author: GERBER, C.J.

text:
    STATE of Florida, Appellant, v. Peter PERAZA, Appellee.
    No. 4D16-2675
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Eric T. Schwartzreich and Anthony J. Bruno of Schwartzreich and Associates, P.A., Fort Lauderdale, for appellee.
   GERBER, C.J.

The state appeals from the circuit court’s final order granting a law enforcement officer’s amended motion to dismiss the indictment against him for manslaughter with a firearm. The officer was indicted after shooting a man who: (1) was walking down the street with an air rifle which appeared to be a firearm; (2) failed to obey officers’ commands to drop the weapon; and (3) pointed the weapon towards officers before being shot. The court found that the officer was entitled to immunity from prosecution under sections 776.012(1) and 776.032(1), Florida Statutes (2013), more commonly known as Florida’s “Stand Your Ground” law.

The state argues that, as held in State v. Caamano, 105 So.3d 18 (Fla. 2d DCA 2012), law enforcement officers are not entitled to seek immunity under the Stand Your Ground law. The state reasons that law enforcement officers already are provided a defense under section 776.05(1), Florida Statutes (2013), describing the justifiable use of force in making an arrest. We disagree with the state’s argument and with Caamano. Therefore, we affirm the circuit court’s order and certify conflict with Caamafio.

We present this opinion in four parts:

1) the circuit court’s order;
2) the parties’ arguments on appeal;
3) our examination of Caamano; and
4) our review.

1. The Circuit Court’s Order

The circuit court wrote a well-detailed thirty-six page order documenting the court’s findings of fact and conclusions of law. The court drafted the order after conducting a six-day evidentiary hearing. During the hearing, the court heard from thirty-one defense witnesses, including six witnesses tendered as experts, along with five state witnesses. The court further examined several exhibits including 911 recordings, poliee dispatch recordings, several dozen photographs, the air rifle, a .22 caliber rifle, and other items and demonstrative aids. The court also conducted a view of the scene.

a. The Circuit Court’s Findings of Fact

In the circuit court’s findings of fact, the court recounted the officer’s testimony as follows. In 2013, the officer was on road patrol when he heard a dispatch involving a disturbance with a weapon. The officer then heard a priority one alert broadcast. The officer approached the scene in a marked unit with overhead emergency lights on, but without activating the siren. The officer saw a man walking down Dixie Highway with what the officer believed was a shotgun or rifle. The officer was fearful that the man would open fire on vehicles. As the officer drove past the man, the officer believed that the man saw him, at which point the man began walking faster. Seeing the man move faster after viewing a marked unit made the officer think the man was headed somewhere with a purpose. The officer used his vehicle to block oncoming traffic on Dixie Highway. The officer then lost sight of the man. The officer feared the man was gaining a tactical advantage. The officer heard his sergeant say, “This is going to end bad,” which added to the officer’s fear. The officer and the sergeant began pursuing the man on foot. They spotted the man about twenty yards ahead. Both the officer and the sergeant shouted the commands “Stop!”, “Police!”, and “Drop the weapon!” The officer also could hear the sounds of other people, including children, from an adjacent apartment complex’s pool area. The officer closed his distance from the man to approximately five to ten feet. The officer’s heart was pounding and his thoughts were racing. The officer decided to react to the man’s actions. If the man moved, the officer would follow. If the man stopped, the officer would stop. The officer and the sergeant continued to command thé man to “stop” and “drop the weapon.” The man stopped, but he did not drop the weapon. The officer believed that the man was planning his next move. The man then brought the rifle over his head, turned towards the officer . and sergeant, and pointed, the rifle right at the officer. The officer fired his gun at the man. The officer could not recall how many times, he fired, but -came to learn he fired his gun three times. The man . died from the gunshots.

The circuit court found that the officer’s account of the incident was consistent with the other credible witnesses’ testimony and the physical evidence. The court , then found, by the greater weight of the evidence, that the man ignored repeated warnings to. stop. and. drop the weapon, turned towards the officers, and pointed his weapon at the officers, causing the officer to be in fear for his life and the lives of others, prompting the officer to shoot at the man, resulting in the man’s death.

b. The Circuit Court’s Conclusions of Law

In the circuit court’s conclusions of law, the coprt began by reciting the statutes at issue, that , is, sections 776.012(1), 776.032(1), and 776.05(1), Florida Statutes (2013).

In 2013, section 776.012(1) provided:

[A] person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony[.]

§ 776.012(1), Fla. Stat. (2013).

Section 776.032(1) provided, in pertinent part:

A person who uses force as permitted in s. 776.012 ... is justified in üsing such force and is immune from criminal prosecution and civil action for the use of such'force .... As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

§ 776.032(1), Fla. Stat. (2013).

Section 776.06(1) provided, in pertinent part:

. A law enforcement officer, or.any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful, arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:
(1) Which he or she reasonably believes to be necessary to .defend himself or herself or another from bodily harm while making the arrest[.]

§ 776.05(1), Fla. Stat. (2013).

Having reviewed the foregoing statutes, the circuit court then addressed the state’s argument that the officer could not avail himself of Stand Your Ground immunity under sections 776.012(1) and 776.032(1) because, as a law enforcement officer, his use of force was governed solely by section 776.05(1). The state’s argument rested on Caamano, which held, in pertinent part:

[I]f [the officer] is entitled to any immunity under either statute in this case, then such protection must flow from section 776.05. We hold that the specific language of section 776.05, titled “Law enforcement officers; use of force in making an arrest,” must apply to the behavior of law enforcement officers during the course of an arrest, rather than the language of section 776.032, which applies generally to the public at large.

Caamano, 105 So.3d at 22.

The circuit court rejected the state’s argument and concluded, as a matter of law, that the officer in the instant case was eligible to seek Stand Your Ground immunity under sections 776,012(1) and 776.032(1). The court articulated two reasons for its conclusion.

First, the circuit court reasoned that Caamano was distinguishable on its facts:

The decision in Caamano and Florida Statute 776.05 specifically applied to an officer’s use of force while making an arrest. “[I]t is undisputed that the alleged crime occurred during the course of an arrest.” Caamano at 20. The [officer] in this case was responding to an emergency and was investigating a disturbance .... Therefore, the limitation on law enforcement officers to proceed under section 776.05 to the exclusion of section 776.032 is distinguishable from the present case as such limitation only applies, if at all, to cases where the officer is in the- process of making an arrest. Therefore this Court finds that the [officer] herein is eligible to seek immunity under Florida Statute 776.012 and 776.032 in the instant case.

(emphasis added; footnote omitted).

Second, the circuit court “urge[d] the 4th DCA to reexamine the legal holding in Caamano.” The circuit court observed that Caamano applied the rule of statutory construction known as in pari materia to reconcile the differences between sections 776.05 and 776.032. See Caamano, 105 So.3d at 22 (“Because sections 776.05 and 776.032 address the use of justifiable force in the context of a criminal prosecution, the doctrine of in pari materia requires that we read them together and attempt to harmonize them.”). However, the circuit court found that Caamano “need not have gone into the doctrine of in pan materia at all.” The circuit court reasoned, in pertinent part:

In construing a statutory provision, the Court first looks to the actual language used in the statute. See State v. Bodden, 877 So.2d 680[, 685] ( Fla. 2004). If the plain meaning of the language is clear and unambiguous, then the Court need not delve into the principles of statutory construction unless that meaning leads to a result that is either unreasonable or clearly contrary to legislative intent. See State v. Burris, 875 So.2d 408[, 410] ( Fla. 2004). However, if the language is unclear or ambiguous, then the Court applies rules of statutory construction to discern legislative intent. See Bautista [v. State, 863 So. 2d 1180, 1185 (Fla. 2003) ].
Florida Statute 776.012(1) reads: “A person is justified in the use of deadly force ... [.]” and Florida Statute 776.032(1) grants immunity to “A person who uses force .... ” Emphasis added. There is nothing in the term “a person” that is unclear or ambiguous. A law enforcement officer under any reasonable understanding of our language qualifies as “a person.” Because the plain meaning is clear and unambiguous, the courts should refrain from trying to read it as “any person, other than a law enforcement officer” through [the] use of statutory construction doctrines, maxims and tools.

(footnote omitted).

Having concluded, as a matter of law, that the officer in the instant case was eligible to seek Stand Your Ground immunity under sections 776.012(1) and 776.032(1), the circuit court applied its findings of fact to conclude that the officer was entitled to Stand Your Ground immunity:

The last question to address is whether the defendant’s use of force in this case was objectively unreasonable. In Brosseau v. Haugen, 643 U.S. [194], 125 S.Ct. 596, 160 L.Ed.2d 583 (2004), the United States Supreme Court found it objectively reasonable for an officer to shoot a fleeing suspect out of fear [the suspect] endangered other officers on foot who[m] [the officer] believed were in the immediate area, the occupied vehicles in [the suspect’s] path, and any other citizens who might be in the area. Recently in Mullenix v. Luna, 577 U.S. -, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015), the United States Supreme Court also noted “the law does not require the officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.” Mullenix, [136 S.Ct. at 311], quoting Long v. Slaton, 508 F.3d 576[, 581] ([11th Cir.] 2007). “The court also rejected the notion that the deputy should have first tried less lethal methods ... ‘we think the police need not have taken that chance and hoped for the best[.]’ ” Mullenix, [136 S.Ct. at 311-12], quoting Long v. Slaton, [508 F.3d] at 583. The arguments advanced in Mullenix, Brosseau, and Long, supra, are no less compelling than the rationale for the use of force in the present case.
The defendant testified that a deadly weapon was pointed directly at him and towards other Deputies responding vrith him. He testified that he was in fear for his life, the lives of his fellow officers and the various people in the area, including children at the pool. Instruction 3.6(f) of the Florida Standard Jury Instructions on justifiable use of deadly force states in part:
In deciding whether the defendant was justified in the use of deadly force, you must consider the circumstances by which he was surrounded at the time the force was used. The danger need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could have been avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
Based on the court’s factual findings, the Court concludes that the [officer’s] application of deadly force in the instant case was objectively reasonable.
This Court therefore finds that the [officer] is entitled to immunity under F.S. 776.032 as a result of the justifiable use of deadly, force pursuant to F.S. 776.012 notwithstanding his occupation as a law enforcement officer.

(footnote omitted).

2. The Parties’ Arguments on Appeal

a. The State’s Arguments

The state primarily argues in this appeal that the circuit court improperly granted imrpunity as a matter of law to the officer pursuant to sections 776.012(1) and 776.032(1).

According to the state, because the officer was attempting an arrest, Caamano is factually on point and, pursuant to Caamano, the officer was not permitted to claim immunity pursuant to sections 776.012(1) and 776.032(1), which applies generally to all persons using force.

Instead, the state argues, because the officer was attempting an arrest, he was required to proceed pursuant to the more specific section 776.05(1), which applies to law enforcement officers using force in attempting an arrest.

According to the state, section 776.05(1) allowed the officer to assert a claim of qualified immunity, for which the officer would not be entitled to a pre-trial evidentiary hearing and dismissal as permitted under section 776.032(1), but only an affirmative defense at trial to be determined by the factfinder.

To support that point, the state cites to a number of civil cases holding that where issues of fact exist regarding whether an officer is entitled to immunity, summary judgment was not applicable and a trial determination was appropriate.

In sum, the state argues:

[T]his Court should follow the reasoning of Caamano and reverse the [circuit] court order because where the actions of a law enforcement officer using force in the line of duty are concerned, the specific language of [section] 776.05[(1)] should apply, not the general language .of [section] 776.032[ (1) ]. Additionally, because the question of whether qualified immunity pursuant to [section] 776.05[ (1) ] applies[ ] is for the jury not the judge, the order granting immunity must be reversed and this case remanded for a jury trial.

b. The Officer’s Arguments

In response, the officer argues the circuit court properly granted immunity to him pursuant to sections 776.012(1) and 776.032(1). Specifically, the officer argues that based on the circuit court’s findings of fact that he was responding to an emergency and not making an arrest, he was entitled to absolute immunity under section 776.032(1), and not merely an affirmative' defense' at trial under section 776.05(1). According to the officer, a court may not deny'a motion seeking absolute immunity under section 776.032(1) simply because factual disputes exist.

The officer also argues, to the extent Caamano found that allowing a law enforcement officer to seek absolute immunity under section 776.032(1) would abrogate section 776.05(1), Caamario was wrongly decided. According to the officer, even though section 776.05(1) allows law enforcement officers, charged with the use of excessive force during an arrest, to claim the right of self-defense at trial, law enforcement officers still may seek absolute immunity under section 776.032(1) before a trial. To support this argument, the officer seeks to harmonize sections 776.032(1) and 776.05(1) by proposing the following example:

A police officer goes to arrest a suspect. A scuffle ensues wherein the suspect reaches for the police officer’s gun. The police officer is able to wrestle the suspect’s hand away from his gun and ultimately ends up shooting the suspect. The police officer is charged with manslaughter .... The [officer] asserts self-defense and files a motion to dismiss based on Stand Your Ground immunity and there is a pretrial hearing on the matter. The Trial Court rules that immunity does not attach.. The [officer] then proceeds to trial and maintains a self-defense claim. At trial, the [officer], although he is a police officer, is still entitled to rely upon Florida Standard Jury Instruction 3.6(f) but is also entitled to the additional protection of [section] 776.05[ (1) ] which expands a police officer’s right to employ force to defend him[self] or herself or others.

The officer finally argues “it would be difficult to imagine that the Florida Legislature would intend to extend immunity to the general public in a self defense case yet not extend the same right to those who take an oath to uphold the law and protect the public[,] [t]hereby abrogating a law enforcement officer’s right to assert immunity and forcing them to assert an affirmative defense at trial.”

3. Our Examination of Caamano

'Because Caamano lies at the heart of the circuit court’s order and the parties’ arguments on appeal, we examine Caamano in greater detail.

In Caamano, the .state alleged, the following facts. As a street party was dispersing, one individual refused to comply with police orders to exit the street. An officer physically engaged the individual by escorting him to a grassy area beside the roadway and taking him to the ground, but the individual resisted. Two other officers assisted in detaining the individual by delivering knee and hand strikes and using a taser to “drive stun” him. Id, at 19.

While the individual was face down on the ground after having been beaten and tased by a group of law enforcement officers, Officer Caamano approached. Caamano raised his right foot and “br[ought] it down in a stomping motion” towards the individual’s legs, saying “put your hands behind your back” as he did so. Id.

The state alleged specifically that Caam-ano’s actions did not-assist the other officers with bringing'the individual into custody, and that the detained individual did not exhibit any active resistance toward Caamano. Instead, the state alleged that “his stomp served no purpose other than to bring unjustified and unnecessary force to [the individual], who was already engaged by three other officers.” Id.

The state charged Caamano with attempted battery, a second-degree misdemeanor.

Caamano moved to dismiss the charge, initially alleging immunity pursuant to section' 776.05(1), Florida Statutes (2010), which the Second District stated “provides qualified immunity for a law enforcement officer’s use of force in making an arrest.” (emphasis added). Id. Caamano later amended his motion to allege instead that he was immune from criminal prosecution pursuant to section 776.032(1), the Stand Your Ground law.

The county court denied the 'amended motion. Id. at 19-20. The: county court found that because Caamano was a law enforcement officer, and it was undisputed that the alleged crime occurred during the course of an arrest, he was not entitled to invoke the protection described in section 776.032(1). Id. at 20.

Caamano then petitioned the circuit court for a writ of prohibition, arguing that because section 776,032(1) does not expressly exclude law enforcement officers from its protection, he was entitled to invoke the protection of either statute. Id.

The circuit court granted Caamano’s petition, finding “nothing in the law that prevents [Gaamano] from asserting immunity pursuant to Section 776.032[ (1) ].” Id. The circuit court’s order vacated the county court’s order and directed the county court to conduct an evidentiary hearing pursuant to section 776.032(1).

The state filed a petition for writ of certiorari, arguing that the circuit court departed from the essential requirements of the law.

The Second District granted the petition, concluding that the circuit court departed from the essential requirements of the law in vacating the county court’s order. Id. at 19. The Second District reasoned:

In construing a statute, a court’s purpose is to give effect to legislative intent, which is the polestar that guides the court in statutory construction. In order to determine legislative intent, one must first look to the actual wording of the statute and give it its appropriate meaning. Then, the doctrine of in pari materia applies. This doctrine is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent. Consequently, related statutory provisions must be read together to achieve a consistent whole, and where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.
Further, when construing multiple statutes addressing similar subjects, the specific statute controls over the general. In Mendenhall v. State, 48 So.3d 740, 748 (Fla. 2010), the Florida Supreme Court identified that
[i]t is a well settled rule of statutory construction ... that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation the statute relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any.
To hold otherwise would render the specific language meaningless. See Mendenhall, 48 So.3d at 749.
Here, the State argues that the circuit court, acting in its appellate capacity, departed from the essential requirements of the law by applying the incorrect law. Specifically, the State argues that by ordering the county court to conduct an evidentiary hearing under section 776.032[ (1) ], the Stand Your Ground statute, rather than proceeding under section 776.05[ (1) ], the statute specific to law enforcement, the circuit court stripped section 776.05[(1)] of meaning. We agree.
[T]he circuit court departed from the essential requirements of the law by applying the incorrect law.... Because sections 776.05[(l)j and 776.032[ (1) ] address the use of justifiable force in the context of a criminal prosecution, the doctrine of in pari materia requires that we read them together and attempt to harmonize them.
Upon such a review, it is evident that if Caamano is entitled to any immunity under either statute in this case, then such protection must flow from section 776.05[ (1) ]. We hold that the specific language of section 776.05[(1)], titled “Law enforcement officers; use of force in making an arrest,” must apply to the behavior of law enforcement officers during the course of an arrest, rather than the language of section 776.032[ (1) ], which applies generally to the public at large. We agree with the State’s argument that holding otherwise would render the specific statute meaningless. See Mendenhall, 48 So.3d at 749. Accordingly, we grant the petition, quash the order of the circuit court, and remand the case for proceedings consistent with this opinion.

105 So.3d at 20-22 (other internal citations and footnote omitted).

4. Our Review

We employ a mixed standard of review. We review the circuit court’s findings of fact to determine if such findings are supported by competent substantial evidence, and we review the circuit court’s legal conclusions de novo. See Joseph v. State, 103 So.3d 227, 229-30 (Fla. 4th DCA 2012) (in reviewing a trial court’s order, on a motion to dismiss claiming immunity under section 776.032(1), “[t]he trial court’s factual findings are entitled to deference and must be supported by competent substantial evidence.... The trial court’s legal conclusions are reviewed de novo.”). To the extent we review the circuit court’s interpretation of sections 776.012(1), 776.032(1), and 776.05(1), our review also is de novo. See Bretherick v. State, 170 So.3d 766, 771 (Fla. 2015) (an issue of statutory interpretation under section 776.032(1) is reviewed de novo).

We conclude the circuit court’s findings of fact are supported by competent substantial evidence. The record supports the circuit court’s finding that the officer’s account of the incident was consistent with the other credible witnesses’ testimony and the physical evidence. The record also supports the circuit court’s finding that the man ignored repeated warnings to stop and drop the weapon, turned towards the officers, and pointed his weapon at the officers, causing the officer to be in fear for his life and the lives of others, prompting the officer to shoot at the man, resulting in the man’s death.

The circuit court’s most significant finding of fact is that the officer was responding to an emergency and investigating a disturbance, but was not making an arrest. That finding of fact is significant because, if true, it eliminates section 776.05’s application to this case and distinguishes this case from Caamano, where three officers already had detained the suspect before Officer Caamano used unnecessary force against the suspect.

While we conclude the finding of fact here that the officer was responding to an emergency and investigating a disturbance was supported by competent substantial evidence, we also recognize an argument could be made that the officer here was in fact making an arrest. As the circuit court found, after the officer and his sergeant spotted the man about twenty yards from them, both the officer and the sergeant shouted the commands “Stop!”, “Police!”, and “Drop the weapon!” The officer then closed his distance from the man to approximately five to ten feet, and continued to command the man to “stop” and “drop the weapon.” It is reasonable to conclude that the officer was taking these actions to make an arrest, and not merely to investigate the man’s intentions.

Assuming that the officer was making an arrest, then we are squarely faced with the legal question which the circuit court called to our attention. That is, whether Caamano correctly held that if an officer is entitled to any immunity during the course of an arrest, then such protection must flow from section 776.05, which applies specifically to law enforcement officers, rather than section 776.032, which applies generally to the public at large.

We disagree with Caamano. We hold that a law enforcement officer, who while making a lawful arrest, uses deadly force which he or she reasonably believes is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony, is not limited to invoking a defense under section 776.05(1), but is also permitted to seek immunity from criminal prosecution under sections 776.012(1) and 776.032(1).

In reaching our holding, we agree with the circuit court that sections 776.012(l)’s and 776.032(1)⅛ plain language dictates this conclusion. In 2013, section 776.012(1) provided:

[A] person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony[.]

§ 776.012(1), Fla. Stat. (2013) (emphasis added).

Section 776.032(1) provided, in pertinent part:

A person who uses force as permitted in s. 776.012 ... is justified in using such force and is immune from criminal prosecution and civil action for the use of such force .... As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

§ 776.032(1), Fla. Stat. (2013).

As the circuit court found, “There is nothing in the term ‘a person’ that is unclear or ambiguous. A law enforcement officer under any reasonable understanding of our language qualifies as ‘a person.’” Because sections 776.012(1)’s and 776.032(1)’s plain language is clear and unambiguous, the officer in this case was permitted to seek immunity from criminal prosecution under sections 776.012(1) and 776.032(1). See McNeil v. State, 215 So.3d 55, 58 (Fla. 2017) (“When the plain language of the statute is unambiguous and conveys a clear meaning, the statute must be given its obvious meaning.”).

The source of our disagreement with Caamano appears to arise from the following statement from that case: “In order to determine legislative intent, one must first look to the actual wording of the statute and give it its appropriate meaning. Then, the doctrine of in pan materia, applies.” 105 So.3d at 20 (emphasis added). Respectfully, to suggest that the doctrine of in pari materia applies in every case is incorrect as a matter of law. As the circuit court correctly found in this case, because sections 776.012(1)’s and 776.032(1)’s plain language is clear and unambiguous, Caamano “need not have gone into the doctrine of in pari materia at all.” See English v. State, 191 So.3d 448, 450 (Fla. 2016) (“When the statutory language is clear or unambiguous, this Court need not look behind the statute’s plain language or employ principles of statutory construction to determine legislative intent.”) (emphasis added).

Having concluded, as a matter of law, that the officer in the instant case was eligible to seek Stand Your Ground immunity under sections 776.012 and 776.032, we also conclude, based on the circuit court’s findings of fact, that the officer was entitled to Stand Your Ground immunity. We agree with the circuit court that the officer reasonably believed using deadly force was necessary to prevent imminent death or great bodily harm to himself, his sergeant, and the nearby citizens. We adopt the circuit court’s well-articulated reasoning in this regard as our own.

We also agree with the officer’s argument in response' to the state’s secondary argument on appeal. That is, as the officer argues, a court may not deny a motion seeking immunity under sections 776.012(1) and 776.032(1) simply because factual disputes may exist. See Dennis v. State, 51 So.3d 456, 462 (Fla. 2010) (“Section 776.032 does not limit its grant. of immunity to cases where the material facts are undisputed.”).

Conclusion

Based on the foregoing, we affirm the circuit court’s final order granting the officer’s amended motion to dismiss the indictment against him for manslaughter with a firearm. Specifically, we affirm the circuit court’s conclusion that the officer was entitled to immunity from prosecution under sections 776.012(1) and 776.032(1), Florida Statutes (2013), more commonly known as Florida’s “Stand Your Ground” law. We also affirm oh the state’s second argument on appeal without further discussion.

We certify conflict with Caamano. We also certify to our supreme court the following question of great public importance;

WHETHER A LAW . ENFORCEMENT OFFICER, WHO WHILE MAKING A LAWFUL ARREST, USES DEADLY FORCE WHICH HE OR SHE REASONABLY BELIEVES IS NECESSARY TO PREVENT IMMINENT DEATH OR GREAT BODILY HARM TO HIMSELF OR HERSELF OR ANOTHER OR TO PREVENT THE IMMINENT COMMISSION OF A FORCIBLE FELONY, IS LIMITED TO INVOKING A DEFENSE UNDER SECTION 776.05(1), OR IS ALSO PERMITTED TO SEEK IMMUNITY FROM .CRIMINAL PROSECUTION UNDER SECTIONS 776.012(1) AND 776.032(1), FLORIDA STATUTES (2013), MORE COMMONLY KNOWN AS FLORIDA’S “STAND- YOUR GROUND” LAW.

Affirmed; conflict certified; question of great public importance certified.

Gross and Kuntz, JJ., concur.


source: Caselaw Access Project

author: Forst, J.

license: Public Domain

text:
    Gary L. SMITH, Appellant, v. Vernia SMITH, Appellee.
    No. 4D16-2969
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Lane Weinbaum of Weinbaum P.A., Plantation, for appellant.
    Vernia Smith, Boca Raton, pro se.
   Forst, J.

Appellant Gary Smith (“Former Husband”) raises four issues on appeal of the trial court’s final judgment of dissolution of the parties’ marriage. We find merit with respect to Former Husband’s contention that the trial court erred in awarding ap-pellee Vernia Smith (“Former Wife”) $7,501 in attorney’s fees, in valuing the marital pension to be worth $102,000 at the time of filing the complaint, and equitably distributing $50,000 from the marital pension to Former Wife. Accordingly, we reverse the dissolution order in part and remand these issues to the trial court, as set forth below. We affirm without further discussion the other issue raised on appeal.

Background

On September 13, 2013, Former Wife filed her amended petition for dissolution of marriage. She and Former Husband had been married for thirteen years. The parties had no children. In her petition, Former Wife requested alimony, equitable distribution, and attorney’s fees. She also alleged that Former Husband dissipated a certain marital asset, his retirement pension, throughout the marriage. Former Husband answered, in turn requesting the same relief: alimony, equitable distribution, and attorney’s fees. He denied dissipating the pension.

At the bench trial, the parties first discussed the possible equitable distribution of Former Husband’s retirement pension. Former Wife, appearing pro se, alleged that Former Husband dissipated the pension he received from his former employer, which was worth approximately $102,000 by the time Former Husband’s employment was terminated in 2012. Former Wife admitted exhibit thirteen, which she explained showed Former Husband withdrawing money from his bank accounts months before the dissolution petition. On some days, she noted, Former Husband withdrew thousands of dollars. Later at trial, Former Husband explained he made these withdrawals to pay various litigation costs associated with the marriage dissolution, as well as living expenses. Moreover, he referenced an agreement between himself and Former Wife, in which Former Wife agreed to allow Former Husband to withdraw half of the pension, which was apparently $52,397.07. Former Wife countered, explaining that on one occasion, she overheard a phone call in which Former Husband and his sister talked about opening a joint bank account, presumably so that Former Husband could “hide” the pension funds.

The parties then discussed exhibit five, which Former Wife argued showed the existence and value of the pension at the time she filed for dissolution. Former Husband’s counsel admitted that there was. a pension and that it was a marital asset. However, Former Husband disputed the pension’s value, explaining that at the time of the dissolution petition, the pension was worth significantly less than $102,000. Former Wife disagreed—even though she had earlier said that Former Husband dissipated the pension before the filing of the complaint. She told the trial court, “I have given you evidence [of] what the value [of the pension] was on the date of filing. It was $102,000.” Former Husband’s counsel then stated, ‘Tour Honor, I have not seen $102,000 anywhere.” At that point, Former Wife directed the trial court to “the documents before you, your Honor. It should have his separation date and it has that.... There it is.” Former Wife was referring to exhibit five, which appeared to be a summary of Former Husband’s pension sent to him by his former employer’s human resources department. The document estimated the value of Former Husband’s pension to' be approximately $102,000 beginning May 1, 2012.

The parties also discussed attorney’s fees at trial. Former Wife was represented by an attorney for part of the marriage dissolution proceedings. The attorney had previously filed a motion for entry of a charging lien in the amount of $7,344.71, and explained in her motion that she would submit an affidavit detailing her attorney’s fees and costs. However, she never did. Still, Former Wife submitted a billing statement, which showed that her attorney charged $350 an hour, and which described the kinds of services rendered to account for 1.70 hours, or for $595 charged: The statement' did not provide any information for why the attorney charged $6,749.71 as a “Past Due Balance.” Former Wife, who is an attorney, then testified as to the reasonableness of the fees.

After trial, the court entered its final judgment of dissolution of marriage. The court found that “[t]he Husband’s pension is valued at $102,000 as of the date of filing.” Then, in a separate section, the court ordered Former Husband to pay Former Wife $2,000 a month for a period of twenty-five months. The court did not specifically state that the pension was the source of these payments, or that the pension was even á marital asset. Instead, the court stated that it was distributing a “retirement account.” Still, earlier at trial, the court explained that Former Husband owed Former Wife “$50,000 for her half of the pension.” In its final judgment, the court also ordered Former -Husband to pay Former Wife’s former counsel $7,501 in attorney’s fees, in monthly increments of $300.

Former Husband filed a motion for rehearing, alleging substantially the same arguments he now makes on appeal. The trial court summarily denied the motion.

Analysis

1. ■ Attorney’s fees

“The standard of review of an award of attorneys’ fees is abuse of discretion.” Diwakar v. Montecito Palm Beach Condo. Ass’n., 143 So.3d 958, 960 (Fla. 4th DCA 2014). The award must be supported by competent, substantial evidence. Id.

Former Husband first argues on appeal that the trial court erred for three reasons in awarding $7,501 in attorney’s fees to Former Wife’s former counsel. We find merit in all of his arguments.

First, the tidal court failed to address Former Husband’s ability to pay the fees award. Section 61.16(1), Florida Statutes (2016), requires the trial court. to “consider[ ] the financial resources of both parties” when ordering attorney’s fees. This means that “[w]hen determining entitlement to attorney’s fees and costs in a dissolution of marriage proceeding,, in order ‘to ensure that both parties have similar access to competent legal counsel, the trial court must look to each spouse’s need for suit money versus each spouse’s respective ability to pay.’ ” Patterson & Maloney v. Gumberg, 828 So.2d 403, 405 (Fla. 4th DCA 2002) (quoting Rosen v. Rosen, 696 So.2d 697, 699 (Fla. 1997)).

Here, the trial court noted in its final judgment that Former Husband’s net monthly income was $7,419.09, and that his gross monthly expenses were $6,168.56. Elsewhere, the trial court also ordered Former Husband to pay a monthly $2,000 equalizing payment, to Former Wife. It is unclear how Former Husband, who. only has $1,250.53 remaining .each month as surplus after subtracting his gross monthly expenses from his net monthly income, could pay the attorney’s fees award on top of the equalizing payment. Like in Beckstrom v. Beckstrom, 183 So.3d 1067 (Fla. 4th DCA 2015), “the trial court found the former wife was in need of attorney’s fees, but did not make a finding as to" the former husband’s ability to pay. We therefore reverse the judgment 'on this issue and remand the case to the trial court to make the requisite written findings.” Id. at 1069; see also DeLillo v. DeLillo, 848 So.2d 454, 454 (Fla. 4th DCA 2003) (similar).

Second, there was also no evidence to support part of the fees award. We begin by noting that Former Husband never argued below that there was insufficient evidence to support the award. However, he did so on appeal, and could raise this issue at this stage of the case pursuant to Florida Rule of Civil Procedure 1.530(e). See also Diwakar, 143 So.3d at 961 (citing Rule 1.530(e) to explain that an “argument that there was simply no competent, substantial evidence to support the [attorney’s fees] award may be raised for the first time on appeal”).

At trial, there was competent, substantial evidence supporting $595 of the $7,501 in attorney’s fees Former Wife sought: the billing statement detailing 1.70 fee hours at a $350/hour rate. However, the statement did not provide any information regarding why Former Wife’s counsel charged an additional $6,749.71 in fees. Without any evidence for this portion of the fees, we remand for an additional hearing to allow Former Wife the opportunity to present evidence for it. See Diwakar, 143 So.3d at 961 (“[W]hen the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some [other] essential evidentiary support ... the appellate court will reverse and remand the order for additional findings'or an additional hearing, if necessary.” (quoting Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998))).

Third, although we find the trial court erred in awarding the fees because it failed to calculate them by using the lodestar method, Former Husband did not preserve the issue on appeal. However, because we are remanding for a new hearing on fees, we také the opportunity to advise the trial court to include a lodestar calculation in its new order should it again decide to award fees. As we have explained, “[i]t is well-settled that an award of attorney’s fees must ... contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.” Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003).

2. Valuation of the marital pension

“The valuation of an asset or debt in connection with equitable distribution is generally reviewed for- an abuse of discretion.” Dorworth v. Dorworth, 176 So.3d 336, 338 (Fla. 6th DCA 2015). The valuation must be supported by competent, substantial evidence. Id.

Former Husband argués that there was no evidence to support the trial court’s valuation of the marital pension as being $102,000 at the time of filing. Although we recognize the trial court’s discretion on this matter, we agree that it erred in valuing the pension. A final judgment of any distribution of marital assets or liabilities “shall be supported by factual findings in the judgment or order based on competent substantial evidence ....” § 61.075(3), Fla. Stat. (2016). “Specific factual findings underlying the court’s determinations are not required to be expressly stated where the record contains competent evidence to support the trial court’s findings.” Jordan v. Jordan, 127 So.3d 794, 796 (Fla. 4th DCA 2013).

Here, the trial court stated in its final judgment that “[t]he husband’s pension is valued at $102,000 as of the date of filing.” As such, the court clearly indicated that it was valuing the pension at the date of filing, which was either August 5, 2013, the date of filing the original complaint, or September 13, 2013, the date of filing the amended complaint. However, there was no evidence that the pension was worth $102,000 at either time. In fact, the evidence showed the opposite: that the pension was worth significantly less. For one, both parties testified that the pension account had less than $102,000 by the time of filing. Former Wife argued that months before the dissolution petition, Former Husband purposefully depleted the pension, stating, “[i]n anticipation of me filing the petition, he dissipated all of the pension.” Id. Former Wife also relied on exhibit thirteen, which showed Former Husband withdrawing thousands of dollars from his bank accounts, which presumably contained money from the pension, months before the petition. The exhibit showed that in August of 2013, near the date of filing, the bank account’s balance was $5,502.81. Reading from the same page of the exhibit, the court told Former Wife, “Ma’am, as of the date of filing you said it was worth approximately $5,500, the 401(k), okay.” Former Wife agreed.

Perhaps the trial court sought to value the pension based on its value more than, a year before the filing date, for which there was evidence to support the $102,000 valuation. Pursuant to section 61.075(7), Florida Statutes, the court certainly could have done this. However, we cannot presume the trial court sought to do so in light of the trial court explicitly writing in its final judgment that it valued the pension “as of the date of filing” the petition. Moreover, the trial court gave no indication for why picking an alternative date would have been “just and equitable under the circumstances.” Id. On remand, the trial court must rectify the inconsistency in findings related to the value of the pension.

3. Equitable distribution of the marital pension

“Decisions of the trial court concerning the equitable distribution of marital assets are reviewed under an abuse of discretion standard.” Pomeranz v. Pomeranz, 901 So.2d 895, 896 (Fla. 4th DCA 2005).

Former Husband’s last argument on appeal is that the trial court committed several errors in awarding $50,000 to Former Wife as part of the equitable distribution scheme. For almost all of the reasons argued by Former Husband, except one which was not preserved, we agree. First and foremost, because we are reversing since there was no evidence supporting the valuation of the marital pension, we must reverse the pension’s distribution. The trial court could not distribute $50,000 from the pension unless it expressly chose to value the pension based on an earlier date at which the pension was worth at least that amount, or unless it expressly found that Former Husband dissipated the asset. We have already dealt with the first scenario in our previous section, finding that the court did not use a pre-petition date. Now, we deal with the second.

“[I]t is error to include in the equitable distribution scheme assets or sums that have been diminished or depleted during the dissolution proceedings unless the depletion was the result of misconduct.” To include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct.

Weymouth v. Weymouth, 87 So.3d 30, 36 (Fla. 4th DCA 2012) (citation omitted) (quoting Tillman v. Altunay, 44 So.3d 1201, 1203 (Fla. 4th DCA 2010)). Here, the evidence was clear that the pension was worth considerably less than $102,000 by the time of filing. Thus, in order to award $50,000 to Former Wife, the court first needed to make a specific finding of dissipation. Since the court made no such finding in its final judgment, it erred in distributing the equalizing payment as it did.

The trial court also failed to consider Former Husband’s actual ability to pay the equalizing payment. See Fortune v. Fortune, 61 So.3d 441, 446 (Fla. 2d DCA 2011). In fact, as discussed above, it appears Former Husband cannot pay the monthly $2,000 amount given that he only has a surplus of $1,250.53 remaining each month after subtracting his gross monthly expenses from his net monthly income. As the final judgment also required Former Husband to pay $300 a month in attorney’s fees, his ability to pay the $2,000 monthly is all the more doubtful. See Abramovic v. Abramovic, 188 So.3d 61, 64 (Fla. 4th DCA 2016).

As a final matter, we note the trial court failed to specifically identify in its final judgment that the pension was the marital asset serving as the source of the equalizing payments. See § 61.075(3), Fla. Stat. The court only wrote that a “retirement account” was the source. A review of the record makes it likely that the court was referring to the pension, but we would rather not presume that fact on appeal.

Conclusion

We reverse and remand the final judgment of dissolution of marriage. First, we reverse the award of attorney’s fees because the trial court failed to find that Former Husband had an actual ability to pay the fees, and because there was no competent, substantial evidence for part of their amount. We remand for a new hearing to address these issues.

Second, we reverse because the trial court incorrectly valued the pension at the time of filing, and, by way of such mistake, distributed incorrect equalizing payments. In order for the trial court to distribute $50,000, it should have explicitly made a finding that it was doing so based on the pension’s value at an earlier date, or based on a finding of dissipation. Since the trial court did neither, we reverse. In addressing this issue on remand, the trial court must make a determination with respect to whether Former Husband had the actual ability to pay the equalizing payment.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Affirmed in Part, Reversed and Remanded in Part.

Gerber, C.J., and Warner, J., concur.

      . Former Husband's counsel summarized:
      "The testimony by the Respondent [Former Husband] was that it wasn’t dissipation, it was depletion. There was $40,000 in attorney’s fees. This is a long divorce case. Aside from the attorney’s fees, there are living expenses that the Respondent has to pay for.”

      . Former Husband explained in an answer to an interrogatory: "The $57,000 distribution I took from my 401K Fidelity account in 2013 was approved by my Wife. She signed a Waiver authorizing me to take my half of my pension amount. The signed Waiver is on file with [my employer].”

      . See Brewer v. Solovsky, 945 So.2d 610, 611 (Fla. 4th DCA 2006) ("Competent evidence includes invoices, records and other information detailing the services provided.”).

      . See Faircloth v. Bliss, 917 So.2d 1005, 1006 (Fla. 4th DCA 2006) ("Generally, a fee award must be supported by competent evidence which must include evidence detailing the services performed and the reasonableness of the fee.”).

      . Under the lodestar method, a trial court is required "to determine a ‘lodestar figure’ by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party’s attorney.” 22nd Century Props., LLC v. FPH Props., LLC, 160 So.3d 135, 142 (Fla. 4th DCA 2015) (quoting Ottaviano v. Nautilus Ins. Co., 717 F.Supp.2d 1259, 1264 (M.D. Fla. 2010)).

      . Though Former Wife argued below that the pension was worth $102,000 at the time of filing the complaint, the evidence relied on for that proposition—the pension document— only estimated the value of the pension more than one year before filing. We, also note that the introduction of all the' other evidence, including Former Husband's bank accounts, as well as a prior contract in which Former Wife allowed Former Husband to withdraw half of the pension before the instant lawsuit for purposes irrelevant on appeal,- demonstrate that the pension was worth considerably less than $102,000 at the time of filing.

      . Former Husband never argued below or in his motion for rehearing that the trial court failed to take into account any of the factors listed in section 61.075(1), Florida Statutes, when equitably distributing the pension.


author: FORST, J.

text:
    Troy W. KLEIN, Appellant, v. Alan D. ROMAN and Deborah W. Roman, Appellees.
    Nos. 4D15-4783 and 16-1880
    District Court of Appeal of Florida, Fourth District.
    [September 6, 2017]

      Troy W. Klein of Law Office of Troy W. Klein, P.A., West Palm Beach, pro se.
    Jeffrey S. D’Amore and Rosemarie W. Guerini of D’Amore Law'Firm, P.A., Palm Beach Gardens, for appellee Alan D. Roman.
    Jill G. Weiss of Jill G. Weiss, P.A., Palm Beach Gardens, for appellee Deborah W. Roman.
   FORST, J.

Appellant Troy Klein makes several arguments on appeal related to the trial court’s order granting Appellee Alan Roman’s motion to release Appellant’s charging lien and award sanctions. We write only to address two of Appellant’s arguments on appeal: (1) whether the trial court erred by awarding attorney’s fees to Appellee without eliciting the testimony of an independent expert, and (2) whether the court erred by failing to expressly apply the “lodestar” method to calculate those fees. We find the first argument meritless, but reverse, the second. We affirm all other issues on appeal without discussion.

Background

Appellant was the attorney for Appel-lee’s former wife in a dissolution of marriage proceeding. Because of unpaid attorney’s fees owed under a contract with Appellee’s former wife, Appellant filed a notice of charging lien asserting an interest in the former wife’s two homes. However, as part of the marital settlement agreement, Appellee received one of the properties.

When Appellee sought to sell that property, he learned of the lien and sent a letter to Appellant demanding a release, to no avail. Appellee subsequently filed a motion to release the lien and award sanctions. The trial court held a hearing at which Appellee’s counsel testified regarding the amount of attorney’s fees he incurred in the effort to have the lien removed. Counsel submitted an affidavit detailing his hourly rate, the number of hours worked, and the type of work he had done.

The trial court granted Appellee’s motion, and ordered Appellant to release the charging lien and to pay Appellee $5,146.50 in attorney’s fees. Afterwards, Appellant submitted a motion for rehearing, making almost all the same arguments he now makes on appeal. The trial court denied the motion.

Analysis

“The standard of review of an award of attorneys’ fees is abuse of discretion.” Diwakar v. Montecito Palm Beach Condo. Ass’n., 143 So.3d 958, 960 (Fla. 4th DCA 2014). The award must be supported by competent, substantial evidence. Id.

Appellant first argues that the trial court’s award of attorney’s fees was erroneous given that Appellee “failed to present any independent expert testimony regarding the reasonableness of the attorney’s fees being sought despite the well-established legal requirement to do so.” We need not consider the merits of Appellant’s argument, as it was unpreserved. Appellant failed to make a timely, contemporaneous objection at the fee hearing regarding Appellee’s failure to provide independent expert testimony. See San Pedro v. Law Office of Paul Burkhart, 168 So.3d 299, 300 (Fla. 4th DCA 2015) (“To the extent that Appellants now contest the admission of the exhibits and the lack of testimony, those arguments were waived when Appellants failed tó object at the hearing.”); Diwakar, 143 So.3d at 960 (“To the extent Diwakar argues on appeal that the attorneys’ fee award was erroneous in the absence of testimony from a fees expert plus the attorney who performed the work, the argument was waived when Diwakar failed to object at trial.”); DM Records, Inc. v. Turnpike Commercial Plaza, Phase II, Condo. Ass’n, 894 So.2d 1030, 1031 (Fla. 4th DCA 2005) (“If we were to allow these issues to be raised for the first time on appeal, where there was no objection in trial court, it would be unfair to the party seeking fees and the trial judge and result in unnecessary appeals.”);

Even if the issue had been preserved, Section 61.16(1), Florida Statutes (2016), appears to control, given the nature of the underlying ease from which this award of attorney’s fees stems. Under that statute, “[a]n application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter.” § 61.16(1), Fla. Stat. (2015) (emphasis added).

Although we affirm the first issue, we reverse the second. As both parties correctly recognize, the trial court erred by failing to expressly apply the lodestar method when calculating the amount of attorney’s fees in its order. “It is well-settled that an award of attorney’s fees must ... contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.” Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003). There, because the trial court failed to include an express lodestar calculation, we reversed and remanded for the trial court to enter a new written order containing. the necessary calculation. Id. We do the same here. We also note, as we did in Simhoni, that “[t]he court need not hold a new evidentiary hearing if it is able to enter a written order from its notes or a transcript of the original fees hearing.” Id. Appellee’s counsel’s affidavit detailing why he charged $5,146.50 in fees should enable the court to enter a new written order without holding a new hearing.

Conclusion

Because the trial court failed to expressly calculate its attorney’s fees award by way of the lodestar method, we reverse and remand for the trial court to enter a new written order. The trial court’s order is otherwise affirmed.

Affirmed in Part, Reversed and Remanded in Part.

Gerber, C.J., and Warner, J., concur.

      . Chapter 61 governs the award of attorney’s fees in dissolution of marriage, support, and time-sharing cases.


author: Per Curiam.

text:
    Tobie J. MAGEE, Appellant, v. SEMINOLE TRIBE CLASSIC CASINO and Seminole Tribe of Florida, Appellees.
    No. 4D17-2139
    District Court of Appeal of Florida, Fourth District.
    [September 6, 2017]
    Tobie J. Magee, Hollywood, pro se.
    Mark D. Schellhase of GrayRobinson, P.A., Boca Raton, and Alissa M. Ellison of GrayRobinson, P.A., Tampa, for appellees;
   Per Curiam.

Affirmed. See Fla. R. App. P. 9.315(a).

Damoorgian, Conner and Klingensmith, JJ., concur.


author: Kuntz, J.

text:
    Andrea K. GILLETTE n/k/a Andrea Economus, Appellant, v. Joseph G. GILLETTE, Appellee.
    No. 4D16-1010
    District Court of Appeal of Florida, Fourth District.
    [September 6, 2017]

      Martin L. Haines, III of Brinkley Morgan, Lake Park, for appellant.
    Troy William Klein of Law Office of Troy W. Klein, P.A., West Palm Beach, for appellee.
   Kuntz, J.

The Former Wife appeals the circuit court’s final judgment of dissolution of marriage. We address three of the issues raised by the Former Wife in this opinion and affirm the remaining issues raised on appeal -without further discussion.

First, we hold that the court did not abuse its discretion when it concluded the Former Husband was not voluntarily underemployed. Second, we affirm in part and reverse in part the court’s calculation of the Former Wife’s child support obligation. Third, we reverse the court’s conclusion that the Former Husband’s IRA was a non-marital asset.

Background

After twelve years of marriage, the Former Husband filed a petition for dissolution of marriage and sought sole parental responsibility and to be designated the primary residential parent of the parties’ only child. After a three-day trial, the court issued a twenty-five page Final Judgment of Dissolution of Marriage.

The court found that the Former Wife had a bachelor’s degree in communications from Loyola Marymount University in Los Angeles, California, and the Former Husband had a master’s degree in mechanical engineering from the University of Florida in Gainesville, Florida.

Prior to the marriage, both parties worked outside the home. The Former Wife quit her job in 2001, and remained unemployed until the petition for dissolution was filed. The Former Husband was employed as an engineer working with cellular phone technology at a technology company, earning approximately $90,000 per year until 2004. The court found that the Former Husband’s “experience is with cellular phone technology as it existed in 2004—which was before the release of the first iPhone and the other smart phones that are popular today,”

In 2001, with the encouragement of the Former Wife, the Former Husband started a cloud computing storage business, Shadow Storage. He operated Shadow Storage simultaneously with his employment at the technology company until 2004. The court found that “the parties mutually decided in 2004, that the [Former] Husband would resign from [the technology company] where he worked with cellular phones to devote himself full-time to working with Shadow Storage, Inc., the family business, as well as raise the parties’ son.” Since 2004, the Former Husband has worked full-time for Shadow Storage.

The Former Husband testified that from the time he began working full-time at Shadow Storage until the filing of the petition, the Former Wife did not ask him to give up his work at Shadow Storage or demand that he find work outside the home. Importantly, for purposes of this appeal, the court found this testimony to be credible.-

While the Former Wife agreed to the Former Husband’s working at Shadow Storage during the marriage, her consent dissolved with the marriage. As a result, the Former Wife argued to the circuit court that the Former Husband is voluntarily underemployed. Although he testified that he works between forty and fifty hours per week at Shadow Storage, the highest amount of gross income he made in any year from the company was $13,000. The Former Wife presented a vocational expert who testified the Former Husband could be employed in various fields and earn significantly more than he earned at Shadow Storage. The court, however, found the expert had “little credibility” and noted various deficiencies in the testimony and methodology presented by the expert.

The court also found the Former Husband’s flexible work schedule was a benefit to the couple and the minor child. The flexible schedule allowed the Former Husband to care for the child when he was ill, volunteer at school and with extracurricular activities, and allowed the Former Husband “to be highly involved in the minor child’s education at a level that would have been highly unlikely had the Husband not resigned his position in 2004 with [the technology company] and committed himself to being a work from home father.”

Based upon these findings, the court found the Former Wife had failed to meet her burden to establish the Former Husband was voluntarily underemployed. The Former Wife timely sought rehearing'and, after the motion for rehearing was denied, appealed the court’s judgment.

Analysis

A, The Court Did Not Abuse its Discretion in Determining the Former Husband Was Not Voluntarily Underemployed

We first address the Former Wife’s argument that the court erred in its conclusion that the Former Husband is not voluntarily underemployed for purposes of calculating child support.

Our “standard of review is whether the trial court’s determination is supported by competent, substantial evidence,” Heard v. Perales, 189 So.3d 834, 836 (Fla. 4th DCA 2015) (internal citation omitted), and we will not reverse unless the court abused its discretion. Guard v. Guard, 993 So.2d 1086, 1089 (Fla. 5th DCA 2008); see also Stanton v. Stanton, 648 So.2d 1233, 1234 (Fla. 4th DCA 1995) (“A child support determination is within the sound discretion of the trial court, subject to the- statutory guidelines and the reasonableness test.”).

The governing statute, section 61.30(2)(b), Florida Statutes (2015), provides that a court “shall” impute income to a parent it finds to be voluntarily underemployed. To determine whether to impute income as a result of voluntary underemployment, the court engages in a two-step process. Heard, 189 So.3d at 836. First, the court must conclude the termination of income was voluntary. Second, “the court must determine whether, the subsequent unemployment ‘resulted from the spouse’s pursuit of his own interests or through less .than, diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.’” Id. (quoting Schram v. Schram, 932 So.2d 245, 249-50 (Fla. 4th DCA 2005)). The burden is on the party asserting that the other spouse is voluntarily unemployed or underemployed. Andrews v. Andrews, 867 So.2d 476, 478 (Fla. 5th DCA 2004). (citing Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001)).

Generally, the Former Wife asserts the court failed to sufficiently conduct the two-part test. She relies upon the evidence regarding the Formér Husband’s income after he left his employment' at the technology ’ company, arguing his testimony that he intended to remain self-employed “should have been a shock to the conscience of the trial court.”

We acknowledge that a person can become “underemployed” by- leaving a more lucrative position in order to pursue - an interest in a family business. Guard, 993 So.2d at 1090. In Guard, the wife filed a motion for temporary alimony and child support. During the marriage, the husband had been forced to resign from his job in Georgia and the parties moved to Florida to start a family business. Similar to the business in this ease, the family business in Guard was not profitable. Due to the lack of income, the wife could not work because she could not afford child care for their children. The. husband volunteered to care for the children two days a week, “depending on his work schedule.” The trial court found the husband to be “voluntarily underemployed” and the Fifth District affirmed, finding no abuse of discretion by the trial court. Id. at 1090.

Similarly, in Connell v. Connell, 718 So.2d 842 (Fla. 2d DCA 1998), the former husband sought a downward modification of his child support obligation. After he was fired for misconduct from a job earning $45,000 per year, he started a lawn business earning less than $13,200 per year. The circuit court found that he was “voluntarily underemployed” and the Second District affirmed, finding “the evidence sufficient to support the trial court’s determination.” Id. at 843; see also Bator v. Osborne, 983 So.2d 1198, 1199-1200 (Fla. 2d DCA 2008) (finding “ample evidence” to support a similar result).

In Vazquez v. Vazquez, 922 So.2d 368, 372 (Fla. 4th DCA 2006), the former husband petitioned the court for a downward departure of his child support obligations after being terminated from his job. The reason for his termination was misconduct, including using his employer’s computer to send his former wife an offensive and threatening e-mail. Six months later, he opened his own business as a professional engineer earning between $2,900 and $3,750 per month. The court denied his petition and imputed income to him in the amount of $5,650 per month. The majority in Vazquez held that the court did not abuse its discretion “in finding that the husband’s termination of employment from Florida Power and Light was voluntary and his subsequent employment efforts were less than diligent.” Id. at 370. Judge Gross disagreed with the characterization of the husband’s employment termination and would have found the termination to be involuntary. Notwithstanding his disagreement as to the termination, he' ultimately agreed with the result, stating: “I concur in the affirmance because the finding of voluntary underemployment turns on a credibility determination by the commissioner, which is entitled to deference on appeal.” Id. at 373.

That same deference precludes a reversal here. The court made detailed findings regarding the origins of the Former Husband’s employment, the agreement of the parties to that situation, and the benefit to the child as a result. Further, the court rejected the Former Wife’s expert’s testimony and evidence regarding the Former Husband’s earning potential. The court noted the expert did not consider technological changes since the Former Husband was previously employed at the technology company working on cellular phones and, additionally, found the expert’s methodology to be flawed.

In essence, the Former Wife now asks us to judge the wisdom of a business decision jointly made by the parties six years prior to their separation. We are not at liberty to question the wisdom, or lack thereof, of the Former Husband’s decision to remain in a business that has proven unprofitable. There are a myriad of other issues beyond profitability a business owner considers when making business decisions. There are also many issues that a trier of fact may rely upon when making a determination regarding underemployment. If the issue of underemployment was one that focused solely on profitability, we would have a system that strangles small businesses which struggle at their inception and forces those business owners to cede them business in favor of employment at a more established company. That may be wise in some instances but not in others where the once struggling small business builds over time into a more profitable enterprise.

Regardless, here we are tasked with determining whether the court’s determination is supported by competent substantial evidence. As there was competent substantial evidence to support each of the court’s findings, we cannot conclude the court abused its discretion in determining the Former Husband was not voluntarily underemployed.

B. The Calculation of Child Support

Next, the Former Wife argués the court erred in its calculation of child support when it failed to consider her monthly child care expenses and, additionally, based upon a mathematical error.

i The Court Erred When It Failed To Account for the Former Wife’s Child Care Expenses

The Former Wife argues the court erred when it calculated her child support obligation without considering the amount she pays each month for child care. We agree, because section 61.30(7), Florida Statutes (2015), provides that “child care costs incurred due to employment ... of either parent shall be added to the basic obligation.” Therefore, on remand the court should recalculate child support after including the child care costs incurred by the Former Wife.

ii. The Mathematical Error in the Calculation of Retroactive Child Support

With regard to the mathematical error, the court determined the Former Wife’s net monthly income was $1,620, and her monthly obligation for the period of April 2010 through September 2013 was $348. While the court established a time period for retroactive child support from April 2010 through September 2013, it erroneously indicated there were forty-six months during that time period. In fact, there are forty-two months, during that time period. The Former Husband does not dispute this mathematical error, but argues the issue was waived. We disagree. Due to this miscalculation in months, the court’s retroactive award resulted in the Former Wife owing $1,392 too much. We reverse and remand for recalculation of the Former Wife’s retroactive child support obligation, subject to any additional changes that result from including the Former Wife’s child care expenses as discussed above.

C. The Former Husband’s IRA

Finally, the Former Wife argues the court erred when it found she stipulated that the Former Husband’s retirement account was a non-marital asset. The Former Husband concedes the Former Wife did not stipulate to this, however, argues the error was harmless. We disagree. On remand, the court should find that the retirement account is a marital asset, determine a date for valuation of the asset, and equitably distribute the asset as required by section 61.075, Florida Statutes (2015).

Conclusion

We affirm the court’s conclusion that the Former Husband is not voluntarily underemployed. However, we reverse the court’s child support determination and retroactive award and remand for recalculation as indicated above. Additionally, we reverse the court’s finding that the Former Wife conceded the Former Husband’s retirement account was a non-marital asset and remand for valuation and distribution of that marital asset.

Affirmed in part, reversed in part, and remanded.

Gerber, C.J., and Gross, J., concur.


author: Gerber, C.J.

text:
    Michael LESINSKI, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    No. 4D17-40
    District Court of Appeal of Florida, Fourth District.
    [September 6, 2017]
    Christopher J. Rush of Christopher J. Rush & Associates, P.A., Boynton Beach, for appellant.
    James E. Nutt, West Palm Beach, for appellee.
   Gerber, C.J.

The plaintiff appeals from the circuit court’s order denying his Florida Rule of Civil Procedure 1.540(b)(1) motion to vacate the court’s earlier Florida Rule of Civil Procedure 1.420(e) dismissal order. The plaintiff primarily argues the court erred-in denying the motion because the motion established excusable neglect for his failure to timely respond, to the court’s notice of lack of prosecution. We disagree with the plaintiff and affirm.

We present this opinion in three parts:

1. the procedural history;
2. our review; and
3. a detailed comparison to an analogous case.

1. Procedural History

After no record activity occurred for ten months in the underlying case, the circuit court, on August 16, 2016, entered a notice of lack of prosecution under Florida Rule of Civil Procedure 1.420(e). Rule 1.420(e) provides, in part:

In all actions in which it appears on the face of the-record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the- court ... .the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person ... unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.

Fla. R. Civ. P. 1.420(e).

The circuit court’s notice set a hearing for November 9, 2016. No record activity occurred within the sixty days immediately following the service of the notice, and no stay was issued or approved before the sixty-day period expired. Instead, on November 7, 2016 (two days before the hearing), the plaintiffs counsel filed a “showing of good cause,” claiming he had not been prosecuting the case because the defendant never filed an answer to the pending version of the complaint. The plaintiffs counsel also noted that his office had failed to calendar the sixty-day and five-day deadlines under rule 1.420(e).

On November 9, 2016, the circuit court held a very brief hearing. At the hearing, the plaintiffs counsel apologized for his failure to file a -notice of good cause five days before the hearing, as rule 1.420(e) required. The plaintiffs counsel maintained that he was waiting for the defendant to file an answer to the pending version of the complaint. The court, without explanation, stated that the case was dismissed. The court entered a written dismissal order to that effect.

The plaintiff then filed a timely motion to vacate the dismissal order under Florida Rule of Civil Procedure 1.540(b)(1) (2016) (“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons:. (1) mistake, inadvertence, surprise, or excusable neglect ....”) (emphasis added). In the motion, the plaintiffs counsel alleged that, following the court’s notice of lack of prosecution, the only deadline placed on his calendar was a “mandatory status conference/scheduling conference” to' occur on November 9, 2016, and neither the sixty-day deadline regarding record activity, nor the five-day deadline for filing a good cause showing, was calendared or tickled. The plaintiffs counsel’s paralegal signed an affidavit supporting those allegations.

The circuit court, without explanation and without an evidentiary hearing, entered an order denying the plaintiffs motion to vacate the dismissal order.

This' appeal followed. The plaintiff primarily argues the court erred in denying the motion because the motion established excusable neglect for his failure to timely respond to the court’s notice of lack of prosecution. The plaintiff specifically argues: (1) because the defendant did not contradict the motion’s excusable neglect showing, the court should have granted the motion; and (2) at a minimum, the court erred by summarily 'denying the motion without an evidentiary hearing.

In response, .the defendant primarily argues that the circuit court properly denied the plaintiffs'motion to vacate the dismissal order, because when the plaintiff missed both the- sixty-day and five-day deadlines under rule 1.420(e), the court had no discretion but to dismiss the case.'

2. Our Review

To the extent the circuit court’s decision was based on its consideration of the plaintiffs excusable neglect claim, we review the decision for an abuse of discretion. See J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008) (“Our standard of review of an order ruling on a motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of the trial court’s discretion.”) (citation omitted). To the extent the circuit court’s decision was based on a construction of the rules at issue, our review is de novo. See Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 790 (Fla. 2011) (“[W]e apply a de novo standard of review when the construction of a procedural rule is at issue.”).

As an initial matter, we recognize our longstanding holding that “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature-is hem, then upon timely application accompanied by a reasonable and credible explanation!,] the matter should be permitted to be heard on the merits.” Somero v. Hendry General Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985).

Despite this prior holding, we conclude that the plaintiffs argument lacks merit. We reason that allowing the circuit court’s rule 1.420(e) dismissal order to be vacated under rule 1.540(b)(1) due to the plaintiffs counsel’s excusable neglect, even if uncontradicted, would eviscerate the application of rule 1.420(e)’s bright-line deadlines in this case.

Since 2005, our supreme court has held that rule 1.420 should be interpreted according to its plain meaning. See Wilson v. Salamon, 923 So.2d 363, 369 (Fla. 2005) (“[W]e return to the plain meaning of the rule as specifically set forth in the words of the rule as discussed above.”); Chemrock, 71 So.3d at 792 (“Our plain meaning interpretation of the rule in Wilson remains applicable to the current rule [as amended in 2006].”).

In the instant case, no record activity occurred within the ten months immediately preceding the service of such notice, no record activity occurred within the sixty days immediately following the service of such notice, and no stay was issued or approved before the sixty-day period expired. It was not until two days before the hearing that the plaintiffs counsel sought to show good cause in writing why the action should remain pending.

Under rule 1.420(e)’s plain meaning, the plaintiffs counsel’s good cause showing was untimely. Therefore, the circuit court properly issued the dismissal order. We rely on our sister court’s reasoning in Turner v. FIA Card Svcs., N.A., 51 So.3d 1242 (Fla. 3d DCA 2011):

Rule 1.420(e) provides that this showing of good cause must be made “at least 5 days before the hearing.” ... We conclude that “close enough” is not “good enough. ”
The Florida Supreme Court in Wilson v. Salamon, 923 So.2d 363, 368 (Fla. 2005), created a bright-line rule that any filing would prevent dismissal pursuant to this rule. Likewise, any filing in the 60-day period following the notice or motion for lack of prosecution would qualify as record activity and would keep the case from being dismissed. The rule likewise specifies a bright line for providing good cause—“at least five days before the hearing.” The rule does not read more or less five days, or around five days .... We believe that, just as the Florida Supreme Court sought to impose a bright line for keeping a case from being dismissed for lack of prosecution, we should impose a bright line for showing good cause, and if the rule states '“5 days, we can require no less.

Id. at 1243 (emphasis added); accord Held v. U.S. Bank Nat’l Assoc., 217 So.3d 1039, 1042 (Fla. 4th DCA 2017).

The plaintiffs argument in the instant case seeks to blur, if not erase, rule 1.420(e)’s bright lines, by allowing the plaintiff, whose counsel received a proper rule 1.420(e) notice of lack of prosecution, to miss rule 1.420(e)’s deadlines, and then seek relief from the resulting dismissal order by arguing excusable neglect under rule 1.540(b)(1). We will not allow such an exception based on our review of the record of this case. Therefore, whether applying the abuse of discretion standard of review or the de novo standard of review, we agree with the circuit court’s decision to deny the plaintiff’s rule 1.540(b)(1) motion to vacate the court’s earlier rule 1.420(e) dismissal order.

Our conclusion is not the first time in which an appellate court has concluded that a case should not be reinstated under rule 1.540(b) after the case had been dismissed for lack of prosecution under rule 1.420(e). See Carmine v. Wall, 309 So.2d 23, 23-24 (Fla. 2d DCA 1975) (“After carefully reviewing the briefs of counsel and examining the appellee’s motion and evidence presented in support thereof before the trial court, we find the same fall short of establishing any of the grounds which could afford the appellee (plaintiff below) relief under RCP 1.540(b).”). Although our sister court’s reasoning is brief, we recognize its precedential value for supporting our conclusion in the instant case.

3. An Analogous Case

An analogous and more detailed case supporting our conclusion is CPI Mfg. Co. v. Industrias St. Jack’s, S.A. De C.V., 870 So.2d 89 (Fla. 3d DCA 2003). CPI discusses the interaction between an earlier version of rule 1.420(e) and Florida Rule of Civil Procedure 1.090(b)(2), which also refers to “excusable neglect.”

In CPI, after the plaintiff sued the defendant, a period of one year without record activity occurred. The defendant filed a motion to dismiss for failure to prosecute under rule 1.420(e), which in 2002 provided:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e) (2002).

Four days before the hearing on the defendant’s motion, the plaintiffs counsel filed, among other things, a motion for nunc pro tunc extension of time under rule 1.090(b)(2), which in 2002 provided:

When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion ... (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.

Fla. R. Civ. P. 1.090(b)(2) (2002) (emphasis added). In the motion, the plaintiffs counsel alleged that, due to a mix-up in his office, his office failed to file a notice of unavailability and motion for extension of time during the one-year inactivity period. The request included a supporting affidavit from his secretary/paralegal. However, the plaintiff never availed itself of rule 1.420(e)’s option of showing good cause.

The trial court held the hearing on the defendant’s motion to dismiss and' the plaintiffs motion for nunc pro tunc extension of time. The trial court denied the plaintiffs motion, and entered a final judgment of dismissal.

On appeal, the plaintiff contended the trial court erred by not applying the provisions of rule 1.090(b)(2) to extend the one-year time limitation in rule 1.420(e). The defendant responded that rule 1.090(b)(2)⅛ permissive time enlargement should hot be available to extend rule 1.42Q(e)’s mandatory one-year failure to prosecute period.

Our sister court affirmed, reasoning, in pertinent part:

Rule 1.420 is a mandatory rule. Unless a party can satisfy the exceptions provided for in the rule, it specifically states “shall dismiss,” and there is no discretion on the trial court’s part if it is demonstrated to the trial court that no action toward prosecution has been taken within a year.
In addition, the resolution of a motion to dismiss for failure to prosecute involves a two-step process. First, the defendant is required to show there has been no record activity for one year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to' establish good cause why the action should remain pending. [The plaintiff here] would have us rewrite the rule to change the “good cause” criteria to an “excusable neglect” standard.
,.. However, we agree with [the defendant] that if we relieve [the plaintiff] from the mandatory dismissal under rule 1.420(e), we are effectively deleting the “good cause” showing provision of rule 1.420(e). Basically, [under the plaintiffs position,] a party who fails'to make a timely written good cause showing five days before a hearing on a failure to prosecute motion to dismiss can then avoid dismissal simply by filing a motion for nunc pro tunc enlargement of time. There is no support for [the plaintiffs] position, nor do we find it logical.
In sum, dismissal here was properly entered because there was no prosecution for a period of one year or more. [The plaintiff] showed no good cause in writing at least five days prior to the hearing on the motion to dismiss for failure to prosecute as to why the action should remain pending. As such, the trial court did not abuse its discretion in entering the two orders under review. Accordingly, where no good cause is shown, the trial court is bound to dismiss the case.

870 So.2d at 91-93 (footnote and citations omitted).

Our sister' court’s' reasoning applies equally here to the interaction between the current version of rule 1.420(e) and rule 1.540(b)(1). To paraphrase our sister court, if we relieve the plaintiff from the mandatory dismissal under rule 1..420(e) because of excusable neglect as alleged here, we are effectively deleting the current rule 1.420(e)’s deadlines. We would be allowing the plaintiff, who did not satisfy: any of rule 1.420(e)’s deadlines, to avoid dismissal simply by filing a rule 1.540(b)(1) motion to vacate the dismissal on the basis of the alleged excusable neglect. No support for the plaintiffs position exists under the facts of this case or in case law, nor do we find it logical.

Conclusion

Based on the foregoing, we affirm the circuit court’s order denying the plaintiffs rule 1.540(b)(1) motion to vacate the court’s earlier rule 1.420(e) dismissal order.

Affirmed.

Warner and Damoorgian, JJ., concur.

      . By our conclusion in the instant case, we do not mean to suggest that a party who has not received a proper rule 1.420(e) notice of lack of prosecution, or who argues that rule 1.420(e)’s conditions do not exist, is precluded from seeking relief from the resulting dismissal order under Florida Rule of Civil Procedure 1.540(b). See Coral Gables Imports, Inc. v. Suarez, 219 So.3d 101, 103-04 (Fla. 3d DCA 2017) ("[The plaintiff] correctly moved to vacate the dismissal order as void, pursuant to Florida Rule of Civil Procedure 1.540(b)(4), where the court entered the dismissal order [under rule 1.420(e)] without notice and the record reflected record activity.”) (emphasis added); Metro Obras, Inc. v. F.D.I.C., 611 So.2d 1356, 1356 (Fla. 3d DCA 1993) ("[T]he trial court set aside a dismissal for lack of prosecution on the ground that the plaintiff had not been given appropriate notice. This order was properly entered pursuant to Fla. R. Civ. P. 1.540(b) and is therefore affirmed. The merits of a dismissal under Fla. R. Civ. P. 1.420(e) remain to be decided below.”) (emphasis added; citations omitted). We agree with our sister court’s opinions pn those facts.