author: Gerber, j.

text:
    AMERICAN HOME ASSURANCE COMPANY, an insurance corporation, Appellant, v. Ronald D’AGOSTINO, Appellee.
    No. 4D15-2148
    District Court of Appeal of Florida, Fourth District.
    [January 4, 2017]

      Richard A. Sherman, Sr. and James- W. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Kerri E. Utter of Law Offices of Sanabria, Llórente & Associates, Plantation, for appellant.
    Erin P. Newell of Wasson & Associates, Miami, and Patrick J. Tighe of XlLaw P.A., North Palm Beach, for appellee.
   On Appellant’s Motion for Rehearing

Gerber, j.

In light of our supreme court’s decision in Kuhajda v. Borden Dairy Company of Alabama, LLC, 202 So.3d 391 (Fla. 2016), we grant appellant’s motion for rehearing, withdraw our opinion issued October 27, 2016, and substitute the following opinion in its place.

The defendant, which prevailed at trial after a jury verdict of no liability, appeals from the trial court’s order denying the defendant’s motion to tax attorney’s fees and costs against the plaintiff pursuant to a proposal for settlement served under section 768.79, Florida Statutes (2014), and Florida Rule of Civil Procedure 1.442 (2014).

The trial court denied the defendant’s motion on the ground that the defendant’s proposal for settlement failed to strictly follow rule 1.442’s requirements in two respects:

(1) by stating that the proposal resolves all “claims” instead of all “damages” in the action, pursuant to rule 1.442(c)(2)(B) (“A proposal shall ... state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F).”) (emphasis added); and
(2) by failing to state “whether attorneys’ fees are part of the legal claim” pursuant to rule 1.442(c)(2)(F) (“A proposal shall ... state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim.”) (emphasis added).

The defendant argues the trial court erred in invalidating the proposal for settlement because: (1) the proposal’s use of the word “claims” instead of the word “damages” did not render the proposal ambiguous; and (2) it was unnecessary for the proposal to state “whether attorney’s fees are part of the legal claim” when the plaintiffs complaint did not request attorney’s fees.

We agree with the defendant’s arguments and reverse. We present this opinion in three parts:

1. the procedural history;
2. why the proposal’s use of the word “claims” instead of the word “damages” did not render the proposal ambiguous; and
3. why it was unnecessary for the proposal to state “whether attorney’s fees are part of the legal claim.”

1. Procedural History

The plaintiff was injured when his car was struck by an uninsured motorist. The plaintiff sued the defendant (his uninsured motorist insurance carrier) to recover his damages. The plaintiffs complaint did not request attorney’s fees.

The defendant served a proposal for settlement. The proposal contained two provisions pertinent here:

• “This proposal is intended to resolve all claims of Plaintiff ... against Defendant ... in the above-styled action” and “[ajcceptance ... is conditioned upon Plaintiff filing a Voluntary Dismissal with Prejudice of Defendant.”
• “This Proposal includes all potential claims for attorneys’ fees and costs.”

(emphasis added). The plaintiff did not accept the defendant’s proposal for settlement.

The defendant prevailed at trial after a jury verdict of no liability. The trial court entered a final judgment in the defendant’s favor, while retaining jurisdiction to tax the defendant’s attorney’s fees and costs against the plaintiff. The defendant then filed its motion to tax attorney’s fees and costs against the plaintiff pursuant to its proposal for settlement.

In response to the defendant’s motion, the plaintiff raised essentially two arguments.

First, the plaintiff argued that the proposal’s use of the word “claims” failed to strictly follow rule 1.442(c)(2)(B), which refers to “damages.” See Fla. R. Civ. P. 1.442(c)(2)(B) (2014) (“A proposal shall ... state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served.”) (emphasis added). According to the plaintiff, the proposal’s use of the word “claims” instead of “damages” rendered the proposal ambiguous because it was unclear whether accepting the proposal and voluntarily dismissing the defendant with prejudice would waive the plaintiffs claims for available MedPay and PIP benefits in addition to the plaintiffs claim for UM benefits.

Second, the plaintiff argued that the proposal failed to strictly follow rule 1.442(c)(2)(F), which requires that the proposal state “whether attorneys’ fees are part of the legal claim.” See Fla. R. Civ. P. 1.442(c)(2)(F) (2014) (“A proposal shall ... state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim”) (emphasis added).

At the hearing on the defendant’s motion, the defendant replied that its use of the word “claims” instead of “damages” did not render the proposal ambiguous because no other claimed benefits were at issue besides UM benefits, as the plaintiff did not plead in the complaint any entitlement to Med Pay or PIP benefits. The defendant also replied it was unnecessary for the proposal to state “whether attorney’s fees are part of the legal claim” when the plaintiffs complaint did not request attorney’s fees.

After the hearing, the trial court issued an order denying the defendant’s motion. The court reasoned that the defendant’s proposal for settlement did not strictly comply with rule 1.442(e)(2)(B)’s use of the word “damages” instead of “claims,” and did not strictly comply with rule 1.442(c)(2)(F)’s requirement to state “whether attorneys’ fees are part of the legal claim.”

This appeal followed. Our review is de novo. See Pratt v. Weiss, 161 So.3d 1268, 1271 (Fla. 2016) (“The eligibility to receive attorney’s fees and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo.”).

2. Why the proposal’s use of the word “claims” instead of the word “damages” did not render the proposal ambiguous.

Our supreme court has held that “given the nature of language, it may be impossible to eliminate all ambiguity” in a proposal for settlement. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006). According to our supreme court, “[Rule 1.442] does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Id. “Therefore, parties should not ‘nit-pick’ the validity of a proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could ‘reasonably affect the offeree’s decision’ on whether to accept the proposal for settlement.” Carey-All Transp., Inc. v. Newby, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008) (quoting Nichols, 932 So.2d at 1079).

Here, we conclude the defendant’s proposal for settlement, despite using the word “claims” instead of “damages,” was sufficiently clear and definite to have allowed the plaintiff “to make an informed decision without needing clarification.” Nichols, 932 So.2d at 1079. No other claimed benefits were at issue besides UM benefits, as the plaintiff did not plead in the complaint any entitlement to Med Pay or PIP benefits. Thus, given that the plaintiffs “claim” and “damages” were one and the same, the proposal’s use of the word “claims” instead of “damages” reasonably could not have affected the plaintiffs decision on whether to accept the proposal.

We recognize that in 2014 (before the defendant served its proposal for settlement on the plaintiff in this case), our supreme court amended rule 1.442(c)(2)(B) to use the word “damages” instead of “claims.” That is, before the amendment, rule 1.442(c)(2)(B) required that a proposal for settlement “identify the claim or claims the proposal is attempting to resolve.” (emphasis added). After the amendment, rule 1.442(c)(2)(B) required that a proposal for settlement “state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F) [provision governing attorney’s fees].” In re Amendments to the Florida Rules of Civil Procedure, 131 So.3d 643, 644 (Fla. 2013) (emphasis added). According to our supreme court, a majority of the Florida Bar’s Civil Procedure Rules Committee determined the amendment was needed to “curtail partial proposals for settlement and to comport with section 768.79(2), Florida Statutes (2012), which states, in pertinent part, that ‘[t]he offer [to settle] shall be construed as including all damages which [may] be awarded in a final judgment.’ ” Id. (emphasis added). The supreme court “deferred] to the majority view and amendfed] the rule as proposed.” Id.

Although we would expect any post-amendment proposal for settlement would use the post-amendment word “damages” instead of the pre-amendment word “claims”, we do not construe the amendment as suggesting that any post-amendment proposal for settlement which uses the word “claims” instead of “damages” automatically invalidates the proposal or renders it ambiguous. Moreover, the defendant here plainly did not offer a partial proposal for settlement, and thus the rationale supporting the 2014 amendment was not jeopardized.

3. Why it was unnecessary for the proposal to state “whether attorney’s fees are part of the legal claim. ”

It was unnecessary for the proposal to state “whether attorney’s fees are part of the legal claim” when the plaintiffs complaint did not request attorney’s fees.

This issue recently was resolved by our supreme court in Kuhajda v. Borden Dairy Company of Alabama, LLC, 202 So.3d 391 (Fla. 2016), which the trial court did not have the benefit of at the time of its ruling. In Kuhajda, our supreme court held that “if attorney’s fees are not sought in the pleadings[,] an offer of settlement is not invalid for failing to state whether the proposal includes attorney’s fees and whether attorney’s fees are part of the legal claim.” We examine Kuhajda in greater detail.

In Kuhajda, the plaintiff served the defendants with identical offers of judgment specifying that the offers included costs, interest, and all damages or monies recoverable under the complaint and by law. Ultimately, the plaintiff prevailed on her claim against the defendants, and the jury awarded her damages sufficiently in excess of the amount contained in her offers of judgment to trigger the payment of fees under section 768.79(1). Following entry of judgment in the plaintiffs favor, the trial court granted the plaintiffs motion to tax attorney’s fees and costs in accordance with section 768.79 and rule 1.442. The trial court determined that the failure to include the attorney’s fees language in the offer of judgment did not create an ambiguity because the plaintiff never sought attorney’s fees in her complaint.

On appeal, the First District held that an offer of judgment must strictly comply with rule 1.442(c)(2)(F) even when the complaint does not include a claim for attorney’s fees. Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So.3d 242, 243 (Fla. 1st DCA 2015). The First District explained that in Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013)—a case where the plaintiff sought attorney’s fees in the complaint— our supreme court held that an offer of judgment failed to strictly comply with rule 1.442(c)(2)(F) because it did not state that the offer included attorney’s fees and whether attorney’s fees were part of the legal claim. Borden Dairy, 171 So.3d at 243. The First District reasoned that because Diamond Aircraft made the test for determining the validity of an offer of judgment strict compliance rather than the absence of ambiguity, an offer must strictly comply with rule 1.442(c)(2)(F) even when attorney’s fees are not sought in the complaint. Id. The First District thus reversed the order granting the plaintiffs motion to tax attorney’s fees and costs.

Our supreme court quashed the First District’s decision. Writing for the court, Justice Canady reasoned:

[The plaintiff] is entitled to attorney’s fees under section 768.79 because the offers of judgment at issue in this case are not ambiguous. As' explained previously, [the plaintiff] served [the defendants] with identical offers of judgment specifying that the offers included costs, interest, and all damages or monies recoverable under the complaint and by law. The failure to include the attorney’s fees language in the offer of judgment did not create an ambiguity because [the plaintiff] never sought attorney’s fees in her complaint. Neither [defendant] argues to the contrary, and it is indisputable that [the plaintiff] fully complied with the relevant requirements of the rule that implement the substantive requirements of section 768.79.
We agree with Bennett [v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003),] that “[i]t would make no sense to require a defendant to state in its offer of judgment that the offer does not include attorney’s fees, when plaintiff did not claim an entitlement to them and could not recover them because of failure to plead” and “there [is] no ambiguity in the proposal.” Bennett, 857 So.2d at 988-89. As this Court has recognized, “a claim for attorney’s fees, whether based on statute or contract, must be [pleaded]” unless “a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement[.]” Stockman v. Downs, 573 So.2d 835, 837-38 (Fla. 1991).
We therefore hold that an offer of settlement is not invalid for failing to state whether the proposal includes attorney’s fees and whether attorney’s fees are part of the legal claim under rule 1.442(c)(2)(F) if attorney’s fees are not sought in the pleadings. Bennett correctly concluded that an offer of judgment need not strictly comply with the requirements of rule 1.442(c)(2)(F) when attorney’s fees are not sought in the pleadings. Borden Dairy erred in disagreeing with Bennett

(other internal citations omitted).

Pursuant to Kuhajda, we hold that the defendant’s proposal for settlement here is not invalid for failing to state “whether attorney’s fees are part of the legal claim” under rule 1.442(c)(2)(F) when the plaintiffs complaint did not request attorney’s fees.

Conclusion

Based on the foregoing, we reverse the trial court’s order denying the defendant’s motion to tax attorney’s fees and costs against the plaintiff pursuant to the defendant’s proposal for settlement. We remand for the trial court to hold an evidentiary hearing to determine the amount of attorney’s fees and costs to which the defendant is entitled from the plaintiff pursuant to the defendant’s proposal for settlement.

Reversed and remanded.

May and Levine, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LUIS Flores, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3457
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant Luis Flores appeals the trial court’s denial of his motion to withdraw plea. As discussed below, the trial court erred in denying Appellant’s motion to withdraw plea because the court did not have jurisdiction to entertain that motion. Accordingly, we reverse and remand for the trial court to vacate its order.

Background

The State charged Appellant with attempted murder in the second degree and possession of cannabis. Appellant pleaded guilty to both counts. The trial court sentenced Appellant to the minimum mandatory of twenty-five years’ imprisonment for attempted murder.

On September 9, 2015, Appellant’s attorney filed a notice of appeal with this Court, appealing the conviction, judgment, and sentence rendered by the trial court. On September 16, 2015, seven days later, Appellant’s attorney filed a motion in the trial court to withdraw Appellant’s guilty plea. In this motion, Appellant claimed that his plea was involuntary because his counsel affirmatively misadvised him regarding the consequences of the plea. Appellant asserted that he “was told by the defense counsel that if he open plead ... he then will be granted a ‘youthful offender sentence.’ And that he will not be given the min/ mand sentence of 25 years.” After a hearing, the trial court denied the motion. Shortly thereafter, Appellant filed a second notice of appeal, this time appealing the denial of his motion to withdraw plea.

Analysis

The trial court erred in denying Appellant’s motion to withdraw because, as a result of the September 9 appeal to this Court, the trial court lacked jurisdiction to entertain the September 16 motion. We recently confronted a similar situation and held that “[t]he notice of appeal divested the trial court of jurisdiction to rule on appellant’s subsequently-filed ... motion to withdraw plea.” Walker v. State, 203 So.3d 192, 192 (Fla. 4th DCA 2016) (citing Copeland v. State, 867 So.2d 643, 643 (Fla. 4th DCA 2004)); see also McCray v. State, 840 So.2d 274, 275 (Fla. 4th DCA 2003). Sister courts have held the same. See, e.g., Smith v. State, 113 So.3d 110, 111 (Fla. 5th DCA 2013); Wilson v. State, 814 So.2d 1203, 1204 (Fla. 2d DCA 2002).

We would consider Appellant’s arguments on the merits with respect to the conviction, judgment, and sentence (the issues raised by his September 9 notice of appeal), but Appellant has failed to address these issues in his initial brief, concentrating instead on the denial of his motion to withdraw plea. “When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy.” Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983). “[I]t is not the function of the Court to rebrief an appeal.” Id.

Conclusion

Because the trial court did not have jurisdiction to consider Appellant’s motion to withdraw plea, we reverse and remand with directions to vacate the order. This holding is without prejudice to Appellant filing a new motion to withdraw pursuant to Florida Rule of Criminal Procedure 3.850. See Walker, 203 So.3d at 192; McCray v. State, 840 So.2d at 275.

Reversed and remanded.

Damoorgian, Gerber and Forst, JJ., concur.

      . Appellant was also sentenced to 441 days’ imprisonment for possession of cannabis, to be served concurrently with the sentence for attempted murder.

      . There are three different motions to withdraw plea in the record. Appellant’s counsel filed the first motion to withdraw on September 16, 2015. Appellant pro se filed a second motion to withdraw on September 24, 2015. He then pro se filed a third motion on September 28, 2015. The pro se motions were stricken by the trial court due to Appellant being represented by counsel. Regardless of which motion we review, all were filed after the first notice of appeal.


text:
    B.A., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and the Guardian Ad Litem Program, Appellees.
    No. 4D16-3462
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]
    Frank A. Kreidler, Lake Worth, for appellant.
    Sara E. Goldfarb, Sanford, for appellee Guardian ad Litem Program.
   Per Curiam.

Affirmed. See S.M. v. Dep’t of Children & Families, 202 So.3d 769 (Fla. 2016).

Warner, Gross and May, JJ., concur.


text:
    Kwesi CALLENDER, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 4D16-2185
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]
    Kwesi Callender, West Palm Beach, pro se.
    Wm. David Newman, Jr. of Choice Legal Group, P.A., Fort Lauderdale, for ap-pellee.
   ON CONCESSION OF ERROR

Per Curiam.

Appellee has conceded error in the entry of the order granting writ of possession. That order is the subject of the instant appeal. Based on 28 U.S.C. § 1446 (2015), and Musa v. Wells Fargo Delaware Trust Co., 181 So.3d 1275 (Fla. 1st DCA 2015), this case is reversed and remanded to the trial court.

Ciklin, C.J., Warner and Gross, JJ., concur.


author: Damoorgian, J.

text:
    Linda SCHUMACHER, Appellant, v. REBACK REALTY, INC., a Florida Corporation, Appellee.
    No. 4D16-0755
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]
    E. Cole Fitzgerald, III and James A. Burnham of Fitzgerald, Mayans & Cook, P.A., West Palm Beach, for appellant.
    Lawrence Duffy of Lawrence Duffy, P.A., Palm Beach Gardens, for appellee.
   Damoorgian, J.

Linda Schumacher (‘Agent”) appeals the summary final judgment entered in favor of Reback Realty, Inc. (“Broker”) in her breach of contract action. For the reasons discussed below, we reverse the summary final judgment and remand for further proceedings consistent with this opinion.

The following facts are undisputed. In 2013, Agent entered into an independent contractor agreement (the ‘Agreement”) with Broker. The Agreement provided that commissions would be generally split 80/20, with 80% going to Agent and 20% going to Broker. The Agreement further provided that in the event ‘two or more AGENTS participate in rendering a brokerage service to the public, or claim to have done so, BROKER will determine, in BROKER’S sole and absolute discretion, the amount of fees due AGENT(S).”

In 2014, Agent, along with another individual working on behalf of Broker, was involved in a real estate transaction which produced a $100,000 commission. Pursuant to the Agreement, Agent requested her $80,000 share of the commission. Broker refused and Agent sued for breach of contract. In its answer, Broker denied that Agent was entitled to the full $80,000 commission fee because two or more ‘agents” participated in the transaction. Therefore, pursuant to the ‘two or more agents” provision, Broker had the sole and absolute discretion in determining the amount of commission fees due to each agent. Aside from alleging that a second ‘agent” was involved in the transaction, Broker attached no evidence showing that the other individual was in fact an agent.

Broker eventually moved for summary judgment on the same grounds as alleged in the answer. Broker’s summary judgment evidence consisted of the following: (1) a copy of the Agreement; (2) the transcript from Agent’s deposition; and (3) an affidavit from Broker’s representative attesting that the Agreement was in effect at all times material to the litigation. Broker again attached no evidence showing that the other individual involved in the transaction was in fact an agent. Following a brief summary judgment hearing, the trial court entered summary final judgment in favor of Broker. The court’s decision was based on its finding that because two or more ‘agents” were involved in the transaction, Broker could not be in breach of contract for refusing to pay Agent the full $80,000 commission fee. This appeal follows.

‘We review a trial court’s order on a motion for summary judgment de novo.” Hibbs Grove Plantation Homeowners Ass’n v. Aviv, 193 So.3d 977, 979 (Fla. 4th DCA 2016). It is well established that ‘[a] trial court may enter summary judgment only when there are no genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law.” Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002) (emphasis added). Furthermore, ‘[a]ll doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.” Id.

In the present case, Agent’s breach of contract claim against Broker hinged on the issue of whether another ‘agent” participated in the transaction. By alleging that Broker breached the Agreement by refusing to pay her the full $80,000 commission fee, Agent impliedly took the position that she was the sole acting agent in the transaction and therefore entitled to the full commission fee. Broker, in turn, denied Agent’s allegation that she was entitled to the full commission fee because ‘more than one agent was involved in producing a result on behalf’ of Broker. Therefore, whether the other individual involved in the transaction qualified as an ‘agent” was a disputed issue of material fact in the case. It was incumbent on Broker, as the moving party, to produce summary judgment evidence demonstrating that two or more ‘agents” in fact participated in the transaction. As Broker failed to do so, the trial court erred in entering summary final judgment as a genuine issue of material fact remained.

Reversed and remanded.

Gerber and Forst, JJ., concur.


author: Ciklin, C.J.

text:
    Dennis DUCKSBURY, Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY and Progressive Select Insurance Company, Appellees.
    No. 4D15-4520
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]

      R. Matthews Miles, Jr. and Michael J. Walker, Holly Hill, for appellant.
    Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., Hollywood, for appellees.
   Ciklin, C.J.

The instant appeal arises from an insurance coverage dispute within a subrogation claim. Dennis Ducksbury (“Ducksbury”), the insured, appeals a final judgment on a third party complaint entered in favor of Progressive Express Insurance Company and Progressive Select Insurance Company (’’Progressive”). We affirm the trial court’s entry of final judgment in favor of Progressive and we write to address the phrase ’’being transported by” as it is used in the subject insurance policy.

In the events leading up to the action below, Ducksbury and his friend were planning a trip to Key West to participate in a motorcycle-related charity event. The two planned to drive Ducksbury’s SUV part of the way while hauling their motorcycles in a trailer. The friend secured his motorcycle in the trailer with ’’tie downs” and the two headed south. Somewhere near Boynton Beach, the trailer began to sway and then flipped, causing approximately $15,000 in damage to the friend’s motorcycle.

The friend submitted a claim to his insurance company, Allstate, which paid it. Allstate then sued Ducksbury for subrogation. Progressive, Ducksbury’s insurer, refused to indemnify and defend Ducksbury, leading Ducksbury to file a third-party complaint against Progressive.

Progressive responded, citing exclusion 10 of Ducksbury’s insurance policy. In pertinent part, the exclusion provides:

Coverage under this Part I, including our duty to defend, will not apply to any insured person for:
10. property damage to any property owned by, rented to, being transported by, used by, or in the charge of that insured person.

(Emphasis in original.) Progressive then moved for summary judgment based on the exclusion, contending that the motorcycle was ’’being transported by” Ducks-bury at the time of the incident. The trial court granted summary judgment and entered final judgment in favor of Progressive.

On appeal, Ducksbury argues that a proper reading of the phrase ’’being transported by” indicates that possessory control of the property is required before the exclusion can apply. He further contends that, because the friend never relinquished control of the motorcycle, the friend was the one transporting it, and thus the exclusion does not apply. Based on the plain language of the exclusion, we must affirm.

’’[Construction of an insurance policy [ ] is a question of law subject to de novo review.” Wash. Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013). When it comes to insurance contract interpretation, the Florida Supreme Court has explained as follows:

Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written. In construing insurance contracts, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect. Courts should avoid simply concentrating on certain limited provisions to the exclusion of the totality of others. However, policy language is considered to be ambiguous if the language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.

Id. (internal citations, quotation marks, and alterations omitted). ’’The terms of an insurance policy should be taken and understood in their ordinary sense and the policy should receive a reasonable, practical and sensible interpretation consistent with the intent of the parties—not a strained, forced or unrealistic construction.” Gen. Acc. Fire & Life Assur. Corp. v. Liberty Mut. Ins. Co., 260 So.2d 249, 253 (Fla. 4th DCA 1972).

’’Transport” is not defined in the policy. However,

The lack of a definition of a term in a policy does not render it ambiguous or in need of interpretation by the courts, but rather such ’’terms must be given their every day meaning and should be read with regards to ordinary people’s skill and experience.” Harrington v. Citizens Prop. Ins. Corp., 54 So.3d 999, 1003 (Fla. 4th DCA 2010) (citation omitted). ’’Florida courts will often use legal and non-legal dictionaries to ascertain the plain meaning of words that appear in insurance policies.” Id. (citation omitted).

Miglino v. Universal Prop. & Cas. Ins. Co., 174 So.3d 479, 481 (Fla. 4th DCA 2015).

There are no cases interpreting the phrase ’’being transported by” as it is used in the exclusion at issue in this case or in any individual’s insurance policy. Black’s Law Dictionary defines ’’transport” as ”[t]o carry or convey (a thing) from one place to another.” Black’s Law Dictionary (10th ed. 2014). Similarly, a non-legal dictionary defines ’’transport” as ”[t]o carry from one place to another.” The American Heritage Desk Dictionary 985 (1981).

We see only one reasonable interpretation of the language. The plain meaning of ’’being transported by” encompasses the friend’s motorcycle as being carried or conveyed to Key West by Ducksbury while it was inside a trailer being pulled by a vehicle that Ducksbury was driving. No further interpretation of the very simple, unambiguous language is required.

As found by the trial court and asserted by Progressive on appeal, Ducksbury seeks to interject words and meanings not present in the language of the exclusion when he argues that the exclusion must be read to require that the insured was exercising dominion and control over the property being transported. Exclusion 10 clearly contemplates the scenario at hand and thus we affirm.

Affirmed.

Taylor, J., and Lee, Robert W., Associate Judge, concur.


author: Levine, J.

text:
    Francisco J. JIMENEZ, Appellant, v. Nilda JIMENEZ, Appellee.
    No. 4D15-3333
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]

      Susan R. Brown of Susan R. Brown, P.A., Plantation, for appellant.
    Andrew S. Lieberman and Todd A. Wise of WiseLieberman, PLLC, Boca Raton, ap-pellee.
   Levine, J.

Francisco Jimenez, the husband, appeals a final judgment of dissolution of marriage. He argues that the trial court (1) failed,to consider all of the statutory factors before awarding permanent alimony, (2) made insufficient factual findings before prospectively increasing alimony, and (3) made insufficient factual findings before mandating that the husband maintain life insurance to secure alimony. We agree on all three issues, and accordingly reverse and remand.

The lower court, when dissolving the parties’ marriage, awarded $500 a month in permanent alimony to the wife, Nilda Jimenez. In awarding permanent alimony, the court found that the parties had a long-term marriage; the husband made about $65,000 and the wife made about $35,000; the parties lived a life of modest means; and the wife had 100% time-sharing.

There was evidence that the wife was a certified nurse; an EKG technician, and a phlebotomist, but did not pursue employment in these fields. The wife had previously worked as a nurse but quit. However, the lower court - did not expressly consider this evidence in evaluating whether permanent alimony was warranted.

The court also ordered that the wife’s alimony would automatically increase to $1,200 when the parties’ child graduated from high school. The court explained that alimony was $500 and child support was $700; once the child graduated from high school, the child support obligation would cease and $700 would be added to the husband’s alimony payments. The lower court did not explain why this automatic increase was necessary.

The court also required the husband to maintain life insurance to secure child support and alimony. Although the record reflected that the husband had only one policy on his own life, the court stated that because the husband was currently paying for two life insurance policies, it could require him to maintain those policies. The court did not articulate the circumstances that justified requiring the husband to maintain life insurance to secure alimony.

On appeal, the husband argues that the trial court erred because it did not consider all of the factors contained within section 61.08(2), Florida Statutes, before awarding the wife permanent alimony. We review the trial court’s alimony award for abuse of discretion. Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003).

Section 61.08(2), Florida Statutes (2015), lists ten factors that a court “shall consider” before awarding alimony. These factors include:

(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and em-ployability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common.
(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties.

This statute requires the trial court to “include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” § 61.08(1), Fla. Stat. A court’s “failure to consider all of the mandated factors [of section 61.08] is reversible error.” Ondrejack, 839 So.2d at 870 (emphasis added). If the trial court does not consider all of the statutory factors, the appropriate remedy is to remand so the lower court can give “proper consideration ... to all of the statutory factors based upon the evidence in the record.” Id. at 871.

In the present case, the lower court failed to consider “all of the mandated factors.” See id. at 870. Notably, although there was testimony that the wife could seek alternative employment as a nurse, an EKG technician, or a phlebotomist, the lower court failed to consider her “earning capacities, educational levels, vocational skills, and employability.” § 61.08(2)(e), Fla. Stat. We therefore reverse and remand for the trial court to consider all of the section 61.08(2) factors.

The husband next argues that the trial court erred in prospectively increasing alimony without making sufficient findings of fact.

Generally, “it is error to provide for an automatic, future change or termination of alimony based upon the anticipated occurrence of a future event.” Hitt v. Hitt, 571 So.2d 79, 80 (Fla. 4th DCA 1990). However, a prospective increase in alimony is permitted if the increase is “precisely drawn and conditioned upon a specifically identified occurrence.” Rao v. Rao, 501 So.2d 38, 39 (Fla. 2d DCA 1986). Before prospectively increasing alimony the court must “mak[e] specific factual findings of extenuating circumstances that would support the automatic increase in alimony.” Swanston v. Swanston, 746 So.2d 566, 568 (Fla. 1st DCA 1999). Conditioning an automatic increase in alimony upon the child reaching the age of majority, without any findings as to “extenuating circumstances that would support the automatic increase in alimony,” is error. Id.; Reid v. Reid, 365 So.2d 1050, 1051 (Fla. 4th DCA 1978); Umstead v. Umstead, 620 So.2d 1074, 1075 (Fla. 2d DCA 1993).

In the present case, the trial court stated that the husband’s alimony payments would increase automatically upon the child graduating from high school. The court made no additional findings to justify this increase. We therefore reverse and remand for the court to “mak[e] specific factual findings of extenuating circumstances” if, on remand, it decides to prospectively increase the husband’s alimony payments. See Swanston, 746 So.2d at 568.

Finally, the husband argues that the trial court erred in ordering him to maintain life insurance to secure the wife’s alimony. We review a trial court order requiring that a party maintain life insurance for abuse of discretion. Gepfrich v. Gepfrich, 510 So.2d 369, 370 (Fla. 4th DCA 1987).

Although a trial court may require a party to maintain life insurance to secure alimony, “it must make ‘specific findings as to the availability and cost of the policies and the impact of such cost on the husband.’” Galstyan v. Galstyan, 85 So.3d 561, 565 (Fla. 4th DCA 2012) (quoting Norman v. Norman, 939 So.2d 240, 241 (Fla. 1st DCA 2006)). “ ‘An order requiring a spouse to maintain a life insurance policy to secure alimony ’is justified only if there is a demonstrated need to protect the alimony recipient.’ The ‘demonstrated need’ must be supported by competent, substantial evidence.” Id. (quoting Forgione v. Forgione, 845 So.2d 968, 969-70 (Fla. 4th DCA 2003)). Furthermore, “the amount of life insurance required must not exceed the support obligation.” Brennan v. Brennan, 122 So.3d 923, 926-27 (Fla. 4th DCA 2013).

The court below stated that the husband was able to maintain life insurance to secure both child support and alimony because the husband already had two life insurance policies. However, the record reflects that the husband indicated he had only one policy on his own life. Thus, it is unclear whether the lower court was requiring the husband to obtain an additional life insurance policy. If the court was requiring the husband to maintain multiple policies, the court must make findings as to the availability and cost of obtaining multiple policies. Furthermore, the court’s order did not articulate what “demonstrated need” of the wife justified requiring the husband to maintain life insurance to secure his alimony obligation. Finally, the lower court neglected to state the amount of life insurance the husband must maintain to secure his alimony obligation.

We therefore reverse and remand for the lower court to clarify the amount of life insurance the husband must maintain to secure alimony if the court on remand determines that life insurance is required. Additionally, the court must state what “demonstrated need” justifies requiring that the husband maintain life insurance.

In summary, we reverse and remand for the trial court to consider all of the section 61.08 factors in determining whether to grant the wife permanent alimony. We also remand with instructions that if the trial court determines that a prospective increase in alimony is warranted, it must make the requisite findings of fact. Finally, we reverse the trial court’s mandate that the husband secure his alimony payments with life insurance, and on remand, the trial court must make the necessary findings of fact before ordering the husband to maintain life insurance.

Reversed and remanded.

Taylor and Conner, JJ., concur.

      . Other factors the trial court failed to address include factors (c), "[t]he age and the physical and emotional condition of each party”; (0, ‘‘[t]he contribution of each party to the marriage”; and (h), ”[t]he tax treatment and consequences to both parties of any alimony award.” The court should also address these factors on remand.


text:
    Caroline SEDKY, Appellant, v. Sameh IBRAHIM, Appellee.
    No. 4D15-2376
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]
    Robin Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Catherine L. Roselli, Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

Per Curiam.

We grant appellant’s motion for rehearing and/or clarification, withdraw our previous opinion, and substitute the following in its place.

Caroline Sedky, the wife, appeals the final judgment of dissolution of marriage. In its final judgment, the lower court stated that the parties’ children could travel to Egypt if both parents consent. However, in the court’s parenting plan, the court ordered that the children “shall not” travel to Egypt. As these two statements are inconsistent with one another, we remand for the lower court to clarify the final judgment and parenting plan. See Justice v. Justice, 80 So.3d 405, 407 (Fla. 1st DCA 2012); see also Pope v. Langowski, 115 So.3d 1076, 1077 (Fla. 4th DCA 2013) (remanding for clarification where the parenting plan was inconsistent). We find the remaining issues on appeal to be without merit and affirm without comment.

Affirmed in part, reversed in part, and remanded.

Gerber, Levine and Klingensmith, JJ., concur.


text:
    Geraldo ALEXIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2201
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   Ciklin, C.J.

Geraldo Alexis appeals the portion of his sentence imposing a public defender fee of $500. Because the trial court failed to require proof of the amount of the fees imposed, we reverse and avail ourselves of this opportunity to set forth the relevant statutory authority and case law concerning this oft-repeated area of misconception.

Alexis was charged with burglary of a dwelling, grand theft, and lewd or lascivious battery, and ultimately entered an open plea of no contest to the charges. Following the sentencing hearing, the trial court adjudicated Alexis guilty and sentenced him to a period of imprisonment. Included within the pronouncement of his sentence, the trial court imposed a $500 public defender fee. Relying on the clerk of court, the trial judge imposed the $500 amount which, because it was without evi-dentiary support, constituted error.

Thereafter, Alexis moved to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), alleging that he was not told that he had the right to contest the amount of the fee and that no evidence was presented to justify the imposition of the fee. His motion was denied and this appeal follows. We reverse.

There are multiple fees associated with representation by a public defender. To begin with, at the time the public defender is appointed, a defendant must be informed of the possibility that a lien related to the legal services to be provided may attach. Fla. R. Crim. P. 3.111(b)(5)(A). Additionally, a person seeking appointment of a public defender must pay a $50 application fee to the clerk. § 27.52(l)(b), Fla. Stat. (2015).

Payments of attorney’s fees for the services rendered by the public defender are governed by section 938.29 and by Florida Rule of Criminal Procedure 3.720. Section 938.29 provides that a defendant who utilizes the public defender’s office and is convicted is liable for attorney’s fees and costs, section 938.29(l)(a), Florida Statutes, and the court shall impose the attorney’s fees and costs notwithstanding the defendant’s present ability to pay, section 938.29(l)(b), Florida Statutes. Statutory minimum fees of $50 per case for a charged misdemeanor or criminal traffic violation and $100 per case for a charged felony apply. § 938.29(l)(a). Because these fees are statutorily mandated, notice and a hearing are not required before imposition of the minimum amount. Odom v. State, 187 So.3d 324, 325 (Fla. 1st DCA 2016). The preliminary notification of the possibility of a lien must however, be made at the time of the public defender’s appointment pursuant to rule 3.111(b)(5)(A).

As occurred in the instant case, the trial court may exercise discretion to impose a public defender fee that exceeds the statutory minimum. But the imposition of a public defender fee can only occur “upon a showing of sufficient proof of higher fees or costs incurred.” § 938.29(l)(a). Thus, where the public defender fee exceeds the minimum, there must be some “evidence to establish a reasonable hourly rate or the amount of time spent by the public defender on the case,” and “the court must make factual findings of ‘higher fees or costs incurred.’” See Houle v. State, 33 So.3d 822, 823 (Fla. 4th DCA 2010) (quoting § 938.29(l)(a)).

Further, a public defender fee amount that exceeds the statutory minimum fee thereby becomes discretionary and accordingly “‘must be orally pronounced at sentencing because such costs may not be imposed without affording the defendant notice and an opportunity to be heard.’ ” Mills v. State, 177 So.3d 984, 985 (Fla. 1st DCA 2015) (quoting Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012)). The trial court must announce at sentencing the amount of the lien, as well as “the accused’s right to a hearing to contest the amount of the lien.” Fla. R. Grim. P. 3.720(d)(1). “If the accused requests a hearing to contest the amount of the lien, the court shall set a hearing date within 30 days of the date of sentencing.” Fla. R. Crim. P. 3.720(d)(2).

In sum, at all sentencing hearings for defendants represented by a public defender, a trial court must—unless previously imposed at an earlier stage of the proceedings—impose a $50 application fee, as well as a minimum public defender fee of either $50 (for misdemeanor or criminal traffic violation charges) or $100 (for felony charges). If the trial court chooses to impose a higher fee, there must be evidence of the higher fees or costs and the trial court must make factual findings thereon. Also in the event of higher fees, the defendant must be notified of his right to a hearing to contest the fees.

Here, there was no evidence or indication of a reasonable hourly rate or the time the public defender spent on the ease and the trial court failed to make factual findings warranting the imposition of the additional $400.

Consequently, we reverse the public defender lien and remand to the trial court to reduce the public defender fee to the statutorily required $100 or to hold a hearing with proper notice to obtain evidence in support of a public defender fee in an amount greater than the statutory minimum.

Reversed and remanded with instructions.

Taylor, J., and Lee, Robert W., Associate Judge, concur.

      . Section 27.52(l)(b) provides that the defendant "shall pay” the fee "to the clerk .... within 7 days after submitting the application.” If the fee is not paid prior to the disposition of the case, the clerk shall notify the court and the court shall either assess the application fee "as part of the sentence or as a condition of probation” or "pursuant to s. 938.29.” Id.


text:
    Karelina REYES, Appellant, v. US BANK NATIONAL ASSOCIATION, as Trustee on Behalf of New Century Alternative Mortgage Loan Trust 2006-ALT2, et al., Appellees.
    No. 4D15-866
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]
    Thomas Erskine Ice of Ice Appellate, Royal Palm Beach, for appellant.
    Michele L. Stocker of Greenberg Trau-rig, P.A., Fort Lauderdale, Kimberly S. Mello and Robert Schneider of Greenberg Traurig, P.A., Tampa, for appellee US Bank National Association, as Trustee on Behalf of New Century Aternative Mortgage Loan Trust 2006-ALT2.
   Per Curiam.

Appellant Karelina Reyes appeals the trial court’s final judgment of foreclosure in favor of Appellee US Bank National Association, as Trustee of a specific trust. We affirm without comment on all issues raised, save one. As Appellee concedes, there is no competent, substantial evidence in the record to support the award of attorneys’ fees included in the final judgment. See Lasala v. Nationstar Mortg., LLC, 197 So.3d 1228, 1229 (Fla. 4th DCA 2016) (“A claim regarding the sufficiency of the evidence is reviewed for competent substantial evidence.”). We therefore reverse the award of those fees. We remand for further proceedings “to properly establish the correct amount due and owing.” Hovannesian v. PennyMac Corp., 190 So.3d 681, 682 (Fla. 4th DCA 2016); see also Tervil v. U.S. Bank Nat’l Ass’n, 4D15-2561 (Fla. 4th DCA Nov. 30, 2016) (holding that the lack of an evidentiary hearing on the issue of attorneys’ fees requires reversal for the hearing to occur).

Reversed and remanded.

Warner, Gross and Forst, JJ., concur.


author: MAY, J.

text:
    Larry DAUGHTRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1939
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2017]

      J. Rafael Rodriguez of Law Offices of J. Rafael Rodriguez, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for first degree murder. He argues the trial court erred in: (1) denying his motion for judgment of acquittal; (2) refusing to instruct the jury on self-defense; (3) refusing to instruct the jury on circumstantial evidence; and (4) allowing the victim’s daughter to remain in the courtroom after the rule of sequestration was invoked. We find no merit in any of the issues raised and affirm, but write to address the rule of sequestration argument.

Testimony revealed the defendant and victim lived together with her two small children. While incarcerated for another crime, the defendant told an inmate that if the victim did not help him regain possession of his property and get out of jail, he was going to kill her with “one of those big kitchen knives.” He described his plans in more elaborate detail.

On the night of the murder, a witness walking down the street heard someone scream from the house occupied by the defendant and the victim. He followed the screams to the house where he heard the victim say: “[SJtop, Larry, stop. Stop. I’m sorry, I’m sorry, stop.” He looked through the window and saw them “tussling” before the defendant hit the victim.

A neighbor called the police the next day. When the officers arrived, no one answered the door. The officers looked through a window, saw blood, and called for backup. The doors were locked and secured; there was no sign of forced entry. The deputies followed the blood trail to the master bedroom where they found the deceased victim in a bed. Her throat was cut and she was stabbed multiple times. The State charged the defendant with first degree murder.

Prior to opening statements, defense counsel invoked the rule of sequestration. The State then asked whether defense counsel was referencing the victim’s daughter. The trial court responded: “Article 1, Section 16(b) of the [Florida Constitution] allows her to be in here even though she’s on the witness list. She is also a representative. So she can stay. I can’t exclude her.”

After initially agreeing with the court, defense counsel then argued that the victim’s daughter should be excluded because the victim’s parental rights were terminated. The court stated it was unaware if or why parental rights were terminated, but the victim was still her biological mother and the Constitution gave her the right to be present.

The State mentioned in its opening statement that the jury would hear the victim’s daughter say she called her mom’s cell phone. When the defendant answered, she asked him why he killed her mother. He told her he did not know. Ultimately, the victim’s daughter did not testify for the State, but did testify as a defense witness.

The defendant moved for a judgment of acquittal both after the State presented its case and after the defense case. The trial court denied both motions.

The defendant requested jury instructions on self-defense and circumstantial evidence, which the court denied. The court however agreed to give a justifiable homicide instruction.

The jury found the defendant guilty of first degree murder. The court sentenced the defendant to life imprisonment. From his judgment and conviction, the defendant now appeals.

As his last issue, the defendant argues the trial court erred in not excluding the victim’s daughter from the courtroom once the sequestration rule was invoked. He suggests the daughter did not qualify as next of kin because the mother’s parental rights had been terminated. The State responds that the defense waived the issue by referring to the girl as the victim’s daughter. More significantly, the State argues the defense was not prejudiced by her presence because the State did not call her as a witness. In fact, the defense called her as a witness.

We review a trial court’s decision to allow a witness to be excluded from the rule of sequestration for an abuse of discretion. Gore v. State, 599 So.2d 978, 986 (Fla. 1992).

At a party’s request, the court must order witnesses excluded from the courtroom to prevent them from hearing the testimony of other witnesses. § 90.616(1), Fla. Stat. (2014). Witness sequestration is designed to ensure fairness at trial by avoiding “the coloring of a witness’s testimony by that which he has heard from other witnesses who have preceded him on the stand.” Gore, 599 So.2d at 986 (quoting Spencer v. State, 133 So.2d 729, 731 (Fla. 1961)).

However, this right is not absolute and is subject to the trial court’s sound discretion. Gore, 599 So.2d at 986. “Of course, should the witness’ presence cause some prejudice to the accused, the witness should not be allowed to remain in the courtroom.” Id. In criminal cases, a witness that is the victim, the victim’s next of kin, or a lawful representative of such person may not be excluded unless the court determines such person’s presence to be prejudicial. § 90.616(2)(d).

Here, the trial court ruled that the victim’s daughter was allowed to stay in the courtroom under the Florida Constitution. Defense counsel argued that the victim’s parental rights had been terminated, rendering the exception to the sequestration rule inapplicable. There was no actual proof that the mother’s rights had been terminated. Nevertheless, the court acknowledged that the victim was still her biological mother and the Constitution gave her the right to be present. The trial court ruled in accordance with section 90.616(2)(d).

More importantly, the defendant failed to show how the victim’s daughter prejudiced his defense. She was not a material witness for the State, nor did the State call her in its case-in-chief. The State’s only point regarding the victim’s daughter was her phone call to the defendant, which the defense effectively rebutted at trial. Other evidence linked the defendant to the vie-tim’s death, including the defendant’s statements to other witnesses.

The defendant next asserts that the trial court erred by failing to hold a hearing on this matter. “Where the rule has been invoked, a hearing should be conducted to determine whether a witness’ exclusion from the rule will result in prejudice to the accused.” Gore, 599 So.2d at 986. Just as in Gore, the court did not hold a formal hearing, but did allow defense counsel to argue the point before deciding to allow the witness to remain. Id. This was sufficient.

Under the facts and circumstances of this case, the defense cannot establish the trial court abused its discretion in permitting the victim’s daughter to remain in the courtroom. We affirm.

Affirmed.

Ciklin, C.J., and Kuntz, J., concur.


author: Forst, J.

text:
    Donald WASHBURN, Appellant, v. Barbara Y. WASHBURN, Appellee.
    No. 4D16-1299
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2017]

      Gustavo E. Frances of The Law Office of Gustavo E. Frances, P.A., Fort Lauder-dale, for appellant.
    Barbara Washburn, Hollywood, pro se.
   Forst, J.

The appellant husband in this dissolution of marriage case argues that the trial court erred in its timesharing order regarding the parties’ children, in admitting certain evidence that related to the husband’s income, in imputing income to the husband, and in failing to impute more income to the appellee wife. We affirm the trial court’s determinations on timesharing and on the wife’s income without further discussion. As discussed below, we find merit in the husband’s evidentiary argument, and our reversal on that issue requires the reversal of the imputation of income to the husband.

Background

The husband and the wife petitioned and counter-petitioned for dissolution of marriage. In the lead up to the hearing on those petitions, the wife filed an exhibit list with the court stating that she may introduce “All documents produced by the parties during discovery pursuant to 12.285 mandatory disclosure requirements” as well as bank statements, checks, and other proof of payments made to the husband.

At the hearing, which due to time constraints dealt only with the issues of parental responsibility, timesharing, and child support, the wife attempted to introduce bank statements from the husband’s personal accounts. The wife had acquired these statements through the mandatory disclosure processes of dissolution of marriage proceedings. The husband objected to the admission of these records on hearsay grounds.

The trial court initially agreed with the husband, ruling that the statements were inadmissible. The wife then attempted to ask the husband (who was on the stand as a witness) to read the records into evidence. The husband objected, saying that “Counsel is trying to backdoor the hearsay objection.” The trial court disagreed, stating that the wife was allowed to “ask him questions about those items.” The husband clarified that his objection was not to questions about the bank records, but to the reading of the actual text of the records which would put the contents into evidence without admitting the documents. The trial court then warned that it was “about to renege on [its] ruling and allow all this in.” After a discussion clarifying that the records were part of the husband’s mandatory disclosure, the court admitted the records over objection.

The records that were introduced included information regarding check deposits made in late 2013 (the hearing was in late 2015). The husband was unable to provide a source for these deposits, instead simply stating that he “might have borrowed money from [his] grandmother.”

In addition to the information in the bank records, the husband testified as to the profits from his business over the past three years. He testified that the business posted profits of $28,335 in 2013, $32,222 in 2014, and $23,846 through August of 2015, all of which went to him as personal income.

In its oral ruling at the end of the hearing, the trial court held that the “only thing [it] could do” to calculate the husband’s income was to “add another four months” to the money earned through August of 2015, resulting in a total income for 2015 of $32,000.

Ten days after the hearing, the court called the parties back for a “correction” of its judgment. The trial court ruled that the money from the 2013 checks, revealed in the husband’s bank records, was additional income, and that it should be divided into three (the number of months over which the checks spanned) and added to the husband’s income. This additional monthly income was more than the monthly income earned by the husband from his business. The husband again objected on hearsay grounds to the appropriateness of using the bank records as the foundation for this extra income.

The husband filed a motion to disqualify the trial judge, which was granted. The day after the motion was granted, the husband moved to vacate the ruling and for a new trial. About a month later, the original judge who had been disqualified entered a Partial Judgment of Dissolution of Marriage with Parenting Plan, dated nunc pro tunc to the day of the second hearing. This order determined that the husband had a “base income of $32,000 per year,” and stated that it would add $2,966 per month based on “carefully reviewing ... the [h]usband’s ... bank statements.” The husband’s motion to vacate the ruling was eventually denied.

Analysis

The parties disagree about whether the husband’s bank records were properly admitted into evidence. The husband claims these records were hearsay and no exception to the hearsay rule was met. The wife argues that compliance with section 90.803(6)(c), Florida Statutes (2013), was satisfied because she gave notice that the documents would be entered into evidence. In a similar vein, the trial court’s ruling was based on the fact that the documents were disclosed pursuant to Florida Family Law Rule 12.285, and the court’s decision implied that any and all documents disclosed pursuant to that rule were per se admissible.

“The standard of review for evidentiary rulings is abuse of discretion.” Holt v. Calchas, LLC, 155 So.3d 499, 503 (Fla. 4th DCA 2015). However, whether evidence is hearsay and whether evidence fits within an exception to the hearsay rule are questions of law reviewed de novo. Browne v. State, 132 So.3d 312, 316 (Fla. 4th DCA 2014).

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801, Fla. Stat. (2015). “Except as provided by statute, hearsay evidence is inadmissible.” § 90.802. One statutory exception to hearsay is the business records exception. § 90.803(6). That exception requires testimony of certain facts or, alternatively, “a certification or declaration” of those facts. § 90.803(6)(a). “A party intending to offer evidence ... by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party ....” § 90.803(6)(c),

The bank records here were clearly hearsay—they were statements made by the husband’s bank regarding transactions made into and out of his accounts, introduced to show that those transactions occurred. The question before us is whether either Rule 12.285 (relied upon by the trial court) or section 90.803(6) (relied upon by the wife on appeal) allow the admission of those records in this case.

We hold first that the trial court erred in ruling that the records were admissible solely because they were disclosed pursuant to Rule 12.285. Documents that are mandatorily disclosed under that rule must still be admitted into evidence. See Fla. Fam. L.R.P. 12.285(g) (allowing the possible sanction of disclosed items being inadmissible, implying that admission is required). Nothing in Rule 12.285 suggests that disclosed items are per se admissible. In fact, the rules specifically contemplate that there may be some items disclosed pursuant to Rule 12.285 that might not be admissible. See Fla. Fam. L.R.P. 12.280 (stating that Florida Rule of Civil Procedure 1.280 governs family law discovery, and referring to “disclosure[s]” as a form of discovery); Fla. R. Civ. P. 1.280(b)(1) (“It is not ground for objection [to discovery] that the information sought will be inadmissible at the trial .... ”).

The fact that something has been disclosed pursuant to mandatory disclosure does not render it immune from the standard rules of evidence, including having to demonstrate a proper exception to hearsay if the evidence is in fact hearsay. Disclosure allows the opposing party access to the documents; it does not by itself allow the documents to serve as evidence. The trial court was therefore incorrect in its reason for allowing the husband’s bank records into evidence.

On appeal, the wife takes a different approach, arguing that the records here were properly admitted under the business records exception to the hearsay rule because her exhibit list constitutes a notice of certification or declaration under section 90.803(6)(c). The flaw in the wife’s argument is that, even assuming her exhibit list constituted “notice” under section 90.803(6)(c), there is no evidence in the record that there ever existed a certification or declaration. This certification or declaration would have had to meet the requirements of section 90.902(11). See § 90.803(6)(a). That section requires the certification or declaration to state that the record sought to be admitted was made at or near the time of the occurrence or from information transmitted by a person with knowledge, was kept in the-course of regularly conducted activity, and was made as a regular practice in the course of the regularly conducted activity. § 90.902(11). No document certifying or declaring these required items was ever submitted to the trial court. Therefore, even assuming the wife properly gave notice of her intent to introduce the documents through this exception, she never followed through to actually present the certification or declaration and admit them.

Because there was no basis for the admission of the hearsay bank records, we reverse the trial court’s evidentiary determination. Without those records in evidence, there is no competent, substantial evidence of the husband making any income other than that from his business. See Heard v. Perales, 189 So.3d 834, 836 (Fla. 4th DCA 2015) (setting forward the competent, substantial evidence standard). The trial court therefore erred in imputing $2,966 extra per month to Husband.

On remand, the trial court is directed to consider only the evidence properly admitted when determining the husband’s income. We note that it is not error for a court to attempt to annualize income based on year-to-date income, see Henry v. Henry, 191 So.3d 995, 997 (Fla. 4th DCA 2016), but caution the trial courts generally to ensure that the math used in the annu-alization process is correct. However, no reference should be made in this case to the husband’s bank records that the trial court erred in admitting.

Conclusion

We affirm the trial court’s determinations regarding timesharing and the wife’s income. We reverse the trial court’s admission of the husband’s bank records because no exception to hearsay was established. This reversal requires us to also reverse the trial court’s imputation of $2,966 gross monthly income to the husband because the only foundation for that amount was the improperly admitted evidence. We remand for the trial court to enter a new order with an income for the husband based on the evidence properly admitted, annualized as necessary.

Affirmed in Part, Reversed in Part, and Remanded for further proceedings consistent with this opinion.

Ciklin, C.J., and Taylor, J., concur.

      . Although this is not a final judgment, this Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii)b. which allows appeals of non-final orders dealing with "the rights or obligations of a party regarding child custody or time-sharing.” Although this opinion’s discussion focuses on the financial and eviden-tiary determinations made in the trial court, the judgment appealed also did involve time-sharing determinations, which we affirm without discussion.

      . The wife may properly make this argument on appeal because the question is whether the trial court was correct in its result, not whether it was correct in its reasoning. Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999).

      . We note that the wife’s exhibit list made no reference to a declaration or certification, and only stated that she intended to introduce the documents through some unstated means. Section 90.803(6)(c) states that a party must give written notice of “that intention,” after describing the intention as one "to offer evidence ... by means of a certification or declaration.” The wife’s exhibit list was therefore insufficient to serve as notice of an intention to introduce evidence by means of a certification or declaration, even if it were sufficient to serve as notice of an intention to introduce evidence.' Section 90.803(6)(c) requires not only notice of an intention to introduce, but also notice of the method of introduction. Such notice was not present in this case.

      . Should these records be properly entered into evidence at a later stage of the proceedings, such as the trial determining alimony, the trial court must engage in the two-step process for imputation of income. Koscher v. Koscher, 201 So.3d 736, 740 (Fla. 4th DCA 2016). Under that process, in order to impute income the court must first conclude that the termination of income was voluntary, and must then determine whether the subsequent lowered income resulted from a less-than-diligent effort to find employment paying the foregone higher amount. Id. The trial court must "set forth factual findings as to the ... source of imputed and actual income .... ” Id. at 741 (quoting Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005)). Even assuming here that the records had been properly admitted, the trial court did not follow this required process. There was no evidence introduced that would suggest that the husband voluntarily terminated an opportunity to earn $2,966 per month, nor was there any evidence that would suggest its source other than the husband’s guess that it may have been from his grandmother. Absent a finding of voluntary termination of income and a finding of a potential new source for that income, imputation is improper. This discussion should not be interpreted as a statement either way on the appropriateness of further attempts to introduce these records during later proceedings of this case.


author: Damoorgian, J. Ciklin, C.J.,

text:
    Todd MCLENDON and Shire Mclendon, Appellants, v. Gary R. NIKOLITS, as Property Appraiser for Palm Beach County, Florida, Appellee.
    No. 4D15-4003
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2017]

      Jacob T. Cremer and John N. Muratides of Stearns Weaver Miller Weissler Alha-deff & Sitterson, P.A., Tampa, for appellants.
    Neil B. Jagolinzer and Jeffrey M. Cly-man, Property Appraiser’s Office, West Palm Beach, for appellee.
   Damoorgian, J.

Todd and Shire McLendon appeal a final summary judgment in favor of the Palm Beach County Property Appraiser arising out of the Property Appraiser’s denial of the McLendons’ request for an agricultural tax classification. We reverse for entry of summary judgment in favor of the McLen-dons and their agricultural tax classification.

The following material facts are undisputed. The McLendons own a five-acre parcel in Palm Beach County. Since 2006, they have used the land to raise wild birds for sale as pets—an activity commonly known as aviculture. In furtherance of their business venture, the McLendons spent approximately $50,000 for the purchase of cages, sheds, fences, feeders, and structures for storage.

From tax year 2006 through 2012, the Property Appraiser granted the McLen-dons’ property an agricultural tax classification because of its dual uses for avicul-ture and cattle grazing.

However, in 2012, the Property Appraiser denied the agricultural tax classification for the requested 4.5 acres and instead issued the classification for only 2.25 acres, pursuant to section 193.461(1), Florida Statutes (2012). The McLendons appealed to the Palm Beach County Value Adjustment Board (“VAB”) in accordance with section 193.461(2). The VAB held that the initially requested 4.5 acres should be given an agricultural classification.

In 2013, the Property Appraiser denied an agricultural tax classification for the part of the McLendon parcel devoted to aviculture. In doing so, the Property Appraiser contended that his office mistakenly classified aviculture as an agricultural purpose for purposes of qualifying the property for an agricultural exemption. The McLendons challenged the Property Appraiser’s decision to the VAB. The VAB appointed a special magistrate and reversed the Property Appraiser’s 2013 tax year declassification of the McLendons’ av-iculture-related property. The Property Appraiser appealed the VAB’s decision to the circuit court by filing a Complaint to Reinstate Property Assessment, pursuant to section 194.036(1), Florida Statutes (2014). The Property Appraiser also denied the agricultural classification for tax year 2014.

In the circuit court appeal, both parties moved for summary judgment. The Property Appraiser argued that the tax exemption was limited to those activities listed in the definition of “agricultural purposes” in section 193.461(5), Florida Statutes (2013). Looking to the statute, the Property Appraiser reasoned that since the Legislature included only “poultry,” and not “avicul-ture,” in its list of activities that constitute “agricultural purposes,” the Legislature expressed its intent to limit agricultural activities to only those listed in the statute. The McLendons countered that the VAB correctly determined that the list of agricultural activities in section 193.461(5) was not intended to be an exclusive list because of the phrase “includes, but is not limited to,” preceding the listed activities.

The trial court, reviewing the decision of the VAB “de novo,” concluded that avi-culture was purposefully left out of the statute, and that bird-related activities qualifying as agricultural were limited to “poultry.” In reaching its conclusion, the court noted that “[a]ny ambiguity concerning entitlement to a tax exemption is to be resolved against the taxpayer.” It also expressed concern that including the breeding of pets, and more particularly pet birds, as an agricultural activity would lead to a floodgate of landowners engaging in pet breeding requesting an agricultural tax classification. Ultimately, the trial court entered summary judgment in favor of the Property Appraiser and against the McLendons. The effect of the summary judgment was that the McLen-dons lost their agricultural tax classification for 2013. This appeal follows.

Under Florida law, “only lands that are used primarily for bona fide agricultural purposes shall be classified agricultural.” § 193.461(3)(b), Fla. Stat. (2015). Subsection (5) of the statute includes a number of examples of the types of activities whose purpose is “agricultural” for tax exempt status:

For the purpose of this section, the term ‘agricultural purposes’ includes, but is not limited to, horticulture; floriculture; viticulture; forestry; dairy; livestock; poultry; bee; pisciculture, if the land is used principally for the production of tropical fish; aquaculture, including al-gaculture; sod farming; and all forms of farm products as defined in s. 823.14(3) and farm production.

§ 193.461(5), Fla. Stat. (emphasis added).

Turning to the issue before us, we are required to determine whether the phrase “but is not limited to” has more than one reasonable interpretation thereby creating an ambiguity. If it does, then the Property Appraiser is correct because we would be compelled to construe the ambiguity against the McLendons who are the taxpayers. See Markham v. PPI, Inc., 843 So.2d 922, 925 (Fla. 4th DCA 2003).

In Florida Power & Light Co. v. Florida Public Service Commission, 31 So.3d 860, 865 (Fla. 1st DCA 2010), the First District Court held that the phrase “include, but are not limited to” is inherently plain and unambiguous, depriving maxims of statutory construction from applying and issuing clear legislative intent that “the categories listed ... are not exhaustive.” We agree with the First District Court and conclude that in this case, the Legislature’s use of a similar phrase was meant to convey that the list of examples of the types of activities whose purpose is “agricultural” is not exhaustive. It did not create an ambiguity. Accordingly, section 193.461(5) is not ambiguous.

The term “farm product” as listed in section 193.461(5) is unambiguously defined by section 823.14(3) as “any ... animal ... useful to humans.” § 823.14(3)(c), Fla. Stat. (2013). We also note that in referencing section 823.14(3) through section 193.461(5), the Legislature also linguistically emphasized inclusivity in both sections using the phrase “includes, but is not limited to:”

‘Farm product’ means any ... animal ... useful to humans and includes, but is not limited to, any product derived therefrom.

§ 823.14(3)(c) (emphasis added).

Although aviculture is not explicitly listed in either statute, “animals useful to humans” being a “farm product” authorizes the agricultural exemption, if the McLendons are able to establish that avi-culture serves a function useful to humans. In support of their motion for summary judgment, the McLendons submitted affidavits from Howard Voren, who has over thirty-five years of aviculture experience, and Susan Clubb, who is a Board Certified Avian Specialist Doctor of Veterinary Medicine with approximately twenty years of experience.

Both affiants opined that aviculture is useful to humans for multiple reasons including companionship, concern for endangered species, entertainment, education, and scientific purposes. The trial court expressly conceded that aviculture provides birds used “for their entertainment or novelty value.” With this concession, unre-butted by the Property Appraiser, we conclude that at the very least the McLendons’ birds are “useful to humans” as entertainment and companions and, therefore, constitute a farm product as that term is used in sections 193.461(5) and 823.14(3).

The plain meaning of the statutes in play control. An “animal useful to humans” is plain in its broad meaning and intention, and encompasses the McLendons’ bird-breeding activities on its face. Accordingly, the McLendons’ property qualifies for an agricultural tax exemption for the part of their parcel used for aviculture.

Reversed and remanded.

Ciklin, C.J., concurs specially with opinion.

MAY, J., concurs.

Ciklin, C.J.,

concurring specially.

I concur with the majority opinion, but write to address the property appraiser’s concern about what he perceives as an expansive reading of the statute.

As seemingly absurd as it might become and despite the fact that with our ruling, any property owner might be able to stretch an agricultural classification to cover, as both the trial court and property appraiser lamented, “snakes, ferrets, horned toads or any other exotic ... pets,” section 193.461(5) is straightforward, clear and inclusive.

While—as the trial court understandably suggested—our reading of the statute could lead to “undeserving tax breaks,” we are ever remindful that policy and political questions on such public issues as tax exemptions are not the judiciary’s concern or within our purview.

By the use of the words, “includes, but is not limited to,” the Legislature has decided not to restrict what may be included under the umbrella of “agricultural purposes” but quite the contrary, expanded and broadened it to include “any plant ... or animal or insect useful to humans.” See §§ 193.461(5), 823.14(3)(c), Fla. Stat.

Could the statute be read to include ferrets and horned toads? Perhaps ... and our holding states just that.

It might also be read to include scorpions, bearded dragons, sugar gliders, tarantulas, hissing cockroaches, and hedgehogs. Even so, that is a matter that is legally irrelevant to our consideration of a statute designed to set forth the qualifications for ad valorem tax exemptions pertaining to agricultural use.

The Legislature’s choice of statutory language is extremely broad—but it is not ambiguous, and thus not subject to statutory construction. The property appraiser’s stated concern that the subject statute “should not be read as expansive and open-ended” is not, given the clear and unambiguous wording of the law, a concern that we are permitted to share.

If the statute lends itself to the need for a fix, it is not the judiciary’s role to do that. The job to fix, and prerogative to amend, lays squarely on the Legislature’s lap.

      . Section 194.035(1), Florida Statutes (2013) provides that “the board shall appoint special magistrates for the purpose of taking testimony and making recommendations to the board, which recommendations the board may act upon without further hearing.”

      . “The circuit court proceeding shall be de novo, and the burden of proof shall be upon the party initiating the action.” § 194.036(3), Fla. Stat. (2015).


author: Gerber, J.

text:
    Eric Zemblist BRUNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2704
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2017]

      Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, J.

The defendant appeals from his conviction for carrying a concealed firearm. He argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to prove the firearm was “on or about his person” or “readily accessible” to him at the time of his encounter with the police. We agree with the defendant’s argument. This case is consistent with the Second District’s decisions in Gehring v. State, 937 So.2d 169 (Fla. 2d DCA 2006), and Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996). This case also is distinguishable from our decision in State v. Smith, 67 So.3d 409 (Fla. 4th DCA 2011). Therefore, we reverse.

We present this opinion in four parts:

1. the facts and procedural history;
2. the applicable statutes on carrying a concealed firearm;
3. why this case is consistent with Geh-ring and Lamb\ and
4. why this case is distinguishable from Smith.

1. Facts and Procedural History

We present the facts in the light most favorable to the state as the non-moving party on the defendant’s motion for judgment of acquittal. See Evans v. State, 177 So.3d 1219, 1239 (Fla. 2015) (“In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.”) (citations and internal quotation marks omitted).

The police were dispatched to a home after a report of someone with a gun firing two shots in the air while outside of the home.

The first officer on the scene was told by a witness that the defendant was the shooter, drove away in a certain make and model car, and was possibly going to a certain apartment complex. Based on that information, the officer issued a BOLO describing the defendant, his car, and the apartment complex.

A second officer hearing the BOLO drove straight to the apartment complex. That officer, during his direct and cross examinations, described the events from that point as follows:

OFFICER: As I pulled into the apartment complex I saw [the defendant] getting out of [his car] ... I stopped him, handcuffed him, placed him in the back of my ear, read him Miranda.
PROSECUTOR: Okay, just got out of his vehicle?
OFFICER: Yes.
DEFENSE: But, Officer, you said he was already out of that vehicle and walking toward his—
OFFICER: Well, as I approached, he was getting out of the car .... Then walking away, then I stopped him.
DEFENSE: Okay. But he was already out by the time you stopped him, he was out of his vehicle and walking from it; is that correct?
OFFICER: Yes, after I watched him get out of his vehicle, yes.
DEFENSE: ' Okay. But you never stopped him in the vehicle?
OFFICER: No, ma’am.

The police asked the defendant where his gun was located. He said the gun was located in a gun storage box on the car’s back seat. The police found the box on the back seat, but the box was empty. After the police told the defendant that the box was empty, he said the gun was underneath the front seat, on the hump. The police found the gun in the car underneath the front seat. The gun would have been within the defendant’s reach while he was sitting in the driver’s seat. The gun was loaded. The defendant did not have a concealed firearm permit.

The police later determined that two shell casings discovered at the shooting scene were fired from the defendant’s gun.

After the state rested, the defendant moved for a judgment of acquittal. The defendant argued, in pertinent part:

I’m sure you know all the case law and in every single case where they found the Defendant guilty of having a concealed firearm under the seat, it’s when the officers asked them to step out. This is not such a case. And ... all the cases that are cited, when the defense moved for a judgment of acquittal, it’s always reversed on appeal because the Defendant was already out of the vehicle, placed in handcuffs. He was not in any type of easy, accessible reach to a handgun at that point in time, so this is a clear, clear case ... of a judgment of acquittal. There was no evidence presented by [the officer] that when he saw [the defendant], that he had to stop the vehicle. He said [the defendant] was already out of his vehicle walking towards his apartment and that he did put him in handcuffs and put him into the patrol vehicle. Subsequently, he had another officer go look and they did find the loaded handgun underneath the seat. But there was no easy accessibility of [the defendant] to the handgun, [so] it’s a clear JOA and I’m asking that you grant my motion.

The trial court denied the motion.

This appeal followed. The defendant, relying primarily on the Second District’s decisions in Gehring v. State, 937 So.2d 169 (Fla. 2d DCA 2006), and Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996), argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to prove the firearm was “on or about his person” or “readily accessible” to him at the time of his encounter with the police.

The state, relying primarily on our decision in State v. Smith, 67 So.3d 409 (Fla. 4th DCA 2011), responds that the defendant committed the crime of carrying a concealed firearm from the moment he placed the firearm underneath his car’s front seat when he left the shooting scene.

Our review is de novo. See Evans v. State, 177 So.3d at 1239 (“A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo.”).

We agree with the defendant’s argument. This case is consistent with Gehring and Lamb, and distinguishable from Smith.

Before addressing Gehring, Lamb, and Smith, we address the applicable statutes on carrying a concealed firearm.

2. The Applicable Statutes on Carrying a Concealed Firearm

Section 790.01(2), Florida Statutes (2014), provides, in pertinent part: “A person who carries a concealed firearm on or about his or her person commits a felony of the third degree .... ” Section 790.001(2), Florida Statutes (2014), defines a “concealed firearm,” in pertinent part, as “any firearm ... which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.” (emphasis added).

Three statutory exceptions existed at the time of this alleged crime.

First, “[section 790.01] does not apply to a person licensed to carry a ... concealed firearm ....” § 790.01(3), Fla. Stat. (2014). This first exception is not at issue here because it is undisputed that the defendant was not licensed to carry a concealed firearm.

Second, “it is lawful and is not a violation of s. 790.01 for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased ....”§ 790.25(5), Fla. Stat. (2014) (emphasis added). This second exception is not at issue here because it is undisputed that the defendant’s gun was not “securely encased” when it was found. See § 790.001(17), Fla. Stat. (2014) (“ ‘Securely encased’ means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.”).

Third, “it is lawful and is not a violation of s. 790.01 for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is ... not readily accessible for immediate use.” § 790.25(5), Fla. Stat. (2014) (emphasis added). Section 790.001(16), Florida Statutes (2014), defines “readily accessible for immediate use” as occurring when “a firearm or other weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person.” (emphasis added). This exception is at issue here.

3. Why This Case is Consistent with Gehring and Lamb

In Gehring, detectives seeking to arrest the defendant on a criminal charge were waiting outside of his residence when he arrived in a car. After the defendant exited his car, the detectives arrested him and placed him in a patrol car. The detectives then looked into the defendant’s ear. On the front passenger seat, they found a jacket covering a shotgun.

The detectives charged the defendant with the crime which they had been investigating, plus the crime of carrying a concealed firearm. At trial, the defendant failed to move for a judgment of acquittal on the carrying a concealed firearm charge. However, on appeal, the defendant argued that he was entitled to a judgment of acquittal on the carrying a concealed firearm charge because the shotgun was not “on or about his person” after he had exited his car and encountered the detectives.

The Second District reversed the defendant’s conviction. Then-Judge Canady, writing for the Second District, concluded even though the defendant failed to move for a judgment of acquittal, the error was fundamental because the evidence was insufficient to establish that the defendant committed the crime of carrying a concealed firearm. According to the court, “[tjhe evidence presented at trial did not show that the firearm was simultaneously carried by [the defendant] and concealed.” Gehring, 937 So.2d at 171.

In reaching the decision, the court relied on its earlier decision in Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996). In Lamb, the defendant was involved in a shooting and then returned home in his car. When he arrived, he removed the firearm from the front seat and placed it beneath the car’s driver’s seat. He then exited and locked the car and walked toward his home. An officer who had been following the defendant pulled up nearby, observed the defendant, and then arrested him. Later that evening, officers returned with the defendant to his home, the defendant informed the officers that his gun was in the car, and an officer retrieved the gun. On appeal, the defendant argued that the trial court erred in denying his motion for judgment of acquittal of the charge of carrying a concealed firearm. The court agreed with the defendant and reversed his conviction. The court reasoned: “At the time of his arrest, we conclude as a matter of law that the [defendant’s] firearm was not readily accessible to him .... [N]o view of the undisputed evidence supports the conclusion that he carried a concealed firearm ‘on or about his person’ in this instance.” Lamb, 668 So.2d at 668 (emphasis added).

The instant case is consistent with Geh-ring and Lamb. Here, the defendant was involved in a shooting and then drove to an apartment complex in his car. At some point between the time when he left the shooting scene and arrived at the apartment complex, he put the gun underneath the front seat. When he arrived at the apartment complex, he exited his car and walked toward the apartment complex. An officer who had come to the apartment complex observed the defendant walking from his car, and then arrested him. The defendant, after an initial misstatement, informed the police that his gun was located under the front seat. The police then retrieved the gun from under the front seat. Under these circumstances, like the Second District, we must conclude as a matter of law that, at the time of the defendant’s encounter with the police, his firearm was not “readily accessible for immediate use.” § 790.26(5), Fla. Stat. (2014). That is, no view of the undisputed evidence supports the conclusion that, at the time of the defendant’s encounter with the police, he had his gun “within such close proximity and in such a manner that it [could have been] retrieved and used as easily and quickly as if carried on [his] person.” § 790.001(16), Fla. Stat. (2014). Accordingly, we must reverse the conviction.

A Why This Case is Distinguishable from Smith

In Smith, a deputy stopped the defendant for speeding. At the deputy’s request, the defendant stepped out of his vehicle and accompanied the deputy to his patrol car, where the deputy waited for backup and conducted a license check. Upon discovering that the defendant’s license was suspended, the deputy asked him whether he had any weapons or drugs in the vehicle. The defendant informed the deputy that there was a firearm under the front passenger seat. The deputy returned to the defendant’s vehicle and retrieved the firearm from under the front passenger seat.

After the state charged the defendant with carrying a concealed firearm, the defendant filed a motion to dismiss the charge. At the hearing on the motion, the defendant argued that dismissal was warranted because the firearm was not “readily accessible” to him while he was outside the vehicle when the firearm was retrieved. The circuit court granted the defendant’s motion to dismiss. The court reasoned that once the defendant was outside his vehicle, the firearm no longer was “on about or his person.”

On appeal, the state argued the circuit court erred in granting the defendant’s motion to dismiss because there was a prima facie case that the firearm was “readily accessible” to the defendant at the time the deputy encountered the defendant. According to the state, the facts demonstrated that the firearm was under the seat beside the defendant when he was approached by the deputy.

We agreed with the state and reversed. We reasoned, in pertinent part:

[The defendant] would have us hold that based on Gehring ... and Lamb, anytime a firearm is retrieved from a vehicle after the person charged is out of the vehicle, the requirement that the firearm be “on or about the person” or “readily accessible” cannot be met. We decline to so hold.
The facts in Gehring ... and Lamb are distinguishable from the instant case. In those cases, the defendant was out of the vehicle when approached by law enforcement. Here, [the defendant] concealed the firearm underneath the passenger seat as the deputy approached the vehicle. We cannot say as a matter of law that the firearm was not “on or about his person” or not “readily accessible” to him. ...

67 So.3d at 414.

The instant case is distinguishable from Smith for the same reason why we found Gehring and Lamb to be distinguishable from Smith. Here, as in Gehring and Lamb, the defendant already was out of his vehicle when approached by law enforcement. Because the defendant already was out of his vehicle when approached by law enforcement, we cannot say as a matter of law that, at the time of their encounter, the firearm was then “on or about [the defendant’s] person” or “readily accessible” to him. See also Ensor v. State, 403 So.2d 349, 355 (Fla. 1981) (“The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm.”) (emphasis added).

Conclusion

Based on the foregoing, we agree with the defendant that the trial court erred in denying his motion for judgment of acquittal, because the state failed to prove the firearm was “on or about his person” or “readily accessible” to him at the time of his encounter with the police. We reverse and remand for entry of a judgment of acquittal.

Reversed and remanded.

Damoorgian and Klingensmith, JJ., concur.