source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    Ricardo FUNESVALLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2102.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Ricardo Funesvalle challenges his first degree murder and robbery convictions, arguing error in the denial of his motion to suppress statements made to police and in the giving of a “principals” instruction. Finding no merit in either claim, we affirm the defendant’s convictions. We reject defendant’s argument that statements he made to the transporting officer, prior to any interrogation, served as an invocation of his right to counsel and required suppression of subsequent post-Miranda statements to two West Palm Beach detectives; we write solely to address this issue.

Evidence at the suppression hearing established the defendant was arrested in Tampa, pursuant to a warrant, and transported to a Tampa jail. As the transport ended, and at or about the time the defendant exited the patrol car, he spontaneously asked the transporting officer “[w]ill my lawyer be here.” The officer responded, “No, I don’t think so, but I’m sure that you will get a lawyer, but not here” or “no, that I didn’t believe that he would have a lawyer but one would definitely be provided for him.” Without prompting, the defendant stated, “I need to talk to my lawyer. I killed a life, and I need to talk to my lawyer; I need to tell him a lot.” The transporting officer had no further conversation with the defendant and the defendant was placed in a holding cell.

West Palm Beach detectives indicated their conversation with the defendant took place at least an hour and a half after the defendant’s statements to the transporting officer, i.e., the detectives were still about one and a half hours away from Tampa when they learned of the comments. At the outset of the conversation, the detectives raised the matter of the defendant’s “lawyer” comments to the transporting officer and informed the defendant of his right to remain silent, his right to counsel before he made any statement and during questioning and that, if he desired a lawyer, but could not afford to pay for one, then the courts would appoint one for him and he wouldn’t have to pay. Thereafter, the detectives reaffirmed the defendant’s right to counsel several times. The defendant said he wanted to talk to the detectives and “to say the truth.” The defendant then made incriminating statements.

In seeking to suppress these statements, the defendant argued his statements to the transporting officer amounted to an invocation of the right to counsel, and, thus, the West Palm Beach detectives were prohibited from questioning him until counsel was provided or unless he initiated contact with police — neither of which occurred. In short, we find that the defendant’s statements to the transporting officer could not serve as an effective invocation of his Fifth Amendment right to counsel under Miranda because, at the time, custodial interrogation had not begun and was not sufficiently imminent. See Sapp v. State, 690 So.2d 581, 586 (Fla.1997) (holding that rule of law “requiring the invocation to occur either during custodial interrogation or when it is imminent strikes a healthier balance between the protection of the individual from police coercion ... and the State’s need to conduct criminal investigations”); Pardon v. State, 930 So.2d 700, 703-04 (Fla. 4th DCA 2006) (holding that custodial interrogation not imminent where a “few hours” passed between defendant’s asking toansporting officer about a lawyer and questioning; defendant’s comments to transporting officer did not prevent detective from later reading defendant his Miranda rights in anticipation of interrogation); see also Ault v. State, 866 So.2d 674, 682-83 (Fla.2003) (holding invocation of right to counsel executed in connection with unrelated attempted sexual battery charge not effective to invoke right to counsel in connection with investigation concerning disappearance of two girls so as to preclude police from initiating contact with defendant the following day).

Accordingly, having considered all issues raised, we affirm the defendant’s convictions.

Affirmed.

WARNER and GERBER, JJ., concur.

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


author: CASANUEVA, Judge.

text:
    Howard E. BENTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5556.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2013.
    Rehearing Denied March 10, 2014.
    Howard E. Bentley, pro se.
   CASANUEVA, Judge.

We affirm the postconviction court’s summary denial of Howard E. Bentley’s motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) without prejudice for Bentley to refile his motion to state a facially sufficient claim. Such a claim would specifically identify the portions of the record that demonstrate, on their face, his entitlement to relief. See Johnson v. State, 60 So.3d 1045, 1051 (Fla.2011). Such a motion shall not be considered successive.

Affirmed.

VILLANTI and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    Alex REID, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-2781, 4D13-2778.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2013.
    Alex Reid, Coral Springs, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Davis v. State, 104 So.3d 1279 (Fla. 4th DCA 2013).

GROSS, CIKLIN and GERBER, JJ., concur.


author: ALTENBERND, Judge.

text:
    Diana McLAUGHLIN, M.D., and Diana McLaughlin, M.D., P.A., d/b/a Kid’s Medical Care, Petitioners, v. Adolfo LARA and Lydia Labra, as Father and Mother and Natural Guardians of Christian Lara-Labra, a Minor, Respondents. Diana McLaughlin, M.D., and Diana McLaughlin, M.D., P.A., d/b/a Kid’s Medical Care, Appellants, v. Adolfo Lara and Lydia Labra, as Father and Mother and Natural Guardians of Christian Lara-Labra, a Minor; Mag Mutual Insurance Company, Appellees.
    Nos. 2D13-1684, 2D13-4631.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2013.
    Rehearing Denied Feb. 24, 2014.

      Diana McLaughlin, M.D., pro se.
    Craig R. Stevens, Morgan and Morgan, P.A., Fort Myers, for Appellees Adolfo Lara and Lydia Labra.
    Michael R. D’Lugo and Richards H. Ford of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Intervenor/Appel-lee MAG Mutual Insurance Company.
   ORDER DISMISSING PROCEEDINGS

ALTENBERND, Judge.

Diana McLaughlin, both in her individual capacity as a medical doctor and as a licensed attorney attempting to represent Diana McLaughlin, M.D., P.A., d/b/a Kid’s Medical Care, commenced two proceedings in this court.

Dr. McLaughlin and her professional association were sued in 2010 by Adolfo Lara and Lydia Labra as parents and natural guardians of their minor son. The complaint alleged that Dr. McLaughlin had failed to timely diagnose and treat a condition in the child’s eye that resulted in a substantial loss of vision. Dr. McLaughlin had purchased applicable medical malpractice insurance from MAG Mutual Insurance Company. That insurance company retained an attorney to represent Dr. McLaughlin.

Dr. McLaughlin apparently was not satisfied with her defense and filed an appearance in the lawsuit to represent herself and her professional association as co-counsel. When she attempted to participate in the prosecution of the case in ways that the trial court regarded as disruptive, the trial court entered an order that severely restricted her activities in the trial court proceeding.

In case number 2D13-1684, Dr. McLaughlin filed a petition for a writ of common law certiorari in this court, claiming that the order restricting her activities in the trial court deprived her of a right of self-representation and prevented her professional association from retaining the co-counsel of its choice. This court initially dismissed the proceeding, but on motion for rehearing we concluded that relief might be available. As a result, this court ordered a response from the respondents, who at that point were only the plaintiffs in the trial court proceeding.

While this court was considering whether to grant or deny the petition, we were informed by MAG Mutual that the trial court proceeding had been settled. MAG Mutual sought to intervene in the certiora-ri proceeding. We deferred ruling on MAG Mutual’s motion but ordered the parties to show cause why the petition should not be dismissed as moot.

Because the certiorari proceeding did not stay activity in the trial court, the plaintiffs petitioned that court for an order approving a settlement for the minor. Dr. McLaughlin filed an objection, seeking to prevent her insurance company from paying her patient’s family to settle the lawsuit because she had not consented to the settlement. The trial court held a hearing on August 23, 2013. At that hearing, it granted MAG Mutual’s motion to intervene. It denied Dr. McLaughlin’s objection to the settlement. The trial court entered an order granting the petition for approval of the settlement for the minor. On September 11, 2013, presumably after MAG Mutual paid the agreed settlement, the plaintiffs served a notice of voluntary dismissal of their lawsuit against Dr. McLaughlin.

On September 19, 2013, Dr. McLaughlin filed a notice of appeal challenging the order denying her objection and the order approving the settlement. That appeal is now case number 2D13-4631. MAG Mutual, as an intervenor in the trial court, is an appellee in that appeal. Although it may not be necessary, we grant its motion to intervene in the earlier filed petition for writ of common law certiorari.

It is clear from the arguments that have been presented to this court that Dr. McLaughlin maintains she is aggrieved by the orders recently appealed because those orders allow a settlement without her consent. She maintains that she has the contractual or statutory right to control the settlement. Without ruling on the merits of her argument, we conclude that she is not actually aggrieved by these orders and has no right to appeal them or otherwise have them evaluated by this court.

The order denying her objection to the settlement is clearly not a final, appealable order. Furthermore, the order is not an interlocutory order included in the list of appealable nonfinal orders under Florida Rule of Appellate Procedure 9.130.

To the extent that the order denying her objection is also an order enforcing a settlement, appealability is a more complex issue. In many instances, such orders are not themselves appealable. See Baron v. Provencial, 908 So.2d 526 (Fla. 4th DCA 2005). If the order forces a party to sign a release or make a payment against the party’s will, it sometimes can be appealed. See Long Term Mgmt., Inc. v. Univ. Nursing Care Ctr., Inc., 704 So.2d 669 (Fla. 1st DCA 1997). More commonly, the order enforcing settlement leads to a final judgment that is appealable. See Geico Cas. Co. v. Lopez, 988 So.2d 162 (Fla. 4th DCA 2008). But this order enforcing settlement did not require Dr. McLaughlin to take any action or make any payment. She did not need to sign a release or stipulate to any dismissal. No final judgment was ever entered based on the order enforcing settlement; the case was voluntarily dismissed.

As to the order approving the settlement for the minor, there is no question that such an order can be appealed. See Fla. RApp. P. 9.170(b)(10). However, the purpose of an order approving a minor’s settlement is not to protect any legal right a defendant may have to control settlement but instead it is to protect the interests of the minor and the guardian and to ensure that any release given on behalf of the minor is legally effective. See § 744.387, Fla. Stat. (2010). Dr. McLaughlin simply is not aggrieved in any legal sense by the court’s decision that this settlement with funds from MAG Mutual is in the best interest of the child.

The plaintiffs had a legal right to voluntarily dismiss their action against Dr. McLaughlin without her consent at the time they dismissed this action. See Fla. R. Civ. P. 1.420(a). In the rare circumstance in which an outsider wishes to pay a plaintiff and the plaintiff chooses to file a voluntary dismissal of an action against a defendant, it generally should be very difficult for a defendant, at least in the absence of an established claim to attorneys’ fees, to demonstrate that it has been aggrieved by any appealable order entered in the case. After the plaintiffs filed a notice of voluntary dismissal in the trial court, we cannot conceive of any original proceeding that might allow for the review of these orders.

As we suggested in our order to show cause in the certiorari proceeding, if Dr. McLaughlin believes that MAG Mutual breached the insurance contract or violated a statutory obligation that it owed to her, her remedy is to bring an action against MAG Mutual, not to delay the settlement between MAG Mutual and her patient’s family. The trial court in this action, which is an action between Dr. McLaughlin and her patient, had no reason to resolve any contractual or statutory dispute between Dr. McLaughlin and MAG Mutual. It did not do so. Nothing that has occurred in the settlement of this action would serve as collateral estoppel or otherwise bar her claim to a remedy against MAG Mutual for an unauthorized settlement if, in fact and law, she has such a claim.

Accordingly, we dismiss case number 2D13-4681 as an appeal from nonap-pealable orders. We dismiss case number 2D13-1684 as a moot certiorari proceeding in light of the voluntary dismissal of the trial court proceeding.

KHOUZAM and SLEET, JJ„ Concur.


author: SUAREZ, J.

text:
    Pablo A. ANTONELLI, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Patrick Lorzeille, Osvaldo M. De Domingo, Paola Fabrizo, Zuleima Josefa De Haros Cuadros, and Liberty Mutual Insurance Company, etc., Appellees.
    No. 3D12-1656.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.
    Rehearing Denied March 20, 2014.
    Arthur J. Morburger, Miami, for appellant.
    Before SUAREZ, LAGOA and EMAS, JJ.
   SUAREZ, J.

Michael J. Neimand, for United Automobile Insurance Company.

Pablo Antonelli seeks to reverse a final summary judgment in favor of United Automobile Insurance Company (“UA”). We affirm in part and reverse in part.

We affirm that part of the final judgment finding no coverage for any bodily injury claims arising out of the accident in question pursuant to the unambiguous named driver exclusion provision agreed to by Mr. Antonelli at the time he obtained the commercial vehicle insurance policy. At the time of the accident, the commercial vehicle was being driven by Osvaldo M. De Domingo, who had not been added as a driver after the policy was obtained. Therefore, pursuant to the named driver exclusion, the policy does not provide bodily injury coverage for any claims due to the accident. We reverse, however, that portion of the final judgment finding no personal injury protection (“PIP”) or property damage coverage under the policy at issue because, as UA correctly points out, those particular coverages are statutorily mandated. § 627.736, Fla. Stat. (2013); § 324.022, Fla. Stat. (2013); see United Auto. Ins. Co. v. Reece, 4 So.3d 80 (Fla. 3d DCA 2009).

Affirmed in part and reversed in part.


author: TAYLOR, J.

text:
    Dianne L. HAHAMOVITCH n/k/a Dianne Lynn, Appellant/Cross-Appellee, v. Harry H. HAHAMOVITCH, Appellee/Cross-Appellant.
    No. 4D10-3051.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Rehearing Denied Feb. 3, 2014.

      Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for appellant/cross-ap-pellee.
    Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellee/cross-appellant.
   TAYLOR, J.

The wife appeals an amended final judgment entered in this dissolution action, arguing that 1) the trial court erred by finding the parties’ prenuptial agreement to be valid; 2) even if the prenuptial agreement was valid, the trial court erred in its interpretation of it; 3) the trial court erred with respect to the child support award; and 4) the trial court erred in curtailing discovery. The husband cross-appeals two of the trial court’s rulings in connection with the validity of the prenuptial agreement, but we construe these as alternative arguments for upholding the prenuptial agreement. We affirm in part, reverse in part, certify conflict with other districts, and certify a question of great public importance.

Validity of Prenuptial Agreement

A trial court’s decision to uphold an antenuptial agreement must be supported by competent, substantial evidence. See Waton v. Waton, 887 So.2d 419, 421-22 (Fla. 4th DCA 2004); Herrera v. Herrera, 895 So.2d 1171, 1175 (Fla. 3d DCA 2005).

A party may challenge a prenuptial agreement in one of two ways. The first ground for setting aside an antenuptial agreement is satisfied where a spouse establishes that the agreement was the product of “fraud, deceit, duress, coercion, misrepresentation, or overreaching.” Casto v. Casto, 508 So.2d 330, 333 (Fla.1987). The second ground for vacating a prenuptial agreement contains multiple elements. Id.

To challenge the antenuptial agreement on the second ground, “[initially, the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties.” Id. When claiming that an agreement is unreasonable, the challenging spouse must present evidence of the parties’ relative situations, including their respective ages, health, education, and financial status. Id. “[A] trial court may determine that the agreement, on its face, does not adequately provide for the challenging spouse and, consequently, is unreasonable. In making this determination, the trial court must find that the agreement is ‘disproportionate to the means’ of the defending spouse.” Id. “This finding requires some evidence in the record to establish a defending spouse’s financial means.” Id.

However, “[t]he element of fairness should, of course, be measured as of the time of the execution of the agreement.” Del Vecchio v. Del Vecchio, 143 So.2d 17, 20 (Fla.1962); see also Francavilla v. Francavilla, 969 So.2d 522, 526 (Fla. 4th DCA 2007) (determining the fairness of the prenuptial agreement by the circumstances of the parties when the agreement was signed in 1993: “When measured by the 1993 circumstances of the parties, the prenuptial agreement took into account various risks and made reasonable provisions for the wife.”).

“Once the claiming spouse establishes that the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse’s finances at the time the agreement was reached.” Casto, 508 So.2d at 333. The burden then shifts to the defending spouse, who may rebut these presumptions by showing that there was either (a) a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and the income of the parties, or (b) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties. Id.

While the disclosure should be full, fair and open, it need not be minutely detailed or exact. Del Vecchio, 143 So.2d at 21. “The basic issue is concealment, not the absence of disclosure, and the wife may not repudiate if she is not prejudiced by lack of information.” Id.

Here, we affirm the trial court’s determination that the wife failed to establish that the prenuptial agreement was invalid for fraud or misrepresentation under the first part of Casto. Moreover, we conclude that the prenuptial agreement was fair when it was entered into, so the wife’s challenge to the agreement fails under the second part of Casto as well. Therefore, it is unnecessary to reach the question of whether the wife received a full, frank disclosure or whether she had a general and approximate knowledge of both the husband’s assets and income. Although our reasoning is slightly different than that of the trial court, we conclude that the trial court properly upheld the validity of the prenuptial agreement.

Interpretation of Prenuptial Agreement as to Property Distribution

The main issue concerning the interpretation of the prenuptial agreement is whether the wife waived any claim to assets titled solely in the husband’s name at the time of the divorce, even if those assets were acquired during the marriage due to the parties’ marital efforts or appreciated in value during the marriage due to the parties’ marital efforts.

The prenuptial agreement was entered into in 1986 and contains the following provisions:

2. DIANNE’S RELEASE. Except as otherwise provided for herein, in the event either of the Parties hereto institutes legal proceedings for ... dissolution of marriage ..., DIANNE hereby waives and releases, and is hereby barred from any and all rights and claims of every kind, nature and description that she may acquire or to which she may be entitled under the laws of any jurisdiction as a result of the marriage between the Parties, in and to any of HARRY’S property, including, but without intending thereby to limit the generality of the foregoing, any and all right to alimony, either lump sum, rehabilitative, permanent, or otherwise, support and maintenance, equitable distribution, division of property, special equities, attorney’s fees, or any other rights that DIANNE may have against HARRY relative to financial issues.
5. RETENTION OF SOLE PROPERTY. Except to the extent that the parties may otherwise desire, HARRY and DIANNE shall, during their respective lifetimes, keep and retain sole ownership, control, enjoyment and power of disposition with respect to all property, real, personal or mixed, now owned or hereby acquired by each of them respectively, free and clear of any claim by the other ....
9. MUTUAL RELEASE. In consideration of the marriage of the Parties to each other, and in consideration of the other provisions herein contained, each party agrees that neither will ever claim any interest in the other’s property and that the property of every kind, nature and description which either one has on the date of the marriage will remain the respective separate property of each after said marriage, and each agrees not to make any claim against the property of the other ....
17. TITLE PRESUMPTIONS. It is additionally understood that if HARRY purchases, acquires, or otherwise obtains, property and title to said property is in HARRY’s name with DIANNE and no explanation is made as to the percentages of interest that either party has, then it shall be presumed that they shall be 50%-50% owners of said property. If HARRY purchases, acquires, or otherwise obtains, property in his own name, then HARRY shall be the sole owner of same. If DIANNE purchases property in her name, then DIANNE shall be the sole owner of same.

(Emphasis added).

A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by contract law. Heiny v. Heiny, 113 So.3d 897, 900 (Fla. 2d DCA 2013). “Generally, the intentions of the parties to a contract govern its construction and interpretation. When determining intent, the best evidence is the plain language of the contract.” Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993). Contracts are made in legal contemplation of existing, applicable statutes and so it is that marriage contracts and any ante or post-nuptial contracts are entered into subject to then-existing law, including the law of this state. Belcher v. Belcher, 271 So.2d 7, 9 (Fla.1972).

Section 61.075, Florida’s equitable distribution statute, was enacted on October 1, 1988, and applies to all proceedings commenced after its effective date. § 61.075, Fla. Stat. (2007); Laws of Fla. 1988, c. 88-98. Section 61.075(5)(a)2., Florida Statutes (2007), provides that marital assets include the “enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.”

As a preliminary matter, we reject the husband’s argument that the application of section 61.075 to a prenuptial agreement executed before the enactment of that statute would constitute an unconstitutional impairment of a preexisting contract. Section 61.075(5)(a)2., Florida Statutes (2007), was not a change in the law. The Florida Supreme Court has described section 61.075 as largely a codification of existing case law. Robertson v. Robertson, 593 So.2d 491, 493 (Fla.1991). Furthermore, even before the enactment of section 61.075, the case law provided that the “increased value of assets solely owned by one spouse prior to the marriage should be considered marital assets subject to equitable distribution to the extent their increased value was the result of either one or both spouses’ work efforts, or the expenditure of marital funds or earnings of the parties.” Keller v. Keller, 521 So.2d 273, 276 (Fla. 5th DCA 1988) (citing Crapps v. Crapps, 501 So.2d 661 (Fla. 1st DCA 1987); Sanders v. Sanders, 492 So.2d 705 (Fla. 1st DCA 1986)). In any event, if we were to agree with the wife’s argument that the prenuptial agreement in this case is silent on the issue of enhancement value, then the application of section 61.075 would not result in an unconstitutional impairment of any contractual right.

Turning to the proper interpretation of the prenuptial agreement, we must decide whether the provisions of the prenuptial agreement are broad enough to waive the wife’s right to any asset titled in the husband’s name that was acquired or enhanced during the marriage with marital labor or earnings.

This court has recently stated that “[w]here a prenuptial agreement does not address the right to enhanced value of a non-marital asset, that value is subject to equitable distribution.” Weymouth v. Weymouth, 87 So.3d 30, 34 (Fla. 4th DCA 2012). In Weymouth, we held that a prenuptial agreement did not contain a waiver of any right the wife had to the appreciation of value of a house that was the husband’s non-marital asset before the marriage. Id. The prenuptial agreement in that case stated that the wife “specifically waives any and all claim or claims which she might have in and to the real and personal property of [the husband], owned prior to marriage.” Id. at 32. Nonetheless, we found that the agreement did not contain an express waiver of growth or appreciation of pre-marital or non-marital assets. Id.

The Weymouth court cited the Third District’s decision in Valdes v. Valdes, 894 So.2d 264 (Fla. 3d DCA 2004). There, the Third District held that the wife did not waive her right to seek equitable distribution of the enhanced value of non-marital property where the parties’ prenuptial agreement was silent on the issue of enhancement or appreciation of the parties’ non-marital property. Id. at 265-67. The Valdes court found no waiver despite provisions in the prenuptial agreement stating that 1) .the parties would have no interest in or to property acquired prior to the marriage nor make any claim against said property, and 2) assets acquired by parties, wherein ownership or title was not taken jointly or as tenants by entireties, would be presumed to be non-marital assets, and would be considered the separate property of the spouse acquiring same. Id.

Moreover, the Second District has held that if a prenuptial agreement does not specifically designate a spouse’s earnings as separate property, the assets acquired with those earnings will be treated as marital. See Irwin v. Irwin, 857 So.2d 247, 248-49 (Fla. 2d DCA 2003) (“The [prenuptial] agreement did not specifically reserve Mr. Irwin’s marital earnings as his separate property, and thus did not exclude Mrs. Irwin’s claim to share in the value of assets purchased with those earnings. Nor did the agreement waive Mrs. Irwin’s claim to her rightful share of the marital asset consisting of the enhanced value of Mr. Irwin’s separate property that resulted from the contribution of marital funds or labor.”) (citations omitted); Witowski v. Witowski, 758 So.2d 1181, 1185 (Fla. 2d DCA 2000) (“Without a specific provision in the antenuptial agreement that the husband’s salary will be his separate property, it is not a protected asset.”).

The Second District has also held that a simple waiver of appreciation or increase in value waives only passive appreciation, not active appreciation attributable to marital labor and funds. See Worley v. Worley, 855 So.2d 632, 635 (Fla. 2d DCA 2003); see also Doig v. Doig, 787 So.2d 100, 103 (Fla. 2d DCA 2001) (a prenuptial agreement providing that “[n]either party shall make any claim or acquire any interest in the other party’s separate property if it increases in value during the marriage” addressed only passive appreciation of property and did not preclude application of section 61.075).

The case law, however, is not completely consistent in this area. For example, the Fifth District held that a trial court properly relied upon a prenuptial agreement in denying the former wife any equitable distribution of properties owned by the husband prior to the marriage, even though they appreciated in value due to investment of marital labor and income. See Cameron v. Cameron, 591 So.2d 275, 276-77 (Fla. 5th DCA 1991). The prenuptial agreement in Cameron stated that each party “may keep and retain what was his or her own property before marriage.” Id. at 276. The Cameron agreement also stated that it was the wife’s intention to “waive, relinquish and bar her rights of dower and other statutory rights and interests as wife ... of Richard E. Cameron ... to ... property owned by Richard E. Cameron at the present time or to be acquired by him in the future.” Id,. The Fifth District concluded that if the prenuptial agreement “is to effectively shield such properties from Phyllis’ claims, it must also include any appreciation in value.” Id. at 277. The Fifth District, however, affirmed the trial court’s ruling — based on the former wife’s testimony and the ambiguity of the prenuptial agreement — that the prenuptial agreement was intended to shield the husband’s plumbing company but did not encompass marital assets acquired after the parties’ marriage. Id.

Similarly, in Timble v. Timble, 616 So.2d 1188, 1189 (Fla. 4th DCA 1993), we held that the trial court appropriately denied the wife’s claim for enhancement of the value of the husband’s stock in a company, where the prenuptial agreement provided that each party released any claim to the property of the other by reason of the marriage and that the husband “is given full rights ... in all respects the same as he would have if not married to use, enjoy, manage, convey, bequeath, mortgage, grant, sell, invest, reinvest, alienate and dispose of all and every part of any stock or other interest, or security he owns ... or may hereafter acquire in Headco Industries.” Although the Timble opinion is brief and does not expressly describe the nature of the enhancement of value in the Headco stock, certain language of the opinion suggests that the appreciation was not purely passive:

Neither the trial court, nor the parties could have been aware of Watford v. Watford, 605 So.2d 1313 (Fla. 4th DCA 1992), decided after the final judgment and after the parties’ briefs were filed. While that decision would have affected our view of the trial court’s final judgment had there been no antenuptial agreement, the existence of the agreement moots any language of the final judgment which characterizes the passive nature of the enhancement and its exclusion as a marital asset. The still viable language of the final judgment is that governing part thereof based upon the parties’ agreement.

Id.

In Stern v. Stern, 636 So.2d 735, 737-40 (Fla. 4th DCA 1993), we relied upon Cameron and Timble in holding that a husband waived the right to share in any enhancement in value of the wife’s interest in her businesses, because the husband signed a prenuptial agreement stating that he “waives any right to any stock in NRC Electronics, Inc. currently belonging to [the wife] as of this date” and that “[s]ame shall apply to any future subsidiaries of NRC Electronics, Inc.”

Notably, in Witowski, the Second District distinguished both Cameron and Tim-ble. 758 So.2d at 1184. The Witowski court reasoned that the agreement in Cameron “specifically addressed future enhancement” where the wife waived her rights to property “to be acquired by” the husband in the future. Id. The Witowski court also distinguished Timble on the theory that the wife in that case “relinquished any possibility of equitable distribution of marital contributions to the husband’s stock.” Id.

Here, we conclude that under the plain language of the prenuptial agreement, the wife waived and released claims to property or assets owned by the husband at the time of the agreement, or acquired in his own name thereafter, including any enhancement in the value of such property. The language of the agreement was broad enough to waive the wife’s right to any asset titled in the husband’s name that was acquired during the marriage or that appreciated in value due to marital income or efforts during the marriage. Cf. Ledea-Genaro, 963 So.2d at 752 (“Under the plain meaning of the agreement, the wife conveyed her entire interest in the marital home, and there was no need for a separate provision dealing with ‘equity’ in the home.”).

The Witowski court’s theory for distinguishing Cameron and Timble was that the prenuptial agreements in those cases specifically addressed the husband’s future acquisition of property during the marriage. However, the present case is more like Timble than Witowski. In this case, unlike Witowski, the title presumption provision in paragraph 17 of the prenuptial agreement does address property acquired by the husband in the future. We conclude that paragraph 17, when read together with the other provisions of the prenuptial agreement, is sufficient to waive future enhancement of non-marital property, even if it is due to marital earnings or labor. To hold otherwise would read the title presumption provision out of the agreement. If the prenuptial agreement is to effectively shield the husband’s assets from the wife’s claims, it must also include any appreciation in value. Similar to Timble, the trial court appropriately denied the wife’s claim for enhancement value of the husband’s non-marital property.

We distinguish Weymouth because in that case the prenuptial agreement did not address the future acquisition of property. Indeed, in Weymouth, the prenuptial agreement specifically provided that property acquired by either spouse during the marriage (other than property acquired by either of them by gift or inheritance) was marital property. Unlike Weymouth, we conclude that the prenuptial agreement in this case was broad enough to encompass a waiver of enhanced value of non-marital property. We interpret the prenuptial agreement as prohibiting the wife from claiming any right to property titled in the husband’s sole name, including the appreciation of premarital assets and income or assets derived from marital efforts or dollars.

We acknowledge that both the Second District and Third District have construed prenuptial agreements with substantially similar title provisions as being insufficient to waive a spouse’s claim to the enhanced value of the other spouse’s non-marital property that resulted from marital earnings. See Irwin; Valdes. To the extent that this decision is in conflict with Irwin and Valdes, we certify conflict.

Interpretation of Prenuptial Agreement as to Modification

Prenuptial agreements limiting alimony to a certain amount are subject to judicial modification. See Posner v. Posner, 233 So.2d 381, 385-86 (Fla.1970) (“Posner I”) (an antenuptial agreement settling alimony rights is subject to increase or decrease under changed conditions as provided in section 61.14, Florida Statutes, as the parties are assumed to have known of the existence of the statute when they made their agreement); Posner v. Posner, 257 So.2d 530, 534 (Fla.1972) (“Posner II”) (“a change in circumstances of the party since the date of the agreement can be considered by the [cjhancellor in modification of support and alimony provided for in an antenuptial agreement”); Lashkajani v. Lashkajani, 911 So.2d 1154, 1156-57 (Fla.2005) (discussing evolution of law in Posner I & II).

By contrast, a “true property settlement agreement” is not subject to modification. See Shaw v. Shaw, 448 So.2d 631, 632 (Fla. 4th DCA 1984) (citing Salomon v. Salomon, 196 So.2d 111 (Fla.1967)).

Furthermore, at least in the context of marital settlement agreements, the law is clear that parties may waive their statutory right to seek modification of alimony provisions in a settlement agreement if the language in the agreement clearly and unambiguously expresses waiver or if the interpretation of the agreement as a whole can lead to no other conclusion but waiver. Tapp v. Tapp, 887 So.2d 442, 444 (Fla. 2d DCA 2004).

Here, the trial court erred in finding that the wife waived the right to petition for a modification of alimony. The trial court construed the prenuptial agreement to constitute a “blend” of property distribution and alimony. Notably, the prenuptial agreement provided that the alimony payments would cease upon the wife’s death or remarriage. Thus, the prenuptial agreement clearly contained an alimony component and was not a “true property settlement.” See Woodworth v. Woodworth, 385 So.2d 1024, 1026 (Fla. 4th DCA 1980) (provision in prenuptial agreement was not true property settlement where it stated that payments were to terminate on death of wife or on wife’s remarriage).

The prenuptial agreement was silent on modification of alimony. The general waiver of alimony “except as otherwise provided” in the agreement was not specific enough to waive the wife’s right to seek judicial modification of the alimony provided for in the agreement. Alimony was “otherwise provided” in the prenuptial agreement, and the provisions regarding alimony did not specifically waive the right to modification. Furthermore, the integration clause in the prenuptial agreement cannot reasonably be construed as prohibiting judicial modification of the alimony obligation. We reverse the trial court’s ruling that the prenuptial agreement precluded the wife from seeking modification of alimony.

Miscellaneous Issues

We find no abuse of discretion as to the child support award. Furthermore, in light of our interpretation of the prenuptial agreement, the trial court did not abuse its discretion in limiting the scope of discovery.

Any other issue not specifically addressed in this opinion is either without merit or moot.

Conclusion

In sum, we affirm on the issue of the validity of the prenuptial agreement. As to the trial court’s interpretation of the agreement, we reverse only the trial court’s ruling that the wife waived the right to seek modification of alimony.

We affirm the trial court’s conclusion that the wife waived any claim to assets titled solely in the husband’s name at the time of the divorce, even if those assets were acquired during the marriage due to the parties’ marital efforts or appreciated in value during the marriage due to the parties’ marital efforts. We certify conflict with the Second and Third Districts. Furthermore, because this issue is one that is likely to recur and has a significant impact on citizens who have entered into prenuptial agreements, we certify the following question to our supreme court as one of great public importance:

Where a prenuptial agreement provides that neither spouse will ever claim any interest in the other’s property, states that each spouse shall be the sole owner of property purchased or acquired in his or her name, and contains language purporting to waive and release all rights and claims that a spouse may be entitled to as a result of the marriage, do such provisions serve to waive a spouse’s right to any share of assets titled in the other spouse’s name, even if those assets were acquired during the marriage due to the parties’ marital efforts or appreciated in value during the marriage due to the parties’ marital efforts?

Affirmed in part, Reversed in part; Conflict certified; Question certified.

CONNER and KLINGENSMITH, JJ., concur.

      . The husband also raises an issue on cross-appeal concerning a credit for overpayment of temporary attorney’s fees, but we find that issue to be moot in light of our disposition in case number 4D11-2717.

      . The prenuptial agreement contained convoluted provisions governing how much money the wife would receive in the event of a divorce. Based on the length of the marriage, which lasted over twenty years, the wife was entitled to receive about $1.9 million paid out over seven years.

      . The 2007 statute was still in effect when the husband filed for divorce in February 2008.

      . In Weymouth, we distinguished our earlier opinion in Ledea-Genaro v. Genaro, 963 So.2d 749 (Fla. 4th DCA 2007), where we held that the wife waived her right to any share in the equity in the marital home where the prenuptial agreement unambiguously required her to quitclaim her entire interest in the home to the husband in the event that a petition for dissolution was filed.

      . This court has previously cited Valdes for the general proposition that the enhanced value of a non-marital asset is subject to equitable distribution where a prenuptial agreement does not address the right to enhanced value. See Weymouth, 87 So.3d at 34-35. However, the Weymouth court did not actually address whether a title provision similar to the one in Valdes was broad enough to address the issue of enhancement or appreciation of the husband’s non-marital property.


author: MAY, J.

text:
    John VIOLA, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, et al., Appellee.
    No. 4D11-2719.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Enrique Nieves III of King, Nieves & Zacks, PLLC, West Palm Beach, for appellant.
    Morgan L. Weinstein of Van Ness Law Firm, PLC, Deerfield Beach, for appellee.
   MAY, J.

This case is about time and compliance with the Florida Rules of Civil Procedure. A homeowner appeals a final summary judgment of foreclosure. He raises numerous issues, among which is that the trial court erred in entering a final summary judgment when the evidence relied on by the bank was served fewer than twenty days before the hearing. We agree and reverse.

In 2008, the bank filed a two-count complaint, seeking to (1) re-establish a lost note and (2) foreclose on the mortgage. The complaint alleged that the bank owned and held the note and mortgage, and that an assignment had been, or would be, recorded in the public record.

The bank alleged that a “substantial copy of the note” was attached. However, only an uncertified, unsigned copy of the first twelve pages of the mortgage was attached to the complaint. No note was attached.

On February 12, 2009, the bank moved for final summary judgment on both counts. In support, the bank filed an affidavit of indebtedness and an affidavit of the lost note. The loan servicer attested to the amount of the debt. The servicer also attested that the original note was lost or had been destroyed, and the bank “was in possession of the subject note and was entitled to enforce it when loss of possession occurred.” The servicer then attested that “a true, correct, and substantial copy of the lost or destroyed Note” was attached to the complaint even though no note had been attached. The servicer did not attest that the bank owned the note when the complaint was filed.

The homeowner filed a response, asserting that the mortgage attached to the complaint showed ownership in the original note owner, not the bank, and it did not show that the bank had acquired the note and mortgage from the original note owner. He argued that the discrepancy between the note and mortgage and the complaint was material, and negated the bank’s claim. Because it did not appear that the bank was the holder and owner of the note and mortgage before the complaint was filed, the bank lacked standing.

Two years later, on April 28, 2011, the bank filed an amended affidavit in support of its motion for summary judgment. The servicer’s representative again attested to the amount owed, but not the bank’s ownership of the note and mortgage prior to the filing of the complaint. The bank filed copies of the original note and mortgage on June 9, 2011 — twelve days before the scheduled hearing.

The bank also filed a copy of an allonge, which included one endorsement from the original note owner to Aegis Mortgage Corporation, and a second endorsement in blank from Aegis. Both endorsements were undated.

The court held a hearing on June 21, 2011. The bank filed the original note and mortgage that day. The court entered a final summary judgment of foreclosure, from which the homeowner now appeals.

The homeowner argues that the bank failed to comply with rules 1.510(c) and (e) of the Florida Rules of Civil Procedure by serving unauthenticated copies of the note and mortgage only twelve days before the hearing, and by failing to attach copies of the note and mortgage to its amended affidavit of indebtedness.

The bank responds that the loan documents were timely filed and were self-authenticating. According to the bank, it was unnecessary to attach copies of the note and mortgage to the amended affidavit of indebtedness because they had already been filed, even if they had not been attached to the complaint. Finally, the bank argues that the homeowner failed to timely object and further failed to provide a transcript of the hearing.

The issue is a simple one. Rules 1.510(c) and (e) of the Florida Rules of Civil Procedure provide that a motion for summary judgment, along with any “summary judgment evidence” “on which the movant relies,” must be served at least twenty days before the hearing, and the documents supporting the affidavits must be authenticated. Here, on June 9, 2011, more than two years after filing the motion for summary judgment and only twelve days before the scheduled hearing on that motion, the bank filed copies of the original note and mortgage.

This case is akin to Verizzo v. Bank of New York, 28 So.3d 976 (Fla. 2d DCA 2010). There, the bank filed a two-count complaint against the homeowner to reestablish a lost note and foreclose a mortgage. Id. at 977. The bank failed to attach either a copy of the promissory note or an assignment to the complaint. Id. Before the time expired for a responsive pleading, the bank moved for summary judgment. Id.

The bank then served the original note, the mortgage, and an assignment of the mortgage fewer than twenty days before the scheduled hearing on the bank’s motion for summary judgment. Id. The trial court entered summary judgment. Id. The late service and filing of the documents constituted procedural error requiring reversal. Id. at 978.

Similarly, the bank here failed to serve its summary judgment evidence at least twenty days before the hearing on its motion for summary judgment. The trial court erred in entering summary judgment. Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1108 (Fla. 4th DCA 2010).

Reversed and Remanded.

WARNER and FORST, JJ., concur.

      . Our opinion should not be construed as any comment for or against the merit of the homeowner's other issues.


text:
    Dianne L. HAHAMOVITCH n/k/a Dianne Lynn, Appellant, v. Harry H. HAHAMOVITCH, Appellee.
    No. 4D11-3369.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for appellant.
    Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The wife appeals an Amended Global Final Order on Remaining Issues, which primarily addressed issues pertaining to attorney’s fees, professional fees, and costs. In relevant part, the order: 1) awarded the wife $846,218.52 in attorney’s fees and costs from November 1, 2009, through the entry of the Amended Final Judgment of Dissolution on July 28, 2010; 2) awarded the husband $34,500 in fees and costs based on the wife’s denial of certain requests for admissions; and 3) awarded the husband $22,500 in fees and costs under Rosen on the ground that the wife had engaged in vexatious litigation. We reverse the award of fees and costs in favor of the husband pertaining to the wife’s denial of the requests for admission, but affirm as to all other issues raised by the wife.

Denial of “Fees for Fees

On appeal, the wife first argues that the trial court erred as a matter of law in declining to award the wife the fees she incurred after the dissolution judgment for litigating pre-dissolution temporary fee amounts. We disagree, concluding that the fee waiver in the prenuptial agreement precludes the wife from receiving a fee award for services rendered after the entry of the dissolution judgment.

The standard of review of a fee award in a dissolution proceeding is abuse of discretion. Phillips v. Ford, 68 So.3d 257, 258 (Fla. 4th DCA 2010). However, to the extent that a trial court’s order on fees is based on its interpretation of the law, the standard of review is de novo. Ferere v. Shure, 65 So.3d 1141, 1144 (Fla. 4th DCA 2011).

“[A]n agreement of the parties that waives or limits the right to request temporary support and attorney’s fees to a spouse in need in a pending dissolution action is a violation of public policy.” Khan v. Khan, 79 So.3d 99, 100 (Fla. 4th DCA 2012). This rule is derived from Belcher v. Belcher, 271 So.2d 7, 11 (Fla.1972), in which the Florida Supreme Court held that “[u]ntil there is a decree of dissolution of the marriage, thus ending her role as wife, the wife’s support remains within long-established guidelines of support by the husband which cannot be conclusively supplanted by his advance summary disposition by agreement.” Thus, “[i]n the temporary setting prior to dissolution, section 61.16’s need and ability to pay test continues to apply.” See Lord v. Lord, 993 So.2d 562, 565 (Fla. 4th DCA 2008).

As long as the claim and award for temporary attorney’s fees “are limited to services rendered pnor to the entry of judgment, the award can be made at the time of final hearing or in an appropriate postjudgment proceeding.” Lawhon v. Lawhon, 583 So.2d 776, 777 (Fla. 2d DCA 1991) (emphasis added). “The evolution in our law, therefore, has been toward greater freedom of contract regarding post-dissolution spousal support, while recognizing the continuing obligations of support before the marriage is dissolved.” Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla.2005).

Here, the prenuptial agreement provided that the parties would bear their own attorney’s fees. This provision was ineffective as to temporary fees incurred for services rendered prior to the entry of the Amended Final Judgment. However, once the trial court entered the Amended Final Judgment and dissolved the marital relationship, the appellant’s role as the appellee’s wife ended and there is no longer a legal basis for declining to enforce the contractual waiver of fees. Accordingly, the trial court properly refused to award litigation fees that all occurred after the entry of the Amended Final Judgment.

This court’s decision in Schneider v. Schneider, 32 So.3d 151 (Fla. 4th DCA 2010), does not change this result. In Schneider, we held that “awarding fees for fee litigation in a marital dissolution case falls within the discretion of the trial court.” Id. at 153. However, Schneider was based on section 61.16 and did not involve a prenuptial agreement with a fee waiver. The Schneider case does not change the rule that the contractual fee waiver is unenforceable only as to services rendered prior to the entry of a dissolution judgment. In this case, once the Amended Final Judgment was entered, the husband ho longer had an obligation to support the wife and there was no longer a public policy reason to refuse to enforce the contractual waiver of fees. Thus, because there was a contractual waiver of fees in the prenuptial agreement, we decline to apply Schneider to allow for the recovery of fees that were incurred post-judgment litigating the amount of fees. We affirm the trial court as to this issue.

The Award of Fees and Costs to the Husband under Rule 1.380(c)

We must, however, reverse the awards of fees and costs in favor of the husband pertaining to the wife’s denial of the requests for admission.

A trial court’s decision on whether to award fees and costs based upon a party’s failure to admit the truth of a request for admission is reviewed for an abuse of discretion. Stokes v. Clark, 390 So.2d 489, 491 (Fla. 1st DCA 1980). Here, we conclude that awarding the husband $34,500 in fees and costs for the litigation over the wife’s denial of requests for admission was an abuse of discretion.

Florida Rule of Civil Procedure 1.380(c) provides that if a party fails to admit the truth of any request for admissions and if the party requesting the admissions thereafter proves the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys’ fees. Upon motion by the requesting party, the court shall issue such an order at the time a party requesting the admissions proves the truth of the matter, unless it finds that (1) the request was held objectionable, (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit. Fla. R. Civ. P. 1.380(c).

However, under the rule, “expenses incurred by a successful litigant as a result of the opposing party’s failure to admit requests for admissions may not be assessed against the opposing party for denying a request to admit a hotly-contested, central issue to the case.” Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So.2d 1107, 1113 (Fla. 3d DCA 2000). If the result were otherwise, then “where a party denies a request to admit a fact which is the central issue of fact in the case, prevailing party attorney’s fees would become the rule, rather than the exception.” Shaw v. State ex rel. Butterworth, 616 So.2d 1094, 1096 (Fla. 4th DCA 1993) (affirming trial court’s denial of attorney’s fees after a trial in which the defendants prevailed after the plaintiff denied a request for admission on the central issue in the case). However, entitlement to fees under rule 1.380(c) has been affirmed where the requesting party presented uncontroverted evidence establishing the truth of the requests for admissions. See Tripp Const., Inc. v. Verde, 789 So.2d 1171, 1172 (Fla. 3d DCA 2001).

Without delving into the minutiae of the discovery requests, we conclude that the requests for admission pertained to contested matters that were central issues in the case. Therefore, we reverse the award of fees and costs pertaining to the wife’s denial of the requests for admission.

Award of Fees to the Husband for the Wife’s Bad Faith Conduct

Under Rosen v. Rosen, 696 So.2d 697 (Fla.1997), a trial court has broad discretion to award attorney’s fees in family law cases and the primary factor the trial court considers in awarding fees under section 61.16, Florida Statutes, is the financial resources of the parties. “However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.” Id. at 700. “Moreover, in situations where a court finds that an action is frivolous or spurious or was brought primarily to harass the adverse party, we find that the trial court has the discretion to deny a request for attorney’s fees to the party bringing the suit.” Id. at 701.

In Hallac v. Hallac, 88 So.3d 253, 259 (Fla. 4th DCA 2012), we held that where a spouse who has no “need” of fees seeks them from the spouse who has a lesser “ability” to pay, the primary criteria of the statute are not present and Rosen cannot be applied to award attorney’s fees in favor of the spouse with the greater financial ability to pay. In other words, “where the party against whom an assessment is sought does not have the ability to pay, it is error to assess fees against that party, even though he or she may have, engaged in meritless litigation.” Id. at 258. We also explained that the case did not present the type of inequitable conduct or vexatious litigation that would authorize a fee award under the court’s inherent authority. Id. at 260-61.

Here, the trial court awarded the husband fees “due to the unnecessary time spent in this case concerning certain issues maintained by the Former Wife surrounding the execution of the parties[’] 1986 prenuptial agreement.” The trial court concluded that some of the "wife’s allegations were untrue and led to unnecessary litigation. For example, the court found that the wife falsely alleged that the prenuptial agreement was thrusted upon her with short notice, that she was an emotional wreck when the agreement was entered into, and that she did not review the agreement with her lawyer. The trial court specifically found that the “Wife’s false assertions led to unnecessary litigation that was based in fraud and mistruth and was clearly a Rosen fee violation.” (Formatting altered).

To be sure, Rosen cannot be applied to allow an award of attorney’s fees in favor of a spouse with the greater financial ability to pay. Id. at 259. Nevertheless, the trial court’s reference to Rosen was at most harmless error, because the court had the inherent authority to sanction the wife for her vexatious conduct. Under the inequitable conduct doctrine, the trial court may award attorney’s fees as a sanction where one party has exhibited egregious conduct or acted in bad faith. See Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla.1998); Sumlar v. Sumlar, 827 So.2d 1079, 1084 (Fla. 1st DCA 2002). When a court uses its inherent authority to assess attorney’s fees, the court must make an express finding of bad faith and include facts justifying the imposition of the award. Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002).

In this case, the trial court’s award of attorney’s fees was based upon an express finding of bad faith conduct and was supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incur-rence of attorney’s fees. The court’s findings were supported by the record, and the fee award was limited to fees that were unnecessarily incurred due to the wife’s untrue allegations. We therefore decline to disturb the trial court’s assessment of $22,500 in fees and costs against the wife as a sanction for her vexatious conduct.

Conclusion

We reverse the award of fees and costs in favor of the husband pertaining to the wife’s denial of the requests for admission, but we find no reversible error or abuse of discretion with respect to any other issue raised by the wife.

TAYLOR, CONNER and KLINGENSMITH, JJ., concur.

      . The appeal of the Amended Final Judgment of dissolution is addressed in case number 4D10-3051.

      . We note that even where an appellate court reverses a final judgment of dissolution, the judgment is still final insofar as the marital status of the parties is concerned. Cf. Galbut v. Garfinkl, 340 So.2d 470, 473 (Fla.1976) ("We find that the partial judgment of dissolution is final insofar as the marital status of the parties is concerned although it must be reversed on grounds hereinabove stated.”).


text:
    Winston G. CALDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4237.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Winston Calder appeals his conviction of first degree murder, arguing that the trial court erred in denying his motion to suppress the statements he made to police during a videotaped interrogation after he had invoked his right to counsel. Because the police failed to scrupulously honor Calder’s invocation of his rights, and because the totality of the circumstances shows that Calder’s reinitiation of the interrogation was nothing more than the product of improper police conduct, we reverse the denial of his motion to suppress and remand for a new trial.

On January 20, 2008, during an argument in which his girlfriend, Georgia Lee, tried to remove him from their apartment, Calder shot and killed Lee. Police arrested Calder the following day. After asking Calder some preliminary questions about his background, Detective Sessions advised Calder of his Miranda rights. When the detective asked Calder if he understood the rights he read to him, the following exchange occurred:

Calder: I would prefer a lawyer.
Detective: You would prefer to have a lawyer?
Calder: Yeah.
Detective: Okay. You have a lawyer?
Calder: I can’t afford a lawyer, number four.
Detective: Four says if you cannot afford a lawyer one will be appointed to represent you, in other words, at no cost to you.
Calder: Yeah. When can I get that done?
Detective: When can you get that done?
Calder: Four, present a lawyer. You know, I want to know about those two, number three and number four.
Detective: Number three just simply means at any point in time during the interview if you wanted to have a lawyer present you would be allowed to have that. And number four means if you can’t afford one, one will be appointed to represent you at no cost to yourself. In other words, it would be free of charge. If you couldn’t afford it, that’s what that basically means.
Now, the only thing is at that point in time I’m not gonna be able to get your side of the story and I’m not gonna be able to present your side of the story to the State Attorney’s office.
Detective: Are you willing to give your side of the story without a lawyer present, yes or no?
Calder: No, I want to feel the comfortable level.
Detective: In other words, you want to tell your side of the story, however you will feel more comfortable having a lawyer present regardless of what happened?
Calder: Yes.
Detective: So you saying you want to have a lawyer present? I can’t talk to you anymore, do you understand that?
Calder: Yeah.
Detective: Let me ask you this, would you feel more comfortable if the conversation we had was tape recorded ... ?
Calder: Well a lawyer present to me—
Detective: ... But the thing is I can’t tape record a conversation with you without you first of all agreeing to speak to me without a lawyer being present. Do you understand?
Calder: I feel comfortable going to a lawyer.
Detective: You feel better having a lawyer?
Calder: Yeah.
Detective: Not a problem we can certainly do that. Okay, that is not a problem at all.
Calder: I feel more comfortable like that.

The detective told Calder that it was his legal right to have an attorney, but before leaving him alone in the interrogation room, the detective said to Calder:

[I]f you do change your mind and you do want to talk to me about your side of the story, okay, what I need you to do is — knock on the door but knock kind of loud, just knock on it kind of loud, I’ll come back in and then if you say you know what, Detective Sessions, I really, it really would make me feel better if I got the opportunity to give my side of the story, talk about what happened on Saturday, I know what happened, okay? I know that it’s very difficult for you and it’s going to be tough for you to sleep because the bottom line is you been through a tough situation and nobody wants to be in your shoes, obviously, but at the same time one of the things that makes somebody feel a lot better is if they get the opportunity to get things off of their chest, it kind of clears their mind, it clears their conscious [sic] and it makes them feel better, you know.

While Calder was alone in the interrogation room, he cried for several minutes. Less than ten minutes after the detective left Calder alone in the room, Calder opened the door and asked to speak to the detective. The detective returned and, after he administered Miranda warnings, Calder signed a waiver. Soon thereafter, Calder confessed to firing the fatal shot that killed Lee. He claimed that the shooting was accidental.

The trial court held a hearing on Calder’s motion to suppress his statements. The court found that Calder unequivocally invoked his right to counsel when he told Detective Sessions that he would feel more comfortable with a lawyer. The court further found that the detective ceased interrogating Calder after he invoked his right to counsel, and that Calder initiated further conversation with the detective. After considering the totality of circumstances surrounding the interrogation, the trial court found that Calder’s decision to waive his right to counsel and give a statement to the detective was made knowingly, intelligently, and voluntarily. Based on those findings and conclusions of law, the trial court denied Calder’s motion to suppress his statements.

Calder argues that the police obtained his confession in violation of his Miranda rights. He acknowledges that he initiated further discussions with the police after invoking his right to counsel, but contends that his subsequent waiver was not knowingly and voluntarily made. Instead, he contends that the waiver was the product of the detective’s failure to scrupulously honor his right to counsel and to remain silent after he invoked his rights. He argues that the detective’s persistent attempts to persuade him to “tell his side of the story” amounted to improper interrogation that vitiated the voluntariness of his subsequent waiver.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Jackson v. State, 18 So.3d 1016, 1027 (Fla.2009); State v. Triplett, 82 So.3d 860, 863 (Fla. 4th DCA 2011). Although an appellate court will defer to the trial court’s findings of fact if they are supported by competent, substantial evidence, the appellate court will review de novo the trial court’s application of the law to the facts; it will independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fifth Amendment. Cuervo v. State, 967 So.2d 155, 160 (Fla.2007); State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001); Pierre v. State, 22 So.3d 759, 765 (Fla. 4th DCA 2009).

Both the Fifth Amendment to the United States Constitution and Article I, section 9 of the Florida Constitution “provide that persons shall not be ‘compelled’ to be witnesses against themselves in any criminal matter.” Moss v. State, 60 So.3d 540, 542 (Fla. 4th DCA 2011) (quoting Ross v. State, 45 So.3d 403, 412 (Fla.2010)). “To give effect to the Fifth Amendment right against self-incrimination, an accused person has the right to have counsel present during a custodial interrogation, and police must clearly advise the accused of that right.” Id. (citing Miranda v. Arizona, 384 U.S. 436, 467-72, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

“Under the well-settled principles of Miranda, once a suspect unequivocally invokes the right to counsel, all interrogation must cease.” McKenzie v. State, 125 So.3d 906, 38 Fla. L. Weekly D898, 2013 WL 1748624 (Fla. 4th DCA Apr.24, 2013) (citing Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602). The suspect “ ‘is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’ ” Moss, 60 So.3d at 542-43 (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Black v. State, 59 So.3d 340, 345 (Fla. 4th DCA 2011).

When an accused invokes his right to counsel, “ ‘... courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.’ ” Moss, 60 So.3d at 544 (quoting Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984)); see also Sapp v. State, 690 So.2d 581, 584 (Fla.1997) (“[O]nce an individual has invoked the Miranda right to counsel, a valid waiver of this right can be found only if the individual is the one responsible for reinitiating contact with the police.”); Black, 59 So.3d at 346.

Contrary to the state’s argument that Calder’s invocation of his right to counsel was equivocal, the trial court correctly determined that Calder’s statement to the detective that he would “feel comfortable going to a lawyer” was an unequivocal invocation of his right to counsel. Moreover, the record shows that Calder made several statements during the interview that clearly invoked his right to counsel. As we commented in Moss, “it is hard to imagine more unequivocal statements.” 60 So.3d at 543.

The record reveals that after Calder made his unequivocal request for counsel, the detective did not cease questioning him. Instead, he continued talking to Calder in an effort to coax him into speaking without counsel. The detective kept reminding Calder that this was his opportunity to present his side of the story and that doing so would benefit him. He further suggested that Calder might feel more comfortable telling his side of the story if he recorded the statement. He told Calder, however, that the only way he could record the interview was if Calder agreed to speak without a lawyer. The detective also told Calder that he would feel better and be able to sleep better at night if he got some things off his conscience.

These statements constituted interrogation because the detective should have known that they were “reasonably likely to elicit an incriminating response.” Innis, 446 U.S. at 301, 100 S.Ct. 1682; see also Cuervo, 967 So.2d at 164 (remarks by police to defendant that he still had an opportunity to tell “his side of the story” amounted to interrogation because the officers could reasonably anticipate they would elicit an incriminating response); Black, 59 So.3d at 346 (detective was in violation of Miranda by continuing to ask defendant whether he wanted to talk to him about the crimes after the defendant had clearly invoked his right to counsel); Gilbert v. State, 104 So.3d 1123, 1125 (Fla. 4th DCA 2012) (stating that “almost immediately after [the defendant] invoked his right to counsel, the detectives engaged in interrogation by telling the defendant that they were trying to ‘protect’ him and encouraging him to tell his ‘side of the story’ ”). Based on similar statements the detective made in this case, we conclude that the detective did not cease questioning and thus failed to scrupulously honor Calder’s invocation of his right to counsel.

Relying on Serrano v. State, 15 So.3d 629 (Fla. 1st DCA 2009), the state argues that even if Calder did make an unequivocal request for counsel, the detective’s statements to Calder did not constitute interrogation within the meaning of Innis, because they were intended only to clarify Calder’s wishes and understanding of his rights before ending the session. However, as the state acknowledges, this view is contrary to our position in Black that Serrano contravenes Miranda’s holding that the police must cease questioning altogether when a defendant makes an unequivocal request for counsel during a custodial interrogation. See Black, 59 So.3d at 346 n. 6; see also Green v. State, 69 So.3d 351, 354 (Fla. 2d DCA 2011) (noting our court’s disagreement with Serrano ). When, as in this case, an officer persists in asking a suspect whether he wishes to give his “side of the story” after the suspect has unequivocally invoked his rights, the officer is not asking harmless clarifying questions; he is violating the suspect’s rights under Miranda. See Cuervo, 967 So.2d at 165.

In any event, it is undisputed in this case that Calder himself initiated communication with the detective after having invoked his right to counsel. Several minutes after the detective left Calder alone in the interrogation room, Calder opened the door and requested to speak with the detective. The question therefore becomes whether, under the totality of the circumstances, Calder’s confession during the second interrogation was voluntary.

Calder argues that the detective’s continued interrogation of him, despite his invocation of the right to counsel, rendered his later confession inadmissible, notwithstanding the fact that he reinitiated contact with the detective. He contends that his decision to resume dialogue with the detective was a product of the detective’s refusal to scrupulously honor his right to counsel by repeatedly urging him to tell his “side of the story.”

The issue before us therefore lies at the intersection of two general constitutional principles. On the one hand, a suspect’s request to cut off questioning until counsel can be obtained must be “scrupulously honored” and all questioning must cease. Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602; Gilbert, 104 So.3d at 1125. On the other hand, “if the accused initiates further conversation, is reminded of his rights, and knowingly and voluntarily waives those rights, any incriminating statements made during this conversation may be properly admitted.” Welch v. State, 992 So.2d 206, 214 (Fla.2008).

In State v. Hunt, 14 So.3d 1035 (Fla. 2d DCA 2009), the Second District set forth a two-step analysis where a suspect makes statements to the police after invoking his rights:

Where, as here, a suspect has made statements to the police after invoking his right to remain silent, the correct approach to determining whether the police have scrupulously honored the suspect’s right to remain silent may require a two-step analysis. In the first step, courts must decide whether the police continued to interrogate the suspect despite his or her invocation of the right to remain silent. If the police continued the interrogation, then they failed to scrupulously honor the right to remain silent and the resulting statements are inadmissible. Under these circumstances, the court need not proceed to the second step.
On the other hand, if the interrogation ceased, the court must proceed to the second step of the analysis. In the second step, the court must determine who reinitiated the dialogue. The answer to this question determines what factors the court must examine in resolving the issue.
[W]here it was the suspect who reini-tiated the dialogue with the authorities, the inquiry is different. Under these circumstances, the courts consider whether the suspect’s decision to change his or her mind and to waive his or her rights by speaking with the authorities was voluntary, knowing, and intelligent.

Id. at 1038-39 (emphasis added). The Hunt opinion, however, does not directly address a situation where the defendant reinitiated dialogue with the police after an earlier interrogation in which the police did not immediately cease questioning when the defendant invoked his rights.

On this issue, we find the Ninth Circuit’s decision in Collazo v. Estelle, 940 F.2d 411 (9th Cir.1991), to provide useful guidance. There, the Ninth Circuit held that the defendant’s confession was involuntary where the defendant asked to talk to a lawyer, the police responded by telling the defendant it “might be worse” for him if he talked to an attorney, and three hours later the defendant “changed his mind” and talked to the police. According to the Ninth Circuit, the substance of the entire transaction demonstrated that the defendant could not be said to “initiate” further conversation with the police as that term is used in Edwards, and that the defendant’s actions in requesting the officers were nothing less than the delayed product of coercive police conduct. Id. at 420, 423.

In a concurring opinion, Judge Kozinski advocated for a bright-line rule where the police badger a suspect after the right to counsel has been invoked:

[T]he police forfeit the benefit of the Edwards exception once they use the type of pressure tactics demonstrated in this record. Because Edwards is designed to prevent police from badgering suspects into giving up their right to counsel, the narrow exception to Edwards cannot apply in a case where the police actually engaged in badgering. If police want to keep the Edwards escape hatch open, they must cease their interrogation as soon as the suspect asserts his right to counsel, and then hope he changes his mind on his own.

Id. at 427 (Kozinski, J., concurring).

Here, we need not decide whether we would adopt the rule suggested by Judge Kozinski. For resolving the present case, it is enough to say that the substance of the entire transaction confirmed that Calder did not voluntarily initiate the further conversation with police, and that his action in requesting the detective was merely the delayed product of the coercive police conduct. See Collazo, 940 F.2d at 419-24; see also State v. Brown, 592 So.2d 308, 308-09 (Fla. 3d DCA 1991) (holding that the officer’s statements after the defendant invoked his rights were likely to elicit incriminating responses and that the defendant’s confession was not freely and voluntarily made, despite the fact that the defendant reinitiated the conversation); but compare Craig v. State, 599 So.2d 170, 170-71 & n. 2 (Fla. 3d DCA 1992) (even though the police continued questioning the defendant after what was at least an equivocal invocation of the right to counsel, the defendant’s subsequent reinitiation of the interrogation two hours later cured any earlier Fifth Amendment defect where the defendant, who was awaiting transportation to the jail, overheard his co-defendant “throw him in” to the police, the defendant decided for his own best interests to confess his involvement, the police were “totally surprised” by the confession, and there was no indication that the confession arose out of a deliberate stratagem or any form of improper interrogation by the police).

We have considered Stein v. State, 632 So.2d 1361, 1364 (Fla.1994), but find it to be distinguishable. There, Stein was a suspect in a double murder. During an interrogation, Stein asked to speak to an attorney and the questioning was terminated. However, before leaving the room, one of the investigators told Stein that God would forgive him for what he had done. The investigators then left Stein alone in the interview room. Several minutes later, but before Stein had seen an attorney, Stein initiated contact with the investigators by knocking on the door and stating, “I want to talk about part of it.” Id. at 1364. On appeal, the Florida Supreme Court held that the trial court properly denied the motion to suppress the confession, because Stein voluntarily initiated continued communication with the investigators. Id. Although the court noted that the investigator’s comments regarding God were not appropriate, the court emphasized that, at the suppression hearing, Stein himself admitted that the brief conversation about God had no effect on his decision to talk to the investigators. Id. Therefore, in Stein, it was apparent from the record that the officer’s comment did not induce Stein’s reinitiation of the communication.

By contrast, in this case, it cannot be seriously questioned that the officer’s improper comments, after Calder invoked his right to counsel, were designed to induce him to reinitiate the communication without a lawyer. This ploy was successful, bringing Calder to tears and prompting him to ask to speak to the detective only a few minutes after the first interrogation had ended. Although an appellate court must defer to the factual findings surrounding the interrogation, it is not required to defer to the trial court’s conclusions regarding voluntariness. This is a question of law subject to de novo review. Brancaccio v. State, 773 So.2d 582, 583 (Fla. 4th DCA 2000). Here, the totality of the circumstances shows that Calder’s reinitiation of the interrogation and waiver of his previously invoked right to counsel were not voluntary, but instead, the product of improper police conduct.

Based on the foregoing, we find that the trial court erred in denying Calder’s motion to suppress his confession. Because we cannot consider this error to be harmless, we reverse for a new trial.

Reversed and Remanded.

DAMOORGIAN, C.J., and KLINGENSMITH, J„ concur.

      . We do not address Calder's argument that the detective minimized his Miranda rights by referring to the form as a "permission slip,” i.e., a paper that would authorize the defendant to speak to him.


author: GERBER, J.

text:
    Trevor C. HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1502.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.
    Rehearing Denied March 4, 2014.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant, who used a worthless check to buy music recording equipment from the seller, argues that the trial court erred in denying his motion for judgment of acquittal on the charges of grand theft of property valued at $100,000 or more and obtaining property in return for a worthless check. On the grand theft charge, the defendant argues the state: (1) failed to prove that he obtained the seller’s equipment with an intent to either permanently or temporarily deprive the seller of the equipment; and (2) failed to rebut his reasonable hypothesis of innocence that his failure to fully pay for the equipment amounted to no more than a civil breach of contract. We disagree with the defendant’s arguments on the grand theft charge and write to discuss our affirmance of that conviction. We affirm without further discussion the defendant’s conviction for obtaining property in return for a worthless check.

At trial, the state presented the following evidence. The seller placed an advertisement to sell various pieces of music recording equipment and the seller’s lease interest in a recording studio which housed the equipment. The defendant responded to the advertisement. The defendant told the seller that he was a record producer who recently moved to the area and was looking for a studio near his home. He said that he already' owned a recording console worth half-a-million dollars and needed to house it in a studio. Based on those representations, the seller developed confidence in the defendant’s ability to purchase the equipment and the lease.

Soon after, the seller and the defendant executed an asset purchase agreement in which the defendant agreed to purchase the seller’s equipment for $125,000. Attached to the agreement was a list of the equipment being purchased and their assigned values. Upon execution of the agreement, the defendant paid a $12,500 deposit to the seller by cashier’s check. The deposit payment allowed the defendant to have unlimited access to the seller’s recording studio and equipment. The defendant was to pay the remaining $112,500 balance to the seller by cashier’s check or other certified check at a scheduled closing, at which time the defendant would take over the seller’s lease of the studio. If the transaction did not close due to the buyer’s action, then the seller would keep the deposit as liquidated damages and not as a penalty.

At the scheduled closing, the defendant gave the seller a personal check for the $112,500 balance. The defendant told the seller that he did not have time to go to the bank to obtain a cashier’s check. The seller took the defendant at his word and accepted the personal check. The seller took the defendant to the studio’s leasing office. The lease was transferred from the seller to the defendant, and the defendant paid two months’ rent totaling $17,000.

The following day, the seller deposited the defendant’s personal check. The seller’s bank returned the check because the defendant’s account contained insufficient funds. The seller contacted the defendant. The defendant said “there was a mess-up at the bank, a wire must have gotten crossed somewhere; there was money that should have been there that wasn’t there.” The seller believed that the defendant’s excuse sounded reasonable. The seller and the defendant agreed to meet for a second closing ten days later.

At the second closing, the defendant arrived three hours late. He gave the seller another personal check for $112,500. He again told the seller that he did not have time to go to the bank to obtain a cashier’s check. He said that the money was in his account. The seller again accepted the defendant’s personal check.

Four days later, the seller deposited the defendant’s personal check. The seller’s bank again returned the check because the defendant’s account contained insufficient funds. The seller contacted the defendant. The defendant said “there was a wire problem at the bank, a transfer problem.” The defendant also said that he still wanted to make good on the payment.

A few days later, the defendant dropped off a certified $20,000 check at the seller’s business. That check cleared. However, because the defendant did not pay the full amount owed for the equipment, the seller attempted to call the defendant on a number of occasions to no avail.

Three months later, the seller obtained a civil writ of replevin to re-enter the recording studio and recover the equipment. Upon re-entering the recording studio, the seller observed that some of the “high-end” equipment was missing. The missing equipment’s value, as listed in the parties’ asset purchase agreement, was over $33,000.

The seller contacted the defendant about the missing equipment. The defendant told the seller that the equipment was at a repair shop. The defendant gave the seller a telephone number for the repair shop. The seller called the telephone number four different times, but no one answered.

The seller notified the police about the defendant’s non-payment and the missing equipment. The police subpoenaed the defendant’s bank records. The bank records, stipulated into evidence, indicated that, during the three-month period when the defendant gave the seller his personal checks, there were never funds in his account to cover the amount of the checks.

The state charged the defendant with three counts: (1) grand theft of the seller’s equipment, valued at $100,000 or more, at the time the defendant issued the first worthless check; (2) obtaining the seller’s equipment in return for the first worthless check; and (3) obtaining the seller’s equipment in return for the second worthless check.

After the state presented the evidence described above, the defendant moved for a judgment of acquittal on all charges. On the grand theft charge, the defendant argued the state did not present sufficient evidence to prove that he obtained the equipment with the intent to defraud the seller. The defendant further argued that his partial payments negated any possible finding that he intended to defraud the seller. The trial court denied the motion.

On count one, the jury found the defendant guilty of grand theft as charged. On count two, the jury found the defendant guilty of the lesser included offense of attempting to obtain property in return for the first worthless check. On count three, the jury found the defendant guilty as charged of obtaining property in return for the second worthless check.

This appeal followed. The defendant argues that the trial court erred in denying his motion for judgment of acquittal on the charges of grand theft and obtaining property in return for the second worthless check. As stated above, we affirm without further discussion the defendant’s conviction for obtaining property in return for the second worthless check. Also, the defendant does not appeal his conviction of attempting to obtain property in return for the first worthless check.

Thus, we limit our review to the trial court’s denial of the defendant’s motion for judgment of acquittal on the grand theft charge. Our supreme court set forth the appropriate standard of review in Pagan v. State, 830 So.2d 792 (Fla.2002):

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. 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. However, if the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence.

Id. at 803 (internal citations omitted).

Because the defendant’s motion for judgment of acquittal focused on the issue of intent, that is, whether he intended to defraud the seller, we conclude that the circumstantial evidence standard applies. See Segal v. State, 98 So.3d 739, 743 (Fla. 4th DCA 2012) (“Intent, being a state of mind, is often not subject to direct proof and can only be inferred from circumstances.”) (citation and quotations omitted).

Applying the circumstantial evidence standard of review, we conclude that the trial court properly denied the defendant’s motion for judgment of acquittal on the grand theft charge. Section 812.014(1), Florida Statutes (2008), defines theft as follows:

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

§ 812.014(1), Fla. Stat. (2008) (emphasis added). Section 812.012(3), Florida Statutes (2008), defines “obtains or uses” as including “[ojbtaining property by fraud, willful misrepresentation of a future act, or false promise.” § 812.012(3)(c), Fla. Stat. (2008).

Applying section 812.014(1) here, we conclude that the state introduced competent, substantial evidence to prove that the defendant obtained the seller’s music recording equipment with the intent to permanently deprive the seller of full payment for the equipment. Viewing the evidence in the light most favorable to the state, the defendant obtained the equipment by fraud or willful misrepresentation by providing personal checks which were insufficient to pay the balance owed for the equipment while telling the seller that the money was in his account.

The defendant argues the fact that he made partial payments negates a finding that he obtained the seller’s equipment by fraud, willful misrepresentation of a future act, or false promise. In support, the defendant relies on Segal for the proposition that “evidence of actual performance of some portion of the contract negates an intent not to perform at the inception of the contract.” Segal, 98 So.3d at 744.

However, the defendant’s reliance on Segal is incomplete. We provide more detail on Segal to explain our point.

In Segal, the defendant entered into a contract to construct cabinets for a customer. The customer wrote a check for some of the costs, which the defendant deposited. The defendant came to the customer’s home to measure for the cabinets, purchased materials, and made several rental payments on his work space where he would construct the cabinets. However, the defendant did not install the cabinets at any point. The state charged the defendant with grand theft. At the end of the state’s case at trial, the defendant moved for a judgment of acquittal, arguing that the state failed to prove an intent to steal or defraud. The trial court denied the motion.

We reversed and directed the trial court to vacate the defendant’s conviction and sentence. After examining similar cases from other districts, we indeed stated that “evidence of actual performance of some portion of the contract negates an intent not to perform at the inception of the contract.” Id. However, our holding was not based solely on the fact that the defendant had actually performed a portion of the contract. Instead, our holding also was based on the fact that “[t]he state presented no evidence of any willful misrepresentations to induce the homeowner to sign the contract.” Id. at 745.

Unlike Segal, the state here presented evidence of willful misrepresentations to induce the seller to close on the transaction. The defendant provided personal checks which were insufficient to pay the balance owed for the equipment while telling the seller that the money was in his account. Thus, sufficient circumstantial evidence of felonious intent existed and the state met its burden of producing evidence inconsistent with the defendant’s theory of innocence. See Iglesias v. State, 676 So.2d 75, 76 (Fla. 3d DCA 1996) (where the defendant intentionally misrepresented that he was a licensed contractor, “[sjuffi-cient circumstantial evidence of felonious intent exists and ... the State met its burden of producing evidence inconsistent with the defendant’s theory of innocence”).

By this opinion, we do not mean to express the view that the state should prosecute as a theft every breach of contract involving the failure to pay money. Instead, we write to express the view that the state should not be precluded from doing so when it can prove circumstantial evidence of felonious intent, as that term is used in section 812.014(1), which is inconsistent with the defendant’s theory of innocence.

Based on the foregoing, we affirm the defendant’s conviction for grand theft of property valued at $100,000 or more, as well as the defendant’s conviction for obtaining property in return for a worthless check.

Affirmed.

WARNER and CIKLIN, JJ„ concur.