defendant produces credible and reliable identification and complies with the orders of the law enforcement officer necessary to remove the threat to the public safety ... the charge under this statute can no longer properly be made. However, [t]he failure to provide identification or a reasonable explanation for the questioned activity are not elements of the crime....
[Bjecause flight from police comes after the officers’ presence is made known, flight alone is insufficient to satisfy the elements of loitering and prowling.

Id. (emphasis in original) (citations and internal quotation marks omitted). The court may not consider suspicious tools found on a suspect after the person is detained, as “[p]ossession of suspicious tools may support a suspicion of imminent criminal activity after the fact, but the offense of loitering and prowling must be completed prior to any police action.” E.F. v. State, 110 So.3d 101, 105 (Fla. 4th DCA 2013) (emphasis omitted) (citations and internal quotation marks omitted).

Here, the officer observed T.B. and another person walking “slowly” between two buildings in an apartment complex late at night. T.B. was “looking around.” At that point, the officer did not know T.B. was not a resident of the complex and he did not see any tools or weapons on T.B.’s person.

Our courts have found that behavior even more suspicious than T.B.’s did not constitute sufficient evidence of loitering and prowling. See, e.g., E.F., 110 So.3d at 104 (finding that even in the light most favorable to the state, juvenile’s morning activity of “walking slowly while looking into carports and sides of houses in an area where burglaries had occurred, and ... carrying a large satchel bag along with a yellow flashlight hanging out of his pants pocket” was “not unusual or indicative of incipient criminal activity,” and “was not the type [of conduct] that would warrant a finding that a breach of the peace was imminent or the public safety was threatened”); A.L. v. State, 84 So.3d 1272, 1273-74 (Fla. 3d DCA 2012) (finding insufficient evidence of loitering and prowling where juvenile and his friend were observed in the early evening hours in the alleyway between two apartment buildings looking into windows but were not observed carrying tools or attempting to pry open windows, and where the juvenile briefly concealed himself in a staircase); K.H. v. State, 8 So.3d 1155, 1156 (Fla. 3d DCA 2009) (finding officer had no probable cause of loitering and prowling where juveniles were observed peering into a vehicle at 11:00 p.m. but they did not try the door handles and had nothing in their hands); G.G., 903 So.2d at 1032-34 (holding evidence that two male juveniles emerged from behind a shopping plaza at 3:45 a.m., ran upon seeing the police car, and that one of them was carrying an object later determined to be a piece of brick was not sufficient evidence of loitering and prowling where the charged juvenile initially gave a false name but then provided his correct name, date of birth, and address).

Even if the evidence could be said to be sufficient to establish the first element of the offense, it was not sufficient to establish the second element.

T.B.’s behavior, that is, walking between two buildings late at night in an apartment complex, did not suggest an imminent breach of the peace or threat to public safety, especially where T.B. identified himself and explained his presence in the complex. See G.G., 903 So.2d at 1033-34 (finding that defendant’s “brief flight” and “his initial failure to give the deputy his correct name” justifiably alarmed officer, but that where the defendant “shortly thereafter revealed his correct name, address, and date of birth,” the officer was “unable to articulate any fact that demonstrated the defendant[’]s conduct posed a threat to public safety or an imminent breach of the peace”).

This case is factually similar to K.R.R. v. State, 629 So.2d 1068 (Fla. 2d DCA 1994), where the court found the evidence was insufficient to establish a loitering and prowling. There, an officer received a report of an auto theft at a funeral home after midnight. Shortly after receiving the report, he encountered the juvenile and another person walking along railroad tracks away from the direction of the funeral home. The officer testified that the city curfew for teens began at 10:30 p.m.; however, the defendant was not cited for violating the curfew. The Second District wrote:

Unquestionably, under the circumstances, [the officer’s] stop of defendant was proper, in light of the reported crime at the nearby funeral parlor. However, since the offense of loitering and prowling is a misdemeanor, all elements of the offense must occur in the officer’s presence. The fact remains that [the officer] never actually saw defendant do anything in his presence other than walk along railroad tracks at 12:30 a.m. This may be a violation of the Lake Wales curfew, for which in any event he was not cited, but it otherwise in itself appears to be legally insufficient evidence of loitering and prowling.

Id. at 1070 (citations omitted).

Likewise here, the officer’s observations amounted to nothing more than T.B. and another person walking slowly between two apartment buildings late at night. This behavior, standing alone, is insufficient to establish loitering and prowling. Accordingly, we hold the trial court erred in denying the motion for judgment of dismissal, we reverse the finding of guilt, and we remand for the court to vacate the disposition order.

T.B. also argues the finding of guilt in the violation of probation case should be reversed, because it was premised on the loitering and prowling charge. We agree. We recognize that the burden of proof in the violation of probation case is greater weight of the evidence rather than proof beyond a reasonable doubt. See Hernandez v. State, 723 So.2d 886, 887 (Fla. 4th DCA 1998). However, under either burden of proof, the evidence was insufficient for the fact finder to determine the state had met its burden with respect to the loitering and prowling charge. Accordingly, we reverse the finding of guilt in the violation of probation case and remand for the trial court to vacate the disposition order.

Reversed and remanded with instructions.

TAYLOR and GERBER, JJ., concur.

      . T.B. was serving probation for a simple battery at the time he was alleged to have committed the loitering and prowling.

      . While T.B. and his friend may have been guilty of trespassing or a curfew violation (even though not cited for either), at the time the officer made his observations, he did not know whether T.B. lived in the complex.


author: PALMER, J.

text:
    Pilot CATASTROPHE SERVICES, INC., Appellant, v. Suzanne FOUCHE, Appellee.
    No. 5D13-1306.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2014.
    Rehearing Denied Aug. 20, 2014.

      Marc A. Sugerman, of Allen, Norton & Blue, P.A., Winter Park, for Appellant.
    Daniel N. Brodersen, of Brodersen Law Firm, Orlando, for Appellee.
   PALMER, J.

Pilot Catastrophe Services, Inc., appeals the non-final order entered by the trial court denying its motion to compel arbitration. Determining that the arbitration agreement involved in this case is enforceable in part, we reverse.

Suzanne Fouche, a Florida resident, filed a lawsuit against Pilot, claiming disability and gender discrimination in her employment, in violation of the Americans with Disabilities Act (Title VII), the Florida Civil Rights Act (FCRA), and the Civil Rights Act of 1964.

Pilot filed a motion to compel arbitration and to dismiss or stay Fouche’s lawsuit based upon the parties’ employment contract. That contract included a choice of law provision mandating that the contract would be governed by Alabama law (where Pilot is incorporated). The employment contract also contained an arbitration provision, providing that all disputes between the parties would be resolved through binding arbitration. The arbitration provision also included, in relevant part, the following language:

Pilot will bear the expense of its panel designee, the Employee will bear the expense of the Employee’s panel desig-nee, and Pilot and the Employee will bear the equally bear the expense of the umpire and the arbitration
The Employee and Pilot shall each bear their own attorney’s fees, costs, and expenses. The Employee and Pilot expressly agree that punitive and/or exemplary damages shall not be awarded; however, if an agreement precluding such damages or award is unenforceable, then, in such event, Employee and Pilot agree that such award shall be limited to a maximum of 10% of any proven recoverable actual compensatory damages.
Employee and Pilot further agree that that punitive and/or exemplary damages, if allowed and recoverable, shall only be awarded only upon a showing of proof beyond a reasonable doubt of conduct permitting recovery of such damages.

After conducting a hearing, the trial court denied Pilot’s motion to compel arbitration, concluding that the arbitration provision was unenforceable.

Pilot contends that the trial court erred in denying its motion to compel arbitration, arguing that the arbitration provision is valid and enforceable under the Federal Arbitration Act and Alabama law. We agree, in part.

Orders denying motions to compel arbitration are reviewed de novo, except that factual findings are reviewed for support by competent, substantial evidence. Furthermore, a trial court’s decision regarding whether an arbitration agreement or provision is void as against public policy presents “a pure question of law, subject to de novo review.” Fi-Ever-green Woods v. Estate of Vrastil, 118 So.3d 859, 862 (Fla. 5th DCA 2013) (quoting Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 471 (Fla.2011)).

As a threshold procedural matter, the Federal Arbitration Act (FAA) applies to agreements evidencing a transaction involving interstate commerce. See Acton CATV, Inc. v. Wildwood Partners, Ltd., 508 So.2d 1274 (Fla. 5th DCA 1987); Williams v. Hardy, 468 So.2d 429 (Fla. 5th DCA 1985); Donmoor, Inc. v. Sturtevant, 449 So.2d 869, 870 (Fla. 5th DCA 1984). A contract between a Florida resident and a foreign corporation is an agreement evidencing a transaction involving interstate commerce. See Gilman & Ciocia, Inc. v. Wetherald, 885 So.2d 900, 904-905 (Fla. 4th DCA 2004). The United States Supreme Court has explained that the purpose of the FAA is to “reverse the longstanding judicial hostility to arbitration agreements ... and to place arbitration agreements upon the same footing as other contracts.” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513,148 L.Ed.2d 373 (2000) (citations omitted). Consistent with that objective, the FAA creates a strong federal policy in favor of arbitration. See Picard v. Credit Solutions, Inc., 564 F.3d 1249, 1253 (11th Cir.2009).

Section two of the FAA provides:
A written provision ... [in a]contraet evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2 (2012). Under Alabama law, “[a]rbitration provisions are to be treated like any other contractual provision,” and a trial court is “required to stay or dismiss proceedings and to compel arbitration if the parties have entered into a valid contract containing an arbitration agreement.” Service Corp. Int’l v. Fulmer, 883 So.2d 621, 633 n. 15 (Ala.2003); Ameriquest Mortg. Co., Inc. v. Bentley, 851 So.2d 458, 462 (Ala.2002).

The trial court held that the arbitration provision contained in the parties’ employment contract was unenforceable for two reasons: (1) Fouche received inadequate consideration, and (2) the arbitration provision amends federal law.

As to the first issue, the trial court ruled the following:

[T]his Court finds that because [Fouche’s] employment was at-will, if this arbitration agreement provision is enforced, [Fouche] would have forfeited her rights to access the courts without having received any meaningful compensation. In other words, the effect of this arbitration clause is to amend Title VII, the Florida Civil Rights Act, and the Americans with Disabilities Act, to limit the Plaintiffs access to courts, for which she received no consideration other than at-will employment (which is effectively nothing).

The trial court erred in determining that at-will employment is not adequate consideration to enforce Fouche’s agreement to arbitrate because the Alabama Supreme Court has consistently held that “at-will employment is sufficient consideration to make an employee’s promise to arbitrate binding.” Bentley, 851 So.2d at 464 (citing Gadsden Budweiser Distrib. Co. v. Holland, 807 So.2d 528, 531 (Ala.2001)); Ex parte McNaughton, 728 So.2d 592, 595 (Ala.1998)).

As to the second issue, the trial court’s ruling presents two separate issues under Alabama law: (1) whether the punitive damages clause is unenforceable and, if so, whether it can be severed from the parties’ employment contract, and (2) whether the arbitration provision is rendered unenforceable because it forces Fouche to split the costs of arbitration and to bear her own attorney’s fees and costs.

First, under Alabama law, a contractual provision that prohibits punitive damages violates public policy and is, therefore, unenforceable because it prevents a party from recovering a complete remedy provided for by law. See Ex parte Thicklin, 824 So.2d 723, 732-33 (Ala.2002)(citing Cavalier Mfg., Inc. v. Jackson, 823 So.2d 1237 (Ala.2001)). However, Alabama law favors the severability of offending punitive damages clauses. In Ex parte Thicklin, the Alabama Supreme Court concluded that a provision in an arbitration agreement prohibiting punitive damages was invalid, but severed it out, sending the case to arbitration. Id. at 735. In Ex parte Celtic Life Insurance Co., 834 So.2d 766 (Ala.2002), the court explained that trial courts have a duty “to preserve so much of a contract as may properly survive its invalid and ineffective provisions.” Id. at 769. Ex parte Celtic involved an arbitration provision that prohibited the recovery of punitive damages. The Court severed the invalid provision and then sent the case to arbitration. Id.

In the instant case, the arbitration provision prohibits the recovery of punitive damages, and further provides that, “if an agreement precluding such damages or award is unenforceable, then ... Employee and Pilot agree that such award shall be limited to a maximum of 10% of any proven recoverable actual compensatory damages.” Title VII and the Civil Rights Act do not place a cap on the recovery of punitive damages, nor do they place the burden of proving punitive damages beyond a reasonable doubt on the claimant. The principles that make a contract clause prohibiting the recovery of punitive damages unenforceable are equally applicable to contract clauses that limit punitive damages. Accordingly, these contract provisions are unenforceable. In light of Alabama law favoring severability, as well as the FAA’s requirement that arbitration agreements be treated no less favorably than other contracts under state law, the trial court should have severed the punitive damages clause from the arbitration agreement.

Second, the United States Supreme Court has held that, “where ... a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). In that case, Randolph provided the Court with evidence of costs from “informational material from the American Arbitration Association” and from “cases involving other arbitrations as reflected in the opinions of other Courts of Appeals.” Id. The Court held that “[n]one of this information affords a sufficient basis for concluding that Randolph would in fact have incurred substantial costs in the event her claim went to arbitration.” Id. In a footnote, the Court found that Randolph supported her assertion that arbitration costs were prohibitively expensive with “unfounded assumptions.” Id. at 97, n. 6, 121 S.Ct. 513.

In the instant case, Fouche submitted an affidavit to the trial court, indicating “that she is single and the sole supporter of herself’ and that “she could no longer afford the substantial expense of arbitration mandated under the Agreement.” She cited to a law review article and a New York Times article, both of which discuss the potentially high costs of arbitration when compared to the costs of litigation in court, asserting that arbitration costs would be higher than court filing fees. This evidence is less than what the claimant in Randolph provided, which the U.S. Supreme Court determined was “too speculative.” As such, Fouche has not met her burden of demonstrating that her arbitration costs would be prohibitively high; therefore, the trial court erred in denying Pilot’s motion to compel arbitration.

Accordingly, we reverse the trial court’s order denying Pilot’s motion to compel arbitration and remand with instructions to sever the punitive damages clause and submit the case to arbitration.

REVERSED and REMANDED.

COHEN and WALLIS, JJ., concur.

      . This court has jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv).

      . See 42 U.S.C. § 12101 (2012).

      . See § 760.10, Fla. Stat. (2012).

      . See 42 U.S.C. § 2000e-2 (2012).

      . See 9 U.S.C. §§ 1-12(2012).

      . Importantly, Fouche is not left without a remedy. She can seek judicial review of the cost-splitting provision when her arbitration expenses become a certainty. The dissent in Randolph, arguing against the majority on the basis of judicial economy, comes to the same conclusion. “The Court's opinion, if I comprehend it correctly, does not prevent Randolph from returning to court ... if she then has a complaint about cost allocation.” Randolph, 531 U.S. at 97, 121 S.Ct. 513.

      . Fouche’s contention that the arbitration agreement is unenforceable because it precludes the recovery of attorney fees in the arbitration is mooted by Pilot’s concession that attorney fees can be awarded in the arbitration.


text:
    Oksana SEPICH, Appellant, v. Aris PAPADOPOULOS, Appellee.
    No. 3D 14-26.
    District Court of Appeal of Florida, Third District.
    June 25, 2014.
    Oksana Sepich, (Atlanta, GA), in proper person.
    Boies, Schiller & Flexner, and Charles Fox Miller, for appellee.
    Before WELLS, LAGOA and FERNANDEZ JJ.
   WELLS, Judge.

The former wife, Oksana Sepich, appeals from a December 11, 2013 order finding her in contempt for failing to vacate her former husband Aris Papadopou-los’s Atlanta, Georgia home, and ordering her to pay a fine of $500 a day until she vacates that home. In Case 3D13-2008, Sepich appealed two earlier orders determining that the Atlanta home was the former husband’s property. In that appeal, Sepich filed an emergency motion in this court to review denial of a stay which she had sought below. On January 7, 2014, we granted her motion and stayed all proceedings pending further order of this court. We conclude that the fine imposed days earlier, in the December 11, 2013 contempt order, was likewise stayed as a result of our January 7, 2014 stay order.

This court has now affirmed the orders under review in Case 3D13-2008, and in this opinion we affirm the December 11, 2013 contempt order, except as to any fine imposed up to time of the resolution of this appeal. The case now disposed of, with the issuance of the mandate in this ease, the stay entered will no longer be in effect.

It is time for Sepich to vacate the Atlanta home.

Affirmed, except as to the $500 a day fine.

      . Sepich was determined to be indigent and appears here pro se. In her August 14, 2013 application for indigent status, Sepich lists her monthly income as $1200, with the notation “commission base[d].” In her updated March 20, 2014 application for indigent status, Sepich lists her income at $500 per month, with the same notation.

      . Sepich appeals both the "Order On Former Husband’s Motion To Compel, For Contempt, For Sanctions, And For Other Relief,” which the trial court granted and the "Order On Former Wife's Compulsory Motion To Compel, For Contempt, For Sanctions, And For Other Relief,” which the trial court denied. We address what we deem the only provision meriting our intervention, the $500 a day fine imposed below.

      . Both the "Order Regarding the Atlanta, Georgia Residence" and the "Final Judgment of Dissolution of Marriage” issued on June 28, 2013, and determined the Atlanta home was the separate and sole property of the former husband.

      . In Case 3D 13-2008, Sepich argued that:
      [T]he Prenuptial Agreement executed by the parties allows both parties to continue to reside in the Georgia residence for the duration of divorce proceedings, through and including the date of the entry of a "Final Order.” “Final Order” refers to that date upon which a divorce proceeding is finally adjudicated with all right to appeal having expired without such appeal having been instituted, or in the event an appeal has been instituted, the date upon which all available appellate remedies have been finally exhausted.

      . We also issued a stay of the December 11, 2013 contempt order in this case, 3D 14-26.

      . In Perez v. Perez, 769 So.2d 389, 391 n. 4 (Fla. 3d DCA 1999), we observed:
      This Court has authority to issue a stay under Rule 9.310(f), Florida Rules of Appellate Procedure, for the purpose of preserving the status quo during an appellate proceeding. See Hirsch v. Hirsch, 309 So.2d 47 (Fla. 3d DCA 1975). Once a stay is issued, the stay remains in effect until the appellate court mandate is issued. Rule 9.310(e), Fla. R. App. P. Factors which are considered by this Court in deciding whether to grant a stay include the moving party’s likelihood of success on the merits, and the likelihood of harm should a stay not be granted. See State ex rel. Price v. McCord, 380 So.2d 1037 (Fla. 1980).


author: LOGUE, J.

text:
    MICCOSUKEE TRIBE OF INDIANS OF SOUTH FLORIDA, etc., Appellant, v. Carlos BERMUDEZ, et al., Appellees.
    No. 3D13-2153.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Rehearing Denied Aug. 26, 2014.

      Bernardo Roman III; Yesenia Lara and Yinet Pino; Daniel Davis, Miami, for appellant.
    Carlton Fields Jorden Burt, P.A., and Nancy C. Ciampa, Jack Reiter, and Paul A. Calli, Miami; John G. Crabtree, and George R. Baise, Jr., Key Biscayne, and Ramon M. Rodriguez, Miami, for appel-lees.
    Before SALTER, LOGUE and SCALES, JJ.
   LOGUE, J.

The Miccosukee Tribe of Indians of South Florida appeals from a final judgment of $4.1 million. We reverse.

FACTS AND PROCEDURAL HISTORY

This matter began when Carlos Bermu-dez sued two members of the Tribe, Tammy Gwen Billie and Jimmie Bert, for damages resulting from a tragic automobile accident in which a car driven by Billie and owned by Bert crashed into Bermudez’s car, killing Bermudez’s wife and injuring Bermudez and his son. Following a jury verdict, a final judgment was entered against Billie and Bert for $3.177 million on August 5, 2009. The Tribe was not a party when the final judgment was entered. Bermudez has yet to collect the judgment as Billie and Bert assert they have no assets.

Several years after the first final judgment was entered, Bermudez filed a motion to add the Tribe as a judgment debtor in the matter because the Tribe had funded and guided Billie and Bert’s defense in the lawsuit. The Tribe objected on several grounds, including sovereign immunity. Following an evidentiary hearing, the trial court entered an order granting Bermu-dez’s motion. On July 9, 2013, the trial court accordingly entered a second final judgment in favor of Bermudez and solely against the Tribe for the full amount of the original final judgment, plus interest, for a total judgment of just over $4.1 million. That final judgment did not reference the earlier final judgment against Billie and Bert which remains in effect. This appeal followed.

ANALYSIS

Bermudez asserts that the Tribe, although not a party to the tort lawsuit when the case was tried and the first judgment entered, may be added as a party and held liable to pay the damages awarded against Billie and Bert because the Tribe funded and guided Billie and Bert’s defense. Bermudez relies upon three lines of authority in making this argument.

The first line of authority relied upon by Bermudez involves issue preclusion. Ber-mudez notes that several cases from outside Florida have held that a person who funded and guided litigation, although not a party, may be estopped from attempting to re-litigate the issues decided in the litigation. See Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 317 N.Y.S.2d 315, 265 N.E.2d 739 (1970) (holding an executor of will in New York was bound by a decision of a French court as res judicata where the executor had hired counsel and controlled in part the defense in the French court); Theller v. Hershey, 89 F. 575, 576-77 (C.C.N.D.Cal.1898) (holding a nonparty to a patent infringement suit who funded an unsuccessful challenge to a patent could not file a subsequent lawsuit again challenging the patent). For a discussion of when issue preclusion applies to nonparties under federal law, see Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). Without deciding whether these cases reflect the law of Florida, these cases merely preclude nonparties from re-litigating specific issues that were decided adversely to their interests; they fall far short of holding that a nonparty can be made affirmatively liable for a final judgment of the tort damages entered against another.

The second line of authority consists of a single case that held trustees to a trust were individually liable for the attorney’s fees and costs of the beneficiary of the trust who was forced to sue for a distribution of the trust’s assets. In Jacobson v. Sklaire, 92 So.3d 228 (Fla. 3d DCA 2012), the trustees were party to the suit in their fiduciary capacity and had wrongfully removed assets from the trust to pay their own attorney’s fees. The trustees were ordered to return the funds. Moreover, when the amount wrongfully removed proved insufficient to pay all of the beneficiary’s costs and fees, the trustees were held to be individually liable for the remainder. That case is readily distinguishable from the instant case in that the trustees had appeared in the lawsuit, albeit in their fiduciary capacity, and the decision held them liable only for attorney’s fees that resulted, at least in part, from their wrongful conduct of removing assets from the trust that was the subject of the lawsuit. It does not hold a nonparty liable for an underlying judgment.

The main line of authority relied upon by Bermudez consists of a series of cases from this court holding that a nonparty to litigation who funds and controls vexatious litigation can be deemed a party for purposes of paying costs and attorney’s fees. See Abu-Ghazaleh v. Chaul, 36 So.3d 691 (Fla. 3d DCA 2009) (attorney’s fees under civil theft statute); Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482 (Fla. 3d DCA 2000) (attorney’s fees under section 57.105, Florida Statutes); Lage v. Blanco, 521 So.2d 299, 300 (Fla. 3d DCA 1988) (holding attorneys deemed parties for purposes of paying attorney’s fees resulting from frivolous lawsuit they filed without client’s authority). These cases deal only with attorney’s fees for vexatious litigation; they do not address, much less support, the contention that a third party to litigation can be liable for a tort judgment against someone else.

Bermudez, however, places great emphasis on some broad language that appeared in these cases, namely:

The word party includes one concerned with, conducting, or taking part in any matter or proceeding, whether he is named or not. Parties include, not only those whose names appear upon the record, but all others who participate in the litigation by employing counsel, or by contributing towards the expenses thereof, or who, in any manner, have such control thereof as to be entitled to direct the course of the proceedings.

Abu-Ghazaleh, 36 So.3d at 694 (internal citations, quotations, and alterations omitted); see also Visoly, 768 So.2d at 489 (same); Lage, 521 So.2d at 300 (same). In the context of the holdings of the cases, this language means no more than a person can be deemed a party for the purposes of paying attorney’s fees that result from vexatious or wrongful litigation he or she funded and controlled, even if he or she is not a named party.

As a matter of public policy, we have concerns about the unintended consequences of Bermudez’s theory. His theory would extend liability in a manner that would punish people for helping others defend themselves against a lawsuit. Under Bermudez’s theory, for example, a parent could be held liable for the tort of a grown child if the parent gave money or advice to help the child defend herself when sued. Partners in a limited liability company, shareholders in a corporation, or a parent corporation could find themselves similarly liable. Acceptance of such a theory would chill behavior that society previously viewed as benign and would upend existing legal relationships. Because it lacks support in law or policy, we reject Bermudez’s theory.

This is the tenth time this case has come before this tribunal. In the final analysis, we are sympathetic with the frustration that the Bermudez family may justly feel because the family’s attempts to collect its judgment have been thwarted. And, when the Tribe could have simply paid the judgment for its tribal members and recouped the funds by a gradual and incremental assessment over time against tribal distributions made to Billie and Bert, we may wonder at the wisdom of the Tribe in squandering legal fees and community goodwill in amounts that exceed the money required simply to pay the judgment. No law, however, supports Bermudez’s claim. A nonparty cannot be added to a lawsuit after a jury trial has been conducted and a final judgment has been entered in order to hold the nonparty liable to pay the tort damages awarded against another merely because the non-party funded or assisted in the defense of a lawsuit.

Because Bermudez has not established some cognizable legal basis to add the Tribe as a judgment debtor, we need not address the Tribe’s claim of sovereign immunity.

Reversed and remanded.

      . Miccosukee Tribe of Indians of S. Fla. v. Bermudez, No. 3D13-2153, 145 So.3d 157, 2014 WL 2965411 (Fla. 3d DCA July 2, 2014); Bermudez v. Bert, 108 So.3d 1099 (Fla. 3d DCA 2013); Bermudez v. Bert, 122 So.3d 377 (Fla. 3d DCA 2013); Miccosukee Tribe of Indians of Florida v. Tein, 97 So.3d 234 (Fla. 3d DCA 2012); Bert v. Bermudez, 95 So.3d 274 (Fla. 3d DCA 2012), reh’g denied (Aug. 9, 2012); Miccosukee Tribe of Indians of Florida v. Bermudez, 92 So.3d 232 (Fla. 3d DCA 2012), reh’g denied (July 19, 2012), review denied, 114 So.3d 935 (Fla.2013); Bert v. Ber-mudez, 86 So.3d 1127 (Fla. 3d DCA 2012); Bermudez v. Bert, 37 So.3d 374 (Fla. 3d DCA 2010); Billie v. Bermudez, 26 So.3d 591 (Fla. 3d DCA 2010); Bermudez v. Bert, No. 3D09-475 (Fla. 3d DCA Oct. 7, 2009).


author: PER CURIAM.

text:
    Miriam HERNANDEZ, Appellant, v. CITY OF MIAMI, Appellee.
    No. 3D13-2045.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Rehearing Denied Aug. 19, 2014.
    Miriam Hernandez, in proper person.
    Victoria Mendez, City Attorney, and John A. Greco, Deputy City Attorney, and Christopher A. Green, Assistant City Attorney, for appellee.
    Before SUAREZ, ROTHENBERG and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Rachid v. Perez, 26 So.3d 70, 72 (Fla. 3d DCA 2010).


text:
    Willie Raymond PETTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1502.
    District Court of Appeal of Florida, First District.
    July 8, 2014.
    Rehearing Denied Aug. 26, 2014.
    Willie Raymond Petty, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The “Petition for All Writs” is treated by the court as a petition for writ of mandamus, and is denied. See Pettway v. State, 776 So.2d 930 (Fla.2000).

BENTON, CLARK, and OSTERHAUS, JJ., concur.


author: ROTHENBERG, J.

text:
    Daniel A. SEPULVEDA, Petitioner, v. WESTPORT RECOVERY CORPORATION, Respondent.
    No. 3D14-223.
    District Court of Appeal of Florida, Third District.
    July 9, 2014.

      Kawel PLLC, and Andrew Paul Kawel, for petitioner.
    Friedman & Greenberg, P.A., and Robert D. Friedman, Plantation, for respondent.
    Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.
   ROTHENBERG, J.

Daniel A. Sepulveda’s (“Sepulveda”) second-tier petition for writ of certiorari comes to us from the Appellate Division of the Miami-Dade Circuit Court’s (“the circuit court”) denial of Sepulveda’s petition for writ of certiorari, which sought relief from a Miami-Dade County Court (“the county court”) order denying his motion to dismiss for lack of subject matter jurisdiction and allowing a levy sale of his property to proceed despite Sepulveda’s claimed homestead exemption. Although our second-tier certiorari review is extremely limited, because we find that the county court exceeded its jurisdiction by determining that Sepulveda’s claim of homestead did not prevent the levy sale, we conclude the circuit court departed from the essential requirements of law when it denied Se-pulveda’s petition. Accordingly, we grant Sepulveda’s petition and quash.the order below.

BACKGROUND

Nearly seventeen years ago, in October 1997, First Union National Bank of Florida (“First Union”) obtained a final judgment for approximately $9,000 against Se-pulveda’s sister, Wilda J. Arana (“Arana”), in Miami-Dade County Court. In July 2001, First Union sold its right to enforce the judgment to Westport Recovery Corporation (‘Westport”). Sometime prior to 2005, Sepulveda acquired the property in question, which is located in Polk County, Florida (“the Polk County Property”), and on October 3, 2005, Sepulveda transferred the Polk County Property to Arana. Two weeks after Sepulveda transferred the property to Arana, Westport recorded the 1997 county court judgment against Arana in Polk County. Several months later, Arana transferred the Polk County Property back to Sepulveda.

In February 2012, six and one-half years after recording the Miami-Dade judgment in Polk County, Westport reopened the 1997 county court case, substituted itself as plaintiff, and attempted to levy against Arana’s alleged right, title, and interest in the Polk County Property in order to satisfy the 1997 judgment. After learning of the pending levy sale of his property, Se-pulveda recorded a Notice of Claim of Homestead Real Property by Owner After Levy (“Notice of Homestead”), see § 222.02, Fla. Stat. (2013), on March 1, 2013, approximately two weeks before the levy sale was to take place.

After filing his Notice of Homestead, Sepulveda moved to dismiss the county court action on the basis that the county court lacked subject matter jurisdiction to determine the validity of his claimed homestead exemption. Sepulveda’s position below and on appeal is that the determination regarding his claimed homestead exemption lies exclusively within the circuit court’s jurisdiction based on section 222.10, Florida Statutes (2013). In response, Westport argued that: (1) section 222.10 was inapplicable because the 1997 judgment against Arana predated Sepulve-da’s claimed homestead exemption; (2) Se-pulveda’s Notice of Homestead, even if valid, was wholly irrelevant; and (3) even if section 222.10 applied, the county court had concurrent jurisdiction to determine homestead exemptions so long as the other jurisdictional requirements were met.

Despite Sepulveda’s Notice of Homestead, the county court denied Sepulveda’s motion to dismiss and granted Westport’s motion to allow the pending levy sale, finding that “the lien of the Final Judgment on the subject [Polk County] Property, recorded on October 18, 2005, in the Public Records of Polk County, Florida, has priority over the subsequently acquired title interest and homestead status of Daniel Sepulveda.” The county court, therefore, essentially found that it was ruling only on a priority of lien issue rather than making a homestead exemption determination.

Sepulveda filed a petition for writ of certiorari contesting the county court’s ruling in the appellate division of the Miami-Dade circuit court, and the circuit court denied the petition, affirming the county court’s reasoning and result. This second-tier petition for certiorari followed.

DISCUSSION

A district court’s second-tier cer-tiorari review — certiorari review of a circuit court sitting in its appellate capacity— is extremely limited. “The inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 528, 530 (Fla.1995). Thus, we review the circuit court’s decision only for legal error, and we treat all facts found by the county and circuit courts as established. See id. (“The standard of review for certiorari in the district court effectively eliminates the substantial competent evidence component.”).

The circuit court’s denial of Sepulveda’s petition for certiorari, however, was based entirely on a question of law. See Nissen v. Cortez Moreno, 10 So.Bd 1110, 1111 (Fla. 3d DCA 2009) (“[T]he issue of whether a court has subject matter jurisdiction involves a question of law that is reviewed de novo.”). In determining whether the circuit court departed from the essential requirements of law by denying the certiora-ri petition, we must consider Sepulveda’s challenge to the county court’s jurisdiction. Accordingly, we consider de novo: (1) whether the county court’s finding that Sepulveda’s Notice of Homestead was irrelevant to its determination of exemption under section 222.10 was in fact a determination of Sepulveda’s homestead exemption claim; and if so, (2) whether such a determination can be made by a county court, or rather, whether section 222.10 grants exclusive jurisdiction to the circuit courts of Florida to determine whether property shall be exempt from a forced sale once a Notice of Homestead is filed pursuant to section 222.01 or 222.02.

I. Whether the county court’s ruling was a determination of Sepulve-da’s homestead exemption claim

Article X, section 4 of the Florida Constitution provides, in pertinent part, as follows:

SECTION 4. Homestead; exemptions.—

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for [certain exceptions not relevant to this case], the following property owned by a natural person:
(1) a homestead ....

Section 4 provides one of the broadest protections for a citizen’s primary property in the nation. “[T]he constitutional homestead exemption ... ‘protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself.’ ” Osborne v. Dumoulin, 55 So.3d 577, 582 (Fla. 2011) (quoting Olesky v. Nicholas, 82 So.2d 510, 513 (Fla.1955)). Florida courts grant a liberal construction to the constitutional and statutory provisions in favor of the homeowner, and cast a restrictive eye towards exceptions to the homestead exemption. See Havoco of Am., Ltd. v. Hill, 790 So.2d 1018,1021 (Fla.2001) (“As previously mentioned, this Court’s homestead exemption jurisprudence has long been guided by a policy favoring the liberal construction of the exemption: ‘Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home.’”) (quoting Milton v. Milton, 63 Fla. 533, 58 So. 718, 719 (1912)).

Chapter 222 of the Florida Statutes further clarifies the constitutional homestead protection by explaining the process by which an owner or lessee of real property can declare his or her homestead rights and prevent an execution of judgment (i.e., a levy sale) against the property. “Sections 222.01 and 222.02 provide a means whereby a person may claim property as homestead and notify judgment creditors of the property’s exempt status under article X, section 4, either pre- or post-levy.” Osborne, 55 So.3d at 583; see also Grant v. Credithrift of Am., Inc., 402 So.2d 486, 488 (Fla. 1st DCA 1981) (allowing post-levy designation of homestead under section 222.02).

Once a homeowner has claimed a homestead exemption, the sheriff cannot levy against the property unless the creditor prevails against the homeowner’s claimed homestead exemption. Section 222.10 provides that: “The circuit courts have equity jurisdiction ... to determine whether any property, real or personal, claimed to be exempt, is so exempt.” Westport, however, convinced the county court that it did not need to make a homestead exemption determination, thereby avoiding the necessity of applying section 222.10. Westport claimed, and the county and circuit courts found, that because Westport conceded for purposes of its motion that the Polk County Property was Sepulveda’s homestead from the date Ara-na conveyed the property to him, the only issue the county court needed to determine was whether the timing of the recordation of the judgment predated Sepulveda’s homestead. Based on Westport’s arguments, both lower courts have framed the issue exclusively as a priority of liens contest, with the homestead exemption having only incidental impact, if any. Such an interpretation, however, would read a restriction into the statutory text that is not present.

Section 222.10 is worded quite broadly. It provides, in relevant part, that the circuit courts have jurisdiction “to determine whether any property ... claimed to be exempt, is so exempt ....” Thus, section 222.10 will apply in every case where a creditor is attempting to levy against property where a claim of homestead has been filed under section 222.01 or section 222.02.

These prerequisites were clearly met on these facts. It is undisputed that Sepulve-da filed his Notice of Homestead under section 222.02 after Westport attempted to levy against the Polk County Property to satisfy its judgment against Arana, but prior to the levy sale. The county court determined that Sepulveda’s homestead exemption did not prevent Westport from levying against the property, which is a clear determination “whether the property claimed to be exempt, is so exempt.” It matters not that the county court’s determination was based on the date of conveyance and the date of judgment. Therefore, section 222.10 applies to the matter at hand, and the county court erred when it concluded that it did not. The question we must now decide is whether the county court exceeded its jurisdiction by determining whether the property was exempt from levy under section 222.10.

II. Whether Florida circuit courts have exclusive jurisdiction over homestead exemption claims

The relevant jurisdictional provision, section 222.10, provides, in full:

The circuit courts have equity jurisdiction upon bill filed by a creditor or other person interested in enforcing any unsatisfied judgment or decree, to determine whether any property, real or personal, claimed to be exempt, is so exempt, and in case it be not exempt, the court shall, by its decree subject it, or so much thereof as may be necessary, to the satisfaction of said judgment or decree and may enjoin the sheriff or other officer from setting apart as exempt property, real or personal, which is not exempt, and may annul all exemptions made and set apart by the sheriff or other officer.

(emphasis added). Westport contends that the lack of mandatory or exclusive language in section 222.10 evinces a legislative intent to grant concurrent jurisdiction in the county and circuit courts over homestead exemption determinations. Westport contends that when the amount in dispute is $15,000 or less, jurisdiction lies in the county courts; and when the amount in dispute is in excess of $15,000, jurisdiction lies solely with the circuit court. Westport is incorrect. The circuit court has exclusive jurisdiction to determine the validity of a claimed homestead exemption.

The jurisdiction of the courts of our state is broadly defined by our State Constitution. Article V, section 5 of the Florida Constitution establishes and specifies the jurisdiction of the circuit courts of the State. Subsection 5(b) provides that:

The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of their jurisdiction. Jurisdiction of the circuit court shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by general law.

(emphasis added). Similarly, article V, section 6 of the Florida Constitution both establishes and prescribes the jurisdiction of the county courts of the State. Subsection 6(b) of article V provides: “The county courts shall' exercise the jurisdiction prescribed by general law. Such jurisdiction shall be uniform throughout the state.” (emphasis added). As is plain from the constitutional text, the circuit courts are courts of general jurisdiction — that is to say, we presume the circuit courts have jurisdiction over an action unless such jurisdiction is expressly vested exclusively in another tribunal. Conversely, the county courts are courts of limited jurisdiction, having authority over only those actions specifically designated by the legislature.

“Absent a constitutional prohibition or restriction, the legislature is free to vest courts with exclusive, concurrent, original, appellate, or final jurisdiction.” Alexdex Corp. v. Nachon Enters., Inc., 641 So.2d 858, 861 (Fla.1994). As to the circuit courts’ jurisdiction, section 26.012, Florida Statutes (2013), specifies, in relevant part, that:

(2) [The circuit courts] shall have exclusive original jurisdiction:
(a) In all actions at law not cognizable by the county courts;
(c) In all cases in equity including all cases relating to juveniles except traffic offenses as provided in chapters 316 and 985;
(g) In all actions involving the title and boundaries of real property.

(emphasis added).

Prior to 1990, county courts had no jurisdiction over cases in equity. However, in 1990, the legislature amended section 34.01 of the Florida statutes by adding subsection (4). Subsection (4) grants, to a limited degree, equitable jurisdiction to county courts. Specifically, subsection 34.01(4) provides: “Judges of county courts may hear all matters in equity involved in any case within the jurisdictional amount of the county court [$15,000 or less], except as otherwise restricted by the State Constitution or the laws of Florida.” (emphasis added).

The tension between the exclusive grant of jurisdiction to the circuit courts over “all cases in equity” in section 26.012(2)(c), and the subsequent 1990 amendment stating that county courts “may hear all matters in equity’-’ so long as the case is below the jurisdictional monetary amount, understandably created confusion regarding the circuit and county courts’ jurisdiction over equitable matters.. To resolve the confusion and potential conflict between section 26.012(2)(c) and section 34.01(4), the Florida Supreme Court held in Alexdex that “it is clear that in 1990 the legislature amended chapter 34 to grant limited equity jurisdiction to the county courts. Chapter 26, which vests circuit courts with exclusive original jurisdiction, remained unchanged.” Alexdex, 641 So.2d at 861 (citation omitted). Alexdex ultimately held that county and circuit courts enjoy concurrent equitable jurisdiction for controversies regarding $15,000 or less in dispute, but that the circuit courts retain exclusive equitable jurisdiction for cases disputing a greater amount. Id. at 862.

Based on the Florida Supreme Court’s ruling in Alexdex, Westport claims that, in all equitable matters, including homestead exemption determinations, the county and circuit courts enjoy concurrent jurisdiction when the amount in controversy is less than $15,000, the jurisdictional maximum for county courts. This argument, however, entirely discounts the reasoning supporting the Alexdex holding. In reaching its decision in Alexdex, the Court specifically attempted to give each statute its full effect and concluded that to interpret the two statutes otherwise would have rendered entire subsections of Florida’s jurisdictional statutes meaningless. The Court stated:

We now have two statutes that when considered separately are clear, precise, and their meanings understandable; yet when taken together they are inconsistent. To accept the proposition that the exclusive jurisdiction given to circuit courts in section 26.012 constitutes the “otherwise restricted by the laws of Florida” contained in section 34.01(4) would render the latter section totally meaningless. Therefore, in order to give each statute its full effect, we conclude that the legislature intended to provide concurrent equity jurisdiction in circuit and county courts, except that equity cases filed in county courts must fall within the county court’s monetary jurisdiction, as set by statute. A contrary holding would ignore the latest legislative expression on the subject and run counter to our principle enunciated in [State v.] Sullivan, that a statute should not be interpreted in a manner that would deem legislative action useless. 95 Fla. [191] at 207, 116 So. [255] at 261 [ (1928) ].

Id. at 861-62 (emphasis added) (footnotes omitted).

It remains a key tenet of statutory interpretation that the courts of this state are to read statutes holistically and give some effect to the terms adopted by the legislature. See Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007) (“[Florida courts] are required to give effect to ‘every word, phrase, sentence, and part of the statute, if possible, and words in a statute should not be construed as mere surplusage.’ ” (quoting Am. Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360, 366 (Fla.2005))).

It is clear that the equity jurisdiction of the county courts must yield to a specific grant of equitable jurisdiction to the circuit courts. § 34.01(4) (“Judges of county courts may hear all matters in equity involved in any case ... except as otherwise restricted by the State Constitution or the laws of Florida.” (emphasis added)). And section 222.10 provides that, “The circuit courts have equity jurisdiction ... to determine whether any property, real or personal, claimed to be exempt [as homestead], is so exempt.” Because the circuit and county courts already have concurrent jurisdiction over equitable actions involving $15,000 or less, Alexdex, 641 So.2d at 862, section 222.10 would be of no consequence if it is not a grant of exclusive jurisdiction over homestead determinations to the circuit courts.

Therefore, we find that the action below was a determination of homestead exemption under section 222.10, and that such determinations are within the exclusive province of the circuit courts of Florida. Accordingly, the county court exceeded its subject matter jurisdiction by determining that Sepulveda’s Claim of Homestead did not exempt the property from levy; and the circuit court departed from the essential requirements of law by denying Se-pulveda’s petition for writ of certiorari to correct the county court’s improper exercise of its jurisdiction.

Petition granted; order quashed.

      . Section 222.02 allows a property owner to serve a notice of homestead exemption on the levying officer after property has been levied upon so long as the notice is served before the date of the levy sale. Section 222.02 reads, in full:
      Whenever a levy is made upon the lands, tenements, mobile home, or modular home of such person whose homestead has not been set apart and selected, such person, or the person's agent or attorney, may in writing notify the officer making such levy, by notice under oath made before any officer of this state duly authorized to administer oaths, at any time before the day appointed for the sale thereof, of what such person regards as his or her homestead, with a description thereof; and the remainder only shall be subject to sale under such levy.

      . Section 222.10 grants Florida’s circuit courts equity jurisdiction over homestead exemption disputes. It reads, in full:
      The circuit courts have equity jurisdiction upon bill filed by a creditor or other person interested in enforcing any unsatisfied judgment or decree, to determine whether any property, real or personal, claimed to be exempt, is so exempt, and in case it be not exempt, the court shall, by its decree subject it, or so much thereof as may be necessary, to the satisfaction of said judgment or decree and may enjoin the sheriff or other officer from setting apart as exempt property, real or personal, which is not exempt, and may annul all exemptions made and set apart by the sheriff or other officer, (emphasis added).

      . The homestead exemption also provides certain tax protections, but those provisions are not germane to the issues presented in this case.

      . Osborne also noted that the homestead exemption protection is so rigorous that even a debtor who fails to observe these statutory declarations and claim the exemption may still be able to set aside a levy sale. Id. (citing Albritton v. Scott, 73 Fla. 856, 74 So. 975, 975 (1917)).

      . Section 222.10 may even apply to homeowners who intend to protect their property, but do not properly claim the homestead exemption under sections 222.01 or 222.02. See Osborne, 55 So.3d at 583 (stating that the failure to strictly comply with 222.01 and 222.02 does not waive a homeowner’s homestead rights).

      . A determination of the validity of a claimed homestead exemption under section 222.10 sounds in equity. § 222.10 (granting circuit courts "equity jurisdiction”); See also Grant, 402 So.2d at 489 n. 5 (quoting section 222.10, Fla. Stat. (1979)).


text:
    Thomas KAHLOW, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D14-2340.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Rehearing Denied Aug. 26, 2014.
    Thomas Kahlow, pro se, Petitioner.
    Sarah J. Rump, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R. App. P. 9.100(c)(1); Donaldson v. State, 136 So.3d 1281, 1282 (Fla.2d DCA 2014); Fla. R. App. P. 9.330(a).

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Barrington E. MORAIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2549.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Rehearing Denied Aug. 26, 2014.
    Barrington E. Moráis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    George JACKMORE, Appellant, v. In re ESTATE OF William JACKMORE, Deceased, and Scott Brian Jackmore, Appellees.
    No. 1D11-6680.
    District Court of Appeal of Florida, First District.
    July 14, 2014.
    Rehearing Denied Aug. 26, 2014.
    Valarie Linnen, Atlantic Beach, for Appellant.
    Merrilee A. Jobes and Adrian Philip Thomas of Adrian Philip Thomas, P.A., Fort Lauderdale, for Appellees.
   PER CURIAM.

The appellant challenges the trial court’s order imposing sanctions against him pursuant to section 57.105, Florida Statutes (2011). We affirm the trial court’s award of attorney’s fees without discussion. We, however, reverse the trial court’s award of costs. An award of costs is not authorized under section 57.105. See Ferdie v. Isaacson, 8 So.3d 1246, 1251 (Fla. 4th DCA 2009) (explaining that section 57.105 allows for an award of reasonable attorney’s fees to the prevailing party, but makes no mention of costs).

Our colleague concludes that we should remand to the trial court to have the attorney’s fees split between the appellant and his counsel. However, the appellant’s entire argument in his brief is that the fees should be borne by his counsel and none by the appellant. The only portion of the appellant’s brief that can be interpreted as raising the issue that the attorney’s fees should be split is in the “Summary of the Argument” section of the initial brief on the bottom of page 13, to wit:

Second, the probate court erred in awarding sanctions against Appellant alone, without apportioning any liability to appellant’s counsel, where Appellee failed to establish that Appellant misrepresented material facts to the probate court.

There are no cases or statutes cited in support of this, and the appellant in the “Argument” section of the brief solely pursued the theory that the appellant was not responsible for any of the attorney’s fees. This is exactly the type of single-sentence, non-supported, and non-elaborated “argument” that this Court refused to consider in Henderson v. State, 569 So.2d 925, 927 (Fla. 1st DCA 1990), and we shall not consider it here.

AFFIRMED IN PART and REVERSED IN PART.

PADOVANO and ROBERTS, JJ., concur;

BENTON, J., concurs in part and dissents in part with opinion.

BENTON, J.,

concurring in part and dissenting in part.

I concur in the judgment except that I would reverse half the fee award entered against appellant. In the order under review, the trial court determined: “Petitioner pursued no novel legal argument that was not foreclosed by existing case law or statutory authority.” But the trial court did not find that the losing party’s attorney acted in good faith.

Although appellant might have argued more forcefully and with greater clarity that he should not have been held responsible for the entire attorney’s fee awarded, he did argue in the initial brief that “the probate court erred in awarding sanctions against Appellant alone, without apportioning any liability to Appellant’s counsel.” See § 57.105(1), Fla. Stat. (2011) (providing “the court shall award a reasonable attorney’s fee ... to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney....”).

It may also be worth noting that, while an award of costs is not authorized under section 57.105, Florida Statutes (2011), such awards are authorized under section 57.041(1), Florida Statutes (2011), if timely requested. See Fla. R. Civ. P. 1.525; Fla. Prob. R. 5.025(d)(2).


text:
    Jesus GALARZA, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-664.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2014.
    Rehearing Denied Aug. 22, 2014.
    Jesus Galarza, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ghent v. State, 27 So.3d 121 (Fla. 4th DCA 2010).

TORPY, C.J., ORFINGER and LAWSON, JJ., concur.


text:
    MIAMI ASSOCIATION OF FIRE FIGHTERS, LOCAL 587, OF The INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS OF MIAMI, FLORIDA, Appellant, v. CITY OF MIAMI, Appellee.
    No. 3D12-1256.
    District Court of Appeal of Florida, Third District.
    July 16, 2014.
    Rehearing Denied Aug. 28, 2014.
    Phillips, Richard & Rind and Osnat K. Rind, Christina S. Gornail and Kathleen Phillips, for appellant.
    Julie O. Bru, City Attorney, and Diana Vizcaino and John A. Greco, Assistant City Attorneys, for appellee.
    Richard A. Sicking, for Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO; Meyer, Brooks, Demma & Blohm and Thomas W. Brooks (Tallahassee), for Florida Education Association; G. Hal Johnson (Tallahassee), for Florida Police Benevolent Association; Donnelly and Gross and Paul A. Donnelly (Gainesville), for Communications Workers of America, as amicus curiae for appellant.
    Bryant Miller Olive and David C. Miller and James C. Crosland, for City of Hollywood, as amicus curiae for appellee.
    Before SHEPHERD, C.J., and WELLS and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Headley v. City of Miami, 118 So.3d 885 (Fla. 1st DCA 2013).


text:
    J.O., Father of M.O., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D14-763.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2014.
    Rehearing Denied Aug. 19, 2014.
    Jason Osborn, Lecanto, pro se.
    Deborah A. Schroth, Jacksonville, for Appellee.
    Wendie M. Cooper of Guardian ad Li-tem Program, Sanford, for Guardian ad Litem Program.
   PER CURIAM.

Appellant challenges the order adjudicating his son dependent. We affirm the order in all respects except that portion of the order that prohibits contact between Appellant and the child until Appellant is released from incarceration. Although the goal of the case plan is reunification, the order prohibits any form of contact, even telephonic. The order does not set forth any findings of fact to support this conclusion. Accordingly, we reverse that aspect of the order and remand this cause for further proceedings on that issue.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

TORPY, C.J., ORFINGER and BERGER, JJ., concur.


text:
    Veronica VAZQUEZ, Appellant, v. CITIMORTGAGE, INC., Appellee.
    No. 1D14-1867.
    District Court of Appeal of Florida, First District.
    July 22, 2014.
    Rehearing Denied Aug. 26, 2014.
    Veronica Vazquez, pro se, Appellant.
    Nancy M. Wallace and Michael J. Larson, of Akerman LLP, Tallahassee; William P. Heller, of Akerman LLP, Fort Lauderdale, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s Motion for Extension of Time to File Notice of Appeal, which is treated as a response to the order of April 28, 2014, the Court has determined that its jurisdiction was not timely invoked. Accordingly, the appeal is dismissed.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Harens Aleydi ERAZO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2934.
    District Court of Appeal of Florida, First District.
    July 24, 2014.
    Rehearing Denied Aug. 29, 2014.
    Harens Aleydi Erazo, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(d)(5).

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


author: SWANSON, J.

text:
    Cederick L. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3279.
    District Court of Appeal of Florida, First District.
    July 28, 2014.
    Rehearing Denied Aug. 27, 2014.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

In this appeal from his conviction for first-degree premeditated murder, appellant claims the trial court (1) abused its discretion by denying appellant’s motion for mistrial after sustaining a defense objection to the prosecutor’s reference to Jeffrey Dahmer during voir dire and giving a curative instruction; (2) erred in denying appellant’s motion for judgment of acquittal on the ground the state failed to prove premeditation; and (3) committed fundamental error by failing to give a special jury instruction on “instantaneous intent to kill.” We affirm as to all three claims and write only to explain our decision to affirm the denial of appellant’s motion for mistrial.

During jury selection, the prosecutor informed the potential jurors that appellant’s sanity would be an issue at trial and asked if they understood that a mental defect alone did not satisfy the legal definition of insanity if the defendant knew the consequences of his actions or knew what he was doing was wrong. As part of this inquiry, the prosecutor commented:

You know, my wife, she always reads crime novels and stuff and it drives me crazy because she always asks questions. And she knows what I do for a living so she thinks I always have the answer. Sometimes I don’t, but I can just give her a guess. But she was asking me, all right — and it was some serial killer. I want to say it was Jeffrey Dahmer, but I don’t know who, that kidnapped a bunch of people and cut them up and even ate some of them, I think.

Defense counsel objected and moved for a mistrial on the ground the prosecutor’s reference to a notorious mass murderer was improper, inflammatory, and tainted the jury. The prosecutor responded that he referenced Jeffrey Dahmer to make the point that “[i]f somebody does something very crazy and very unusual, they can still be found guilty.” Concluding the reference was inflammatory and brought up associations that had no place in appellant’s trial, the trial court sustained the objection, denied the motion for mistrial, and offered to give a curative instruction. At defense counsel’s request, the trial court instructed the jury to disregard the prosecutor’s reference to Jeffrey Dahmer. At the conclusion of voir dire, six jurors and two alternates were accepted and sworn without objection. Appellant did not renew the motion for mistrial until the conclusion of the state’s case-in-chief and, again, at the conclusion of all the evidence.

It is within the trial court’s discretion to determine whether remarks made by the prosecutor during voir dire are prejudicial, and the trial court’s denial of a motion for mistrial or a motion to strike the venire will not be disturbed on appeal absent an abuse of that discretion. Smelley v. State, 500 So.2d 318, 321 (Fla. 1st DCA 1986). Although appellant objected to the prosecutor’s voir dire remarks and moved for a mistrial, appellant failed to preserve his claim regarding the denial of his motion for mistrial because he accepted the jury without objection and failed to renew the motion for mistrial before the jury was sworn. See Bell v. State, 108 So.3d 639, 651 (Fla.2013) (holding that defendant’s challenge to the prosecutor’s voir dire comments was not preserved for appeal where defendant objected to the comments, but failed to renew his objection prior to the jury being sworn). Appellant’s renewal of the motion for mistrial after the state had presented its case-in-chief was untimely. Even if appellant’s claim was preserved, the trial court did not abuse its discretion by denying the motion for mistrial because the prosecutor’s comment was brief and isolated and the trial court immediately sustained appellant’s objection and gave a curative instruction. See Mignotte v. State, 576 So.2d 809, 810 (Fla. 3d DCA 1991) (affirming the trial court’s denial of murder defendant’s motion for mistrial based on the prosecutor’s reference to Ted Bundy during closing argument on the issue of whether defendant was legally sane at the time of the murder).

AFFIRMED.

VAN NORTWICK and CLARK, JJ, concur.


text:
    J. MILTON DADELAND, LLC, etc., Appellant, v. ABALA, INC., etc., et al., Appellees.
    Nos. 3D13-2624, 3D13-844.
    District Court of Appeal of Florida, Third District.
    July 30, 2014.

      Robert P. Frankel & Associates, P.A., and Robert P. Frankel, Miami, for appellant.
    Fowler White Burnett, P.A., and June Galkoski Hoffman, Fort Lauderdale, for appellees.
    Before WELLS, LOGUE, and SCALES, JJ.
   LOGUE, J.

J. Milton Dadeland, LLC appeals a final judgment that awarded Abala, Inc. a real estate commission of $1,470,000.00. We affirm.

FACTS AND PROCEDURAL HISTORY

Colony RB-GEM, LLC (“the Owner”) owned the property at issue in this case. In order to market the property, the Owner entered into commission agreement with a real estate agency, Abala, Inc. (“the Broker”). The commission agreement provided the Broker would be owed a commission of 6% if the property sold, and that the Broker “ha[d] the right to place a Lien on the property for the full amount of commission due.”

Shortly afterwards, the Owner signed a contract to sell the property to certain entities who ultimately assigned the right to purchase to J. Milton Dadeland, LLC (“the Purchaser”). The sale was a short sale approved by the Owner’s lender for the amount of $25,000,000. After the sale agreement was signed, but before the closing took place, the Broker recorded a lien for its commission in the public records. Upon learning of the lien, the Purchaser sued the Owner and the Owner’s lender to remove the lien filed by the Broker. The parties settled that lawsuit. The Purchaser received a $500,000 reduction in the purchase price, and a $70,000 check at closing. The parties closed on the contract and a warranty deed transferring the property was executed which expressly acknowledged that the Broker claimed a lien for its commission.

After the closing, the Purchaser sued the Broker and other defendants essentially to cancel the lien. The Broker counterclaimed. Following a bench trial, the trial court entered judgment in favor of the Broker and the other defendants. This appeal followed.

ANALYSIS

The Purchaser argues that the trial court erred in recognizing that the Broker has a lien on the property. It contends that the only lien for a real estate commission authorized by law is a lien on the proceeds of sale provided by the Florida Commercial Real Estate Sales Commission Lien Act, section 475.700, Florida Statutes (2009), et. seq. (“the Lien Act”). We disagree. We hold that the remedy of a lien against the proceeds of sale provided by the Lien Act is not exclusive.

The Lien Act provides that a real estate agent can obtain a lien for his or her commission on the “owner’s net proceeds” from the sale of commercial real estate. § 475.703. The lien provided by the Lien Act, however, is only against the “owner’s net proceeds,” not the real estate that was sold:

A broker has a lien upon the owner’s net proceeds from the disposition of commercial real estate for any commission earned by the broker with respect to that disposition pursuant to a brokerage agreement. The lien upon the owner’s net proceeds pursuant to this part for a broker’s commission is a lien upon personal property, attaches to the owner’s net proceeds only, and does not attach to any interest in real property.

§ 475.703(1). The Lien Act also sets forth a number of notices and disclosures that a broker must make to an owner before entering into a brokerage agreement that would permit such a lien. § 475.703(5).

The Purchaser argues that the requirements set forth in section 475.703(5) were not complied with here and therefore the Broker is not entitled to a lien. What the Purchaser’s argument overlooks is that the Broker is not asserting a lien under the Lien Act. The premise of the Purchaser’s argument is that the Lien Act is the sole remedy available to a broker. We reject this premise.

In the first place, nowhere does the Lien Act indicate that its remedy was intended to be exclusive. In fact, such an interpretation would lead to absurd results. The lien provided by the Lien Act attaches only to “the owner’s net proceeds from the disposition of commercial real estate.” § 475.703(1). In situations such as this, where there is a short sale, there are no net proceeds. A broker would be entitled to no meaningful security for its commission if we accepted the Purchaser’s interpretation of the Lien Act.

Furthermore, Florida Statutes expressly provide that a broker may place a lien on real estate in certain circumstances. The Statutes provide that a broker may not place a lien on real property to collect a commission if the broker knows the lien to be false:

A broker or sales associate may not place, or cause to be placed, upon the public records of any county, any ... writing which purports to affect the title of, or encumber, any real property if the same is known to her or him to be false, ... for the purpose of collecting a commission, or to coerce the payment of money to the broker or sales associate or other person, or for any unlawful purpose.

§ 475.42(l)(j), Fla. Stat. (2009). The clear inference from such language is that the broker may place a lien on property if it is not false. In fact, the statute goes on and expressly says as much. The section specifically adds that a broker may place a lien on real property where expressly permitted by contract, stating that:

nothing in this paragraph shall be construed to prohibit a broker or a sales associate from recording a judgment rendered by a court of this state or to prohibit a broker from placing a lien on a property where expressly permitted by contractual agreement or otherwise allowed by law.

Id:

So, although the first sentence of section 475.42(l)(j) would preclude a broker from filing a false or unauthorized lien on property in order to collect a commission, the last sentence makes clear that a broker would not be prohibited from placing a lien on property to collect a commission that was permitted by contract. In fact, this court has noted that this last sentence was added to the Statute to allow a broker to file a lien to collect his or her commission. Alamagan Corp. v. Daniels Group, Inc., 809 So.2d 22, 27 (Fla. 3d DCA 2002) (distinguishing cases that “were decided prior to the 1985 amendments to section 475.42, which added the final sentence permitting a broker to record a judgment”); see also Michel v. Beau Rivage Beach Resort, Inc., 774 So.2d 900, 902 (Fla. 4th DCA 2001) (noting “the last sentence of section 475.42(l)(j) provides that the broker is not “prohibit[ed] ... from placing a lien on a property where expressly permitted by contractual agreement”).

Here, the commission agreement unambiguously entitles the Broker to a 6% commission on the gross contract sales price, and authorizes the Broker to place a lien on the property for the amount of that commission. As such, the lien is “permitted by contractual agreement,” and is proper under section 475.42(l)(j). There is no question here whether the Purchaser was on notice of the lien: not only was the lien recorded in the public records, but the Purchaser litigated regarding the lien and obtained a reduction in the contract purchase price because of it.

CONCLUSION

Because the Broker’s lien was permitted under the commission agreement, the lien was proper under section 475.42(l)(j). The trial court correctly enforced the Broker’s rights pursuant to the lien. We affirm the other points on appeal without discussion.

Affirmed.