author: FERNANDEZ, J. SHEPHERD, Senior Judge,

text:
    Diana R. PEDRAZA, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, etc., et al., Appellees.
    No. 3D13-1190
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017.

      Diana R. Pedraza, in proper person.
    Louis A. Gutierrez (Tallahassee), Senior Attorney, for appellee Reemployment Assistance Appeals Commission.
    Before LAGOA and FERNANDEZ, JJ., and SHEPHERD, Senior Judge.
   FERNANDEZ, J.

This is an administrative appeal of an order from the Reemployment Assistance Appeals Commission (“Commission”) that affirmed a decision of a reemployment assistance appeals referee who held that Diana R. Pedraza was ineligible to receive reemployment assistance benefits because she did not qualify for Trade Readjustment Assistance (“TRA”) program under the Trade Act of 1974. We reverse.

The TRA program provides monetary assistance to workers who are adversely affected by foreign trade competition. To determine whether a worker is eligible under the TRA program, the worker’s annual wages at his or her current employment must be less than the annual wages from the former trade-affected employment and is calculated based upon the federal guidelines outlined in the Training and Employment Guidance Letter (TEGL) No. 22-08.

The federal guidelines state that the annual wages at separation from the trade affected employment are computed by multiplying the worker’s hourly rate received during the last full week of his or her employment by the number of hours the individual worked during the last full week of employment and multiplying that number by 52. Annualized wages at reemployment are defined similarly to annualized wages at separation, except that the hourly rate and hours worked must reflect those of the first full week of reemployment. Based upon this calculation method, the Commission found that Pedraza was not eligible to receive benefits under the TRA program because her annual wages at her current employment were higher than her annual wages from the previous trade-affected employment.

Pedraza worked for Boston Scientific Corporation (“Boston Scientific”) for seven years until her employment ended on September of 2011, as a result of foreign trade competition. Pedraza’s pay rate at Boston Scientific was $11.74 per hour. Pedraza was subsequently employed by Aveva in December of 2012 and her pay rate was $9.50 per hour.

Boston Scientific compensated Pedraza on a bi-weekly schedule. Pedraza’s last pay period for Boston Scientific was September 25, 2011. The last pay stub showed that Pedraza worked an average of nineteen and one-quarter hours per week during the last two weeks. The second to last pay period, which ended on September 11, 2011, showed that Pedraza worked seventy-two hours for two weeks. Pedraza claimed that she normally worked forty hours per week, which is evident in the first week of the September 11, 2011 pay period. But because the last week of the September 11, 2011 pay period included the Labor Day holiday, she worked only 32 hours that week.

The Commission calculated Pedraza’s yearly income from Boston Scientific by going back to the second week of the September 11, 2011 pay period. During that week, Pedraza worked thirty-two hours instead of her normal forty hours due to the Labor Day holiday. The Commission multiplied Pedraza’s wage of $11.74 per hour by thirty-two hours, equaling $375.68 per week. The Commission then multiplied $375.68 by fifty-two, which resulted in a net income of $19,535.36 per year from Boston Scientific.

The Commission next calculated Pedra-za’s yearly income from Aveva by looking at her first full week of employment. Pe-draza worked forty hours during that week. The Commission multiplied Pedra-za’s wage by forty, equaling $380 per week. The Commission then multiplied $380 by fifty-two, which resulted in a net income of $19,760 per year from Aveva. Based on these calculations, the Commission found that Pedraza was not entitled to benefits under the TRA program because her income at Aveva was higher than her income from Boston Scientific.

When calculating Pedraza’s income at Boston Scientific, the Commission should have looked at the first week of the September 11, 2011 pay period. Had the Commission done so, it would have accurately calculated her annual net income based on a forty hour work week, which was her normal work schedule at Boston Scientific. Pedraza’s forty hour weekly income of $469.60 would have been multiplied by fifty-two, resulting in an average yearly income of $24,419.20 at Boston Scientific. Based on these calculations, it is apparent that Pedraza was entitled to benefits under the TRA program because she was now earning less at Aveva than when she worked at Boston Scientific, as her yearly income was reduced by $4,659.20.

The Commission denied Pedreza the financial benefits because it incorrectly based its calculations on Pedraza’s last full week at Boston Scientific on a week when there was a national holiday. The Commission mistakenly interpreted the phrase “last full week of employment” as set out in the federal guidelines to mean the last week Pedraza worked full time. The Commission relied on Florida law to define full time employment as 32 hours or more per week.

We acknowledge that an agency’s interpretation of a statute, with which it is legislatively charged with administering, shall be accorded great weight and should not be overturned unless clearly erroneous, arbitrary, or unreasonable. Guido v. Vincam Human Resources, Inc., 729 So.2d 968, 969 (Fla. 3d DCA 1999). As such, we find that the Commission’s interpretation of what is the “last full week of employment” for purposes of determining a worker’s eligibility to receive TRA benefits was clearly erroneous. See Weiser v. Unemployment Appeals Comm’n, 406 So.2d 1200, 1201 (Fla. 4th DCA 1981)(ruling that the Commission’s construction of the phrase “26 weeks of employment” was flawed, and the worker was entitled to financial assistance under the TRA program).

The phrase “last full week of employment” should not be read as the last week an employee works full time as defined by Florida law. The phrase “last full week of employment” should be decided on a case-by-case analysis to determine how much the applicant normally worked while employed with the subject company. Thus, her last full week of employment at Boston Scientific was not the last week she worked full time, but rather it is the last week Pedraza worked her normal schedule. Pedraza worked for Boston Scientific for seven years at an average of forty hours a week. It was clearly erroneous for the Commission to calculate Pedraza’s last full week of employment in a week when there was a Labor Day holiday in which she was not required to work. We therefore reverse the decision of the Reemployment Assistance Appeals Commission because it was clearly erroneous and order that Pedraza receive benefits in accordance with her decrease in income in conformity with this opinion.

Reversed and remanded for further proceedings consistent with this opinion.

LAGOA, J., concurs.

SHEPHERD, Senior Judge,

concurring in result.

I concur in the result in this case. I write only to rail once again, as I have on more than one prior occasion — most recently, in Housing Opportunities Project, etc. et al, v. SPV Realty, LC, 42 Fla. L. Weekly D44a (Fla. 3d DCA Dec. 21, 2016) — that this Court should seriously consider the constitutional implications of blindly adhering to the mantra so regularly incanted by the Court to support, uphold, or approve agency decision-making that “an agency’s interpretation of a statute, with which it is entitled with administering shall be accorded great weight and should not be overturned unless clearly erroneous, arbitrary, or unreasonable,” as well as the many variations on the theme.

As Justice Thomas recently explained in the context of federal legislation where the same legal line is often reflexively, I would say mindlessly, invoked to approve agency interpretation of congressional legislation, Chevron deference “wrests from Courts the ultimate interpretative authority to ‘say what the law is,’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), and hands it over to the Executive.” Michigan v. E.P.A., — U.S. -, 135 S.Ct. 2699, 2712, 192 L.Ed.2d 674 (2015) (Thomas, J., concurring); cf. Bush v. Schiavo, 885 So.2d 321, 330 (Fla. 2004) (“Under the express separation of powers provision in our state constitution, ‘the judiciary is a coequal branch of the Florida government vested with the sole authority to exercise the judicial power[.]”’); Fla. Code of Jud. Conduct, Canon 1 (“A Judge Shall Uphold the Integrity and Independence of the Judiciary.”).

Perhaps even more profound, is the due process problem of automatically taking the side of one of the parties in the case. As one percipient scholar has explained:

It ordinarily would be outrageous for a judge in a case to defer to the views of one of the parties. And it ordinarily would be inconceivable for judges to do this regularly by announcing ahead of time a rule under which judges should defer to the interpretation of one of the parties in their cases, let alone the most powerful of parties, the government. Nonetheless, this is what the judges have done. It therefore is necessary to confront the reality that when judges defer to the executive’s view of the law, they display systematic bias toward one of the parties.

Hamburger, supra note 2, at 1212; see also Fla. Code of Jud. Conduct, Canon 3 (“A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently.”).

In my view, deference to an agency’s construction or application of a statute implicates important due process and separation of powers questions deserving of serious contemplation by future members of this and other courts around the state. The fundamental concern of keeping the individual branches separate is that the fusion of the powers of any two branches into the same department would ultimately result in the destruction of liberty. E.g., Ponder v. Graham, 4 Fla. 23, 42-43 (1851); The Federalist Nos. 47, 51 (James Madison). We should be reluctant to so readily abandon our judicial independence and alter the structure upon which our entire system of government is based. Moreover, we should not be so quick to embrace a course of conduct that results in systemic bias towards one of the parties. While I recognize the reality of agency deference, I share Justice Thomas’s concern that “we seem to be straying further and further from the Constitution without so much as pausing to ask why. We should stop and consider that document before blithely giving the force of law to any other agency ‘interpretations!)]’ ” Michigan, 135 S.Ct. at 2713.

      . Majority op. at 1255-56.

      2. See Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 188-89 (2006) (“Ironically, Justice Stevens, the author of Chevron, had no broad ambitions for the decision; the Court did not mean to do anything dramatic. But shortly after it appeared, Chevron was quickly taken to establish a new approach to judicial review of agency interpretations of law, going so far as to create a kind of counter-Marbury for the administrative state. Chevron seemed to declare that in the face of ambiguity, it is emphatically the province and duty of the administrative department to say what the law is.” (footnotes omitted)).

      . See also Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke LJ. 511, 513-14 (1989):
      It is not immediately apparent why a court should ever accept the judgment of an executive agency on a question of law. Indeed, on its face the suggestion seems quite incompatible with Marshall’s aphorism that "[i]t is emphatically the province and duty of the judicial department to say what the law is.” Surely the law, that immutable product of Congress, is what it is, and its content — ultimately to be decided by the courts — cannot be altered or affected by what the Executive thinks about- it. I suppose it is harmless enough to speak about "giving deference to the views of the Executive” concerning the meaning of a statute, just as we speak of "giving deference to the views of the Congress" concerning the constitutionality of particular legislation — the mealymouthed word “deference” not necessarily meaning anything more than considering those views with attentiveness and profound respect, before we reject them. But to say that those views, if at least reasonable, will ever be binding — that is, seemingly, a striking abdication of judicial responsibility.
      (footnote omitted). Justice Scalia ultimately concludes, however, that agency deference is theoretically justified as a function of Congress's intent to confer discretion upon the agency. Id. at 516. But see Philip Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187, 1196 n.28 (2016) (“Certainly, it often is said that Congress delegates judicial power to agencies, but this cannot be delegation, for the Constitution places the judicial power in the courts, and Congress cannot subdelegate a power it does not have. U.S, Const. Art. Ill, § 1.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.P., the father, and E.R., the mother, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    Nos. 3D16-2152 & 3D16-1977
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017
    Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for appellant J.P., the father; Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant E.R., the mother.
    Laura J. Lee (Sanford), for the Guardian ad Litem Program; Karla F. Perkins, for the Department of Children and Families, for appellees.
    Before SUAREZ, C.J. and LAGOA and SCALES, JJ.
   PER CURIAM.

Both E.R., the mother, and J.P., the father, appeal the trial court’s detailed order adjudicating the couple’s infant son dependent. We consolidated the two appeals. We affirm because the order is supported by competent, substantial evidenced adduced at the two-day dependency hearing.

Affirmed.


author: ROTHENBERG, J.

text:
    E.Q., the Mother, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN & FAMILIES, et al., Appellees.
    No. 3D16-2108
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, Third Region, for appellant.
    Laura J. Lee (Sanford), for appellee the Guardian ad Litem Program; and Karla Perkins, for appellee the Florida Department of Children & Families.
    Before ROTHENBERG, LAGOA, and SCALES, JJ.
   ROTHENBERG, J.

In this appeal, there are two orders before this Court: (1) the final judgment terminating E.Q.’s (“the Mother”) parental rights to her minor daughters N.Q. and S.Q. (“the children”); and (2) the order denying the Mother’s counsel’s motion to transfer custody of the children to the paternal grandparents (“the motion to transfer”). Because the Mother has not challenged the trial court’s findings terminating her parental rights and those findings are supported by competent substantial evidence, we affirm the final judgment terminating the Mother’s parental rights without further elaboration.

We now address the order denying the motion to transfer. On or about January 12, 2012, the Department of Children and Families (“DCF”) took the children into custody due to the parents’ abuse, abandonment, and/or neglect of the children, and the children were placed in a DCF shelter. Later that month, the children were placed with pre-adoptive foster parents, where they have remained and have thrived under their care.

On November 5,2014, while the parents’ parental rights were still intact, the attorney representing the Mother filed a motion to transfer the custody of the children from the pre-adoptive foster home they had resided in since January 2012, to the custody of the childrens’ paternal grandparents. Pursuant to section 63.082(6), Florida Statutes, the attorney representing the Mother was granted leave by the trial court to intervene as an “Adoption Entity/Intermediary Party” and to litigate the motion to transfer.

Section 63.082(6) permits intervention by an “adoption entity” in a dependency case where parental rights have not yet been terminated and a parent has executed a consent for placement of a minor with an adoption entity or qualified prospective adoptive parents. See § 63.082(6)(a-b). Both parents signed consents for adoption by the paternal grandparents, and the attorney representing the Mother filed the transfer motion prior to the termination of either parent’s parental rights. The trial court, therefore, had jurisdiction and conducted an evidentiary hearing in accordance with section 63.082(6)(c) to determine whether the prospective adoptive parents (the childrens’ paternal grandparents) were properly qualified to adopt the children and whether the adoption appeared to be in the best interest of the children.

Section 63.082(6)(e) lists four factors the court must consider when determining whether the best interest of the child is served by transferring custody of the minor child to the prospective adoptive parent selected by the current parent. These four factors are: (1) the right of the parent to determine an appropriate placement for the child; (2) the permanency offered; (3) the child’s bonding with any potential adoptive home that the child has been residing in; and (4) the importance of maintaining sibling relationships, if possible.

After hearing and weighing the evidence, the trial court concluded that the best interest of the children would not have been served by transferring custody of the children to the prospective adoptive parents, the paternal grandparents, selected by the parents. Because weighing the evidence is the province of the trial court, Y.P. v. Dep’t of Children & Family Servs., 939 So.2d 1118, 1119-20 (Fla. 3d DCA 2006); M.R. v. Dep’t of Children & Family Servs., 783 So.2d 277, 278 (Fla. 3d DCA 2001), and there is competent substantial evidence which supports the trial court’s findings, we affirm.

The fourth factor, which requires the trial court to consider the importance of maintaining sibling relationships, is not a factor in this case. We, therefore, turn to the remaining three factors. Although parents have a fundamental right to raise their children, and section 63.082(6)(e) provides the parents with the statutory right to select a prospective adoptive parent or parents for the child, that right is not absolute. Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 570 (Fla. 1991) (holding that a parent’s fundamental right to raise his or her child is “subject to the overriding principle that it is the ultimate welfare or best interest of the child which must prevail”) (citing In re Camm, 294 So.2d 318, 320 (Fla. 1974)); P.K. v. Dep’t of Children & Families, 927 So.2d 131, 133 (Fla. 5th DCA 2006). Thus, the wishes of the parents are a factor, but those wishes must be considered with the other three factors, which relate to a determination of what is in the best interest of the child.

In considering whether the paternal grandparents were “appropriately qualified” to adopt the children, the trial court considered the age and health of the grandparents. The grandmother was seventy years old and the grandfather was seventy-six years old when the trial court issued its order denying the transfer on or about June 26, 2015. In addition, the grandfather was experiencing several health issues, including diabetes, elevated cholesterol, high blood pressure, and some memory loss. These issues were appropriately considered with regard to the permanency prong of the evaluation. In June 2015, the oldest child was eight years old and the youngest child was seven years old.

More important to the trial court, however, was the bonding factor. The trial court noted that the children had resided in a stable placement with their pre-adop-tive foster parents since January 2012. In the final judgment terminating the parents’ parental rights, the trial court considered the emotional bond the children had with their foster parents, the children’s desires to remain with their foster parents, and the fact that this placement was a pre-adoptive home placement. The trial court noted in the final judgment terminating parental rights that the children call the foster parents “mommy” and “papi” and that there exists a parent-child relationship between the children and the foster parents. In contrast, the trial court found that the children have had no meaningful contact with the paternal grandparents since before they were placed in foster care in 2012, and that the children would suffer substantial and irreparable harm if they were uprooted and transferred to the custody of the paternal grandparents. This finding was supported and echoed by the Guardian ad Litem, an unbiased advocate for the best interest of the children, and DCF.

In Guardian ad Litem Program v. R.A., 995 So.2d 1083 (Fla. 5th DCA 2008), the father had moved to transfer the placement of his daughter from the pre-adop-tive home of the foster parents to the home of the child’s paternal grandparents. The trial court granted the motion and the Fifth District Court of Appeal issued a writ of certiorari and quashed the order based on the trial court’s failure to make a determination, based on the evidence presented, that a change of placement was in the child’s best interest. The Fifth District Court of Appeal specifically noted that pursuant to section 39.582(1), Florida Statutes, the standard for ordering a change in the placement of a dependent child is the child’s best interest, and that:

[Sjection 39.521(l)(d)8.b., Florida Statutes, expressly provides that when “no suitable relative is found and the child is placed with the department or a legal custodian” in the first instance, “neither the department nor the court is obligated to” later place the child with a relative “if it is in the child’s best interest to remain in the current placement.”

Id. at 1084.

It is therefore clear that when considering a motion by a parent to transfer a dependent child, who has been placed with the department or a legal custodian, to a relative, the trial court must consider the wishes of the parent or parents, if their parental rights have not been terminated, and weigh those wishes with the other three factors articulated in section 63.082(6), which relate to the best interests of the child. The trial court followed this statutory directive and entered an order with factual findings. Because weighing the evidence is the province of the trial court, Y.P., 939 So.2d at 1119-1120, and there is competent substantial evidence to support the trial court’s findings, we affirm.

Affirmed.

      . Although the Father’s parental rights were also terminated, this appeal only addresses the termination of the Mother's parental rights.

      . The order is actually worded as follows: Order Denying Adoption Entity’s Motion to Transfer Custody of the Minor Children [N.Q.] AND [S.Q.], to the Prospective Adoptive Parents, [the paternal grandparents].


author: SALTER, J.

text:
    LAGUNA TROPICAL, a Condominium Association, Inc., Appellant, v. Katia Marie BARNAVE, Appellee.
    No. 3D16-1531
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017.
    Robert C. Eber, for appellant.
    The Strauss Law Firm, and David A. Strauss (Fort Lauderdale), for appellee.
    Before WELLS, SALTER and LOGUE, JJ.
   SALTER, J.

Laguna Tropical, a Condominium Association, Inc. (“Association”), appeals a final judgment in favor of a condominium unit owner, Ms. Barnave (“Owner”), and her tenant, Ms. Garcia (“Tenant”). The Association sought injunctive and other relief to enforce provisions of certain rules and regulations applicable to the 94 units in the condominium development under the recorded Declaration of Condominium. We reverse the final judgment and remand the case to the trial court for enforcement of the applicable rules as against the Owner, the Tenant, and the condominium unit.

Flooring and Noise

The applicable rule is captioned “Noise.” It states, in pertinent part:

Unless expressly permitted in writing by the Association, no floor covering shall be installed in the units other than any carpeting or other floor covering installed by the Developer. In any event, each unit owner shall have the duty of causing there to be placed underneath such floor covering, so as to be beneath such floor covering and the concrete slab, generally accepted and approved materials for diminution of noise and sound, so that the flooring shall be adequately soundproof.

Another provision, this one in Article X, Paragraph D of the recorded Declaration of Condominium, prohibits a unit owner from altering, modifying or replacing the interior of a unit without the prior consent of the Association’s Board of Directors. Paragraph B of that Article further requires that maintenance, repairs, and replacements within a unit’s interior “shall be done without disturbing the rights of other unit owners.”

In 2010, the Owner concluded that it would be necessary to replace the carpeting in her unit. A previous tenant had allowed a pet (prohibited by the rules and regulations, but kept in the unit without the Owner’s knowledge) to ruin the original carpet. The Owner replaced the soiled carpeting with laminated flooring.

In 2011, the resident in the unit below the Owner’s second-story unit complained that the noise was disturbing his occupancy. Ultimately, the downstairs resident complained to the Association that the Owner and Tenant were in violation of the rules and asked the Association to enforce the noise and carpeting provisions. After a written notice by the Association, exchanges of letters, and an unsuccessful mandatory alternative dispute resolution process before the Division of Florida Condominiums, the Association filed a lawsuit against the Owner and Tenant to enforce the flooring restrictions.

Selective Enforcement; Prior Written Approval

In the pleadings, at trial, and here, the Owner asserted affirmative defenses alleging (1) “selective enforcement” of the flooring restrictions and (2) an alleged approval of the laminated flooring by the president of the Association. The Owner assumed the burden of proof as to each of these issues. The trial court found the selective enforcement defense to be well taken, and entered a final judgment in favor of the Owner. This appeal ensued.

The interpretation of the statutes, rules, and declaration of condominium provisions are reviewed here de novo. The Owner’s selective enforcement defense asserts that the Association only actually enforced the flooring (carpeting) restriction as against eleven of the condominium development’s 94 units. It is undisputed, however, that those eleven units were the only exclusively upstairs units. Eleven other units were exclusively downstairs units below the upstairs units, while the remaining 72 units were configured to include both first-floor and second-floor residential space within the same unit.

The record also (and predictably) includes no evidence that occupants of the 72 upstairs-downstairs units ever complained to the Association about the noise coming from upstairs, since they owned or leased the upstairs portion of the same unit. Further, there were a handful of prior noise complaints by -downstairs-only occupants below upstairs-only units that had culminated in successful enforcement action by the Association (i.e., the replacement of prohibited tile or wood flooring in the upstairs-only unit by the specified carpeting and underlying “generally accepted and approved materials for diminution of noise and sound”). Finally, there was no evidence that the Association had declined to enforce a noise complaint regarding a downstairs-only unit based on a replacement of carpet with tile or wood flooring.

This case is readily distinguishable from the selective enforcement cases relied upon by the appellees. In Prisco v. Forest Villas Condominium Apartments, Inc., 847 So.2d 1012 (Fla. 4th DCA 2003), for example, an association bylaw prohibited any pets other than fish or birds. A unit occupant who kept a dog in her unit was sued by the association to enforce the bylaw. The unit owner submitted evidence that another owner kept two cats on the premises, and other occupants also kept cats within their units. The trial court granted summary judgment for the Association on “selective enforcement,” concluding that there were rational differences regarding enforcement as against cats versus dogs (“[d]ogs clearly bark, cats do not, dogs need to be walked outside of their home, cats do not as they use litter boxes for the most part,” as the trial judge found). Id. at 1014. The Fourth District reversed and remanded:

The restriction is clear and unambiguous and states that, other than fish and birds, “no pets whatsoever” shall be allowed. The fact that cats are different from dogs makes no difference. What does matter is that neither a cat nor a dog is a fish or a bird, so both should be prohibited.

Id. at 1015.

In the present case, the prohibition on floor coverings other than padded carpet is plainly intended to avoid noise complaints. No selective enforcement was proven, as no complaints have been shown to have arisen regarding any units except second-floor only units like the Owner’s unit. It cannot be said that the enforcement action in the present case “constituted unequal and arbitrary enforcement of the restriction.” White Egret Condo., Inc. v. Franklin, 379 So.2d 346, 352 (Fla. 1979).

The Owner also argues that the Association president confirmed in an exchange of emails that the Owner’s laminated wood flooring was acceptable. This argument likewise fails, as the rules and declaration of condominium plainly require consideration and written approval by the Association’s board of directors, not merely one of its officers. Curci Vill. Condo. Ass’n, Inc. v. Maria, 14 So.3d 1175 (Fla. 4th DCA 2009) (condominium association not estopped from enforcing a restriction where written consent was not obtained from the board of directors (as specified), as opposed to a verbal consent from the president). The record in the present case contains no delegation by the Association of authority to approve installations of the kind involved in this case by its president. The Owner admitted that she did not submit a request for approval of the wood flooring to the Association’s board.

For all these reasons, we reverse the final judgment in favor of the Owner and remand the ease for enforcement of the flooring restrictions as sought by the Association,

      1. The provision only makes sense if the padding would be placed beneath the carpeting but above, not beneath, the concrete slab, or "between,” not beneath the carpeting and slab.

      . § 718.1255(4), Fla. Stat. (2013). The parties engaged in a further unsuccessful attempt to mediate the dispute before the non-jury trial.

      . “Hence, because condominiums are a creature of statute courts must look to the statutory scheme as well as the condominium declaration and other documents to determine the legal rights of owners and the association.” Woodside Vill. Condo. Ass'n v. Jahren, 806 So.2d 452, 454 (Fla. 2002).

      . This testimony was disputed, and the Owner did not introduce into evidence the alleged emails, as her computer had crashed.


author: EMAS, J.

text:
    Michael Clayton WOODRUFF, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1892
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017
    Brownstone, P.A, and Robert L. Sirian-ni, Jr. (Winter Park), for appellant.

      Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before LAGOA, SALTER and EMAS, JJ.
   EMAS, J.

Michael Woodruff appeals from a conviction and sentence for one count of lewd or lascivious molestation of a victim under twelve years of age, in violation of section 800.04(5), Florida Statutes (2009). Wood-ruff raises four issues on appeal: 1) The trial court erred in excluding evidence that the victim was the product of a sexual battery; 2) The trial court erred in excluding evidence that the victim had previously fabricated that she was pregnant; 3) The trial court erred in denying Woodruffs motion for a new trial predicated upon a post-trial interview of a juror; and 4) Trial counsel rendered ineffective assistance of counsel.

We find no merit in the first three issues raised by Woodruff, each of which is reviewed under an abuse of discretion standard. Stephens v. State, 787 So.2d 747 (Fla. 2001) (holding that a trial court’s denial of a motion for new trial is reviewed under an abuse of discretion standard); Alston v. State, 723 So.2d 148, 156 (Fla. 1998) (holding that a trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion); State v. Prieto, 439 So.2d 288 (Fla. 3d DCA 1983) (applying abuse of discretion standard in reviewing trial court’s ruling on a motion for new trial).

As to the evidentiary issues, the trial court did not abuse its discretion in excluding the evidence Woodruff sought to introduce at trial. Any purported probative value was substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury. See § 90.403, Fla. Stat. (2015); McLean v. State, 934 So.2d 1248 (Fla. 2006).

As to the motion for new trial, Woodruff asserts that one of the jurors, during a post-trial interview, indicated that he did not believe the State had proven the charge of lewd or lascivious molestation for which Woodruff was found guilty. The juror said he came to this realization during the reading of the jury’s verdict in open court. The juror acknowledged, however, that he and the other jurors had reached a unanimous verdict of “guilty” during the jury’s deliberations. The juror further acknowledged that, after the verdict was read in open court, he was polled by the trial court and agreed that the verdict of guilty was his verdict. See Fla. R. Crim. P. 3.440 and 3.450.

The trial court properly denied the motion for new trial. Woodruff does not assert that the jury’s deliberations were improperly influenced by external sources or that jurors decided the verdict by lot or otherwise expressly agreed to disregard their obligations and oaths. As the Florida Supreme Court held in Marks v. State Road Dep’t, 69 So.2d 771, 774-75 (Fla. 1954):

[Ajffidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner; but that such affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the Court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow-jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast.

A review of the record in the instant case plainly establishes that this claim involves matters that essentially inhere in the verdict itself, and cannot serve as a basis for attacking its validity. Devoney v. State, 717 So.2d 501 (Fla. 1998); Mitchell v. State, 527 So.2d 179 (Fla. 1988). See also § 90.607(2)(b), Fla. Stat. (2015) (providing that “[ujpon inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment”).

Finally, we decline to address the merits of Woodruffs claim of ineffective assistance of counsel, without prejudice to Woodruff seeking such relief by appropriate postconviction motion. As a general rule, and subject only to the rare exception, such a claim may not be raised for the first time on direct appeal. Bruno v. State, 807 So.2d 55, 63 (Fla. 2001).

Affirmed.

      . Woodruff was bom in 1977, and was over the age of eighteen when the crimes were alleged to have been committed (between June and August of 2009). He was charged by information with one count of sexual battery upon a victim under twelve years of age, and three counts of lewd or lascivious molestation upon a victim under twelve years of age. The jury found Woodruff not guilty of the sexual battery charge and two of the three counts of lewd or lascivious molestation. On the one count for which Woodruff was found guilty (Count Four, a life felony as provided by section 800.04(5)(b), Florida Statutes (2009)), the trial court sentenced Woodruff to twenty-five years in prison followed by probation (with mandatory electronic monitoring) for the rest of his natural life. See § 775.082(3)(a)4.a.(II), Fla. Stat. (2009).

      . Woodruff asserted that the victim had falsely claimed she had become pregnant, only to recant that claim a short time later. The proffered evidence indicated that, in September 2013, the victim’s school classmates started a rumor that the victim was pregnant, and that the victim went along with this rumor in an effort to garner attention. One or two months later, the victim acknowledged that the rumor was false. The allegation of a fabricated pregnancy did not in any way involve Woodruff; at no time had the victim alleged that Wood-ruff was the person who had caused her to become pregnant. The pregnancy rumor involved a third person, was completely unrelated to the events underlying this prosecution, and occurred in Pennsylvania more than four years after the date of the offenses charged in this case. These circumstances distinguish the instant case from Carlisle v. State, 137 So.3d 479 (Fla. 4th DCA 2014), upon which Wood-ruff principally relies.

      .Rule 3.440 provides:
      When the jurors have agreed upon a verdict they shall be conducted into the courtroom by the officer having them in charge. The court shall ask the foreperson if an agreement has been reached on a verdict. If the foreperson answers in the affirmative, the judge shall call on the foreperson to deliver the verdict in writing to the clerk. The court may then examine the verdict and correct it as to matters of form with the unanimous consent of the jurors. The clerk shall then read the verdict to the jurors and, unless disagreement is expressed by one or more of them or the jury is polled, the verdict shall be entered of record, and the jurors discharged from the cause. No verdict may be rendered unless all of the trial jurors concur in it.

      . Rule 3.450 provides:
      On the motion of either the state or the defendant or on its own motion, the court shall cause the jurors to be asked severally if the verdict rendered is their verdict. If. a juror dissents, the court must direct that the jury be sent back for further consideration. If there is no dissent the verdict shall be entered of record and the jurors discharged. However, no motion to poll the jury shall be entertained after the jury is discharged or the verdict is recorded.

      . See Fla. R. Crim. P. 3.600(a)(l)(providing that the trial court shall grant a new trial if it is established that "[t]he jurors decided the verdict by lot.”)

      . A claim of ineffective assistance of counsel may be raised on direct appeal only where the ineffectiveness is apparent on the face of the record. Gore v. State, 784 So.2d 418 (Fla. 2001); Rivera v. State, 193 So.3d 1033 (Fla. 3d DCA 2016). This exception does not apply here.


author: LOGUE, J.

text:
    Keith COLEMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-53
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017.
    • Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before WELLS, SALTER, and LOGUE, JJ.
   LOGUE, J.

Because the record supports the trial court’s finding that the Defendant violated his probation, we affirm. See State v. Carter, 835 So.2d 259, 262 (Fla. 2002) (noting that a violation of probation must be proven by the greater weight of the evidence); Jennings v. State, 124 So.3d 257, 262 (Fla. 3d DCA 2013) (“To prove constructive possession, the State must present competent, substantial evidence of the accused’s knowledge of the presence of contraband and his or her ability to exercise dominion and control over it.”); cf. Thompson v. State, 172 So.3d 527 (Fla. 3d DCA 2015) (constructive possession not proven for knife hidden in unlocked barracks-style dormitory room).

Affirmed.


author: SCALES, J. SHEPHERD, Senior Judge,

text:
    ESTATE OF ENEMENCIA DE LOS SANTOS, Appellant, v. NATIONAL EQUITY RECOVERY SERVICES, INC., Appellee.
    No. 3D15-2723
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017

      Michael Farrar, for appellant.
    Law Office of Rafael De Araujo, P.A., and Rafael De Araujo, for appellee.
    Before WELLS and SCALES, JJ., and SHEPHERD, Senior Judge.
   SCALES, J.

The Estate of Enemencia de los Santos (“Estate”) appeals an order granting National Equity Recovery Services, Inc. (“NERS”) fees in the total amount of $2,292.44 for its services as a surplus trustee under section 45.034 of the Florida Statutes. Although we conclude that NERS is entitled to seek payment, we reverse and remand the case to the trial court to conduct an evidentiary hearing to determine the appropriate amount of such statutory fees.

During the pendency of a foreclosure action against a condominium unit owned by Enemencia de los Santos, Ms. de los Santos died. After final judgment of foreclosure was entered in favor of the lender and after the foreclosure sale — from which a surplus in the amount of approximately $19,000 went unclaimed — the trial court appointed NERS to locate the owner of these surplus funds. Under the statute, NERS had one year from its appointment on February 4, 2013, to locate the owner. § 45.034(6), Fla. Stat. (2013).

In the meantime, a summary administration was established in probate court for the Estate. The heirs of the Estate learned about the surplus foreclosure funds before NERS identified the heirs. Summary administration of the Estate completed on August 29, 2013. After obtaining the order of summary administration, the heirs sought disbursement of the surplus foreclosure funds, obtaining an order from the trial court for this purpose on September 24, 2013. The heirs did not provide notice to NERS of the disbursement hearing.

NERS objected to the disbursement in January of 2014. NERS sought payment from the Estate of its statutory two percent cost advance and its statutory ten percent service charge from the total foreclosure surplus. § 45.034(7), Fla. Stat. (2013). The trial court agreed with NERS and ordered the Estate to pay NERS $2,292.44, representing twelve percent of the foreclosure surplus. The Estate has challenged the order on several grounds.

We conclude that once NERS had been appointed as surplus trustee, the trial court should not have disbursed surplus foreclosure funds to the heirs without notice to NERS of the disbursement hearing. At such a hearing, the trial court has the discretion to determine the surplus trustee’s entitlement to a cost advance and service charge, even though circumstance might have contrived against the surplus trustee obtaining a disbursement order. Nat’l Equity Recovery Servs., Inc. v. Midfirst Bank, 8 So.3d 406, 408 (Fla. 4th DCA 2009). In this instance, NERS did not obtain a disbursement order because it learned, before the one-year deadline for completing its work, that the funds already had been disbursed to the heirs.

We reverse the order on appeal and remand the case to the trial court for an evidentiary hearing that will allow NERS to establish its right to a two percent cost advance and to demonstrate, based on its performance as the appointed surplus trustee, its entitlement to a service charge.

Reversed and remanded with instructions.

WELLS, J., concurs.

SHEPHERD, Senior Judge,

concurring.

I concur in the reversal of this case for further proceedings, but only on due process grounds, because it appears from the record that National Equity Recovery Services, Inc. (NERS) did not receive notice of the hearing on the order of disbursement, despite the fact that NERS had been appointed surplus trustee pursuant to section 45.032(3)(c) of the Florida Statutes more than nine months before the disbursement.

I write only to add that I believe it is premature for the majority to order an evidentiary hearing “to determine the appropriate amount of statutory fees.” NERS’ entitlement to a fee in this case is strictly governed by statute:

(7) A surplus trustee is entitled to the following service charges and fees which shall be disbursed by the clerk and payable from the surplus:
(a) Upon obtaining a court order, a cost advance of 2 percent of the surplus.
(b) Upon obtaining a court order disbursing the surplus to the owner of record, a service charge of 10 percent of the surplus.

§ 45.034(7), Fla. Stat. (2013).

Placing its primary reliance on National Equity Recovery Services, Inc. v. Midfirst Bank, 8 So.3d 406 (Fla. 4th DCA 2009), the majority suggests the requirements of the statute are discretionary. I disagree. Absent true legerdemain by the heirs or their counsel (see Maj. Op. at p. 1270 suggesting “circumstances may have contributed against the surplus trustee obtaining a disbursement order”), NERS must satisfy the plain language of section 45.034(7) in order to recover any cost advance or service fee.

National Equity Recovery Services, Inc. v. Midfirst Bank is distinguishable from the case before us because in that case, there were two competing, eligible recipients of the ten-percent service fee in question in the case. One of them, Homeworks Recovery Services had obtained the two-percent cost advance by court order in its capacity as the statutorily appointed surplus trustee as authorized by the statute in existence at the time. See § 45.034(7), Fla. Stat. (2007). The other, the same NERS that is a party to this case, secured the actual release of the surplus funds and was found by the district court to have an equal claim with Homeworks Recovery Services on the service fee in its capacity as the statutory assignee of the owner of the funds under a related provision of the surplus recovery law. See § 45.033(3), (5), Fla. Stat. (2007). It was under this set of facts that the court ordered a division of the service fee.

In this case, we do not have two competing, legally entitled entities, both of whom have performed a service. Rather, we have a single entity, NERS, which is entitled to a fee only if it satisfies certain statutory requirements. Midfirst Bank cannot be read to authorize discretionary disbursements of the statutory service fee in all circumstances.

Accordingly, on the facts of this case, I would remand for consideration of whether NERS satisfied the requirements of section 45.034(7) and, if not, whether it has any legal defense, such as legerdemain by the heirs and their counsel, for not doing so.

      . Since we axe unwinding the entire proceeding, the heirs should also be permitted to pose any challenges they have to the statute itself, including takings challenges.


author: SHEPHERD, Senior Judge.

text:
    Harriette WILSON-GREENE, Appellant, v. The CITY OF MIAMI, et al., Appellees.
    No. 3D14-3094
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017

      Lindsey M. Tenberg (Lighthouse Point), for appellant.
    Walton Lantaff Schroeder & Carson and Stephanie M. Suarez and Michael H. Ga-lex; Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City Attorney, for appellees.
    Before SUAREZ, C.J., and SALTER, J., and SHEPHERD, Senior Judge.
   SHEPHERD, Senior Judge.

This is an appeal from an order granting summary judgment on liability in favor of a building owner and a maintenance company in a slip-and-fall accident case. We affirm.

Factual and Procedural Background

The accident in this case occurred in May 2008 at the lobby elevator bank at Miami Riverside Center, a building owned by the City of Miami. Vista Maintenance Services, Inc., had the maintenance contract for the building at the time of the accident. On the day of the incident, the plaintiff, Harriette Wilson-Greene, arrived at the building between 11:00 a.m. and noon to deliver some paperwork to the inspection division of the City Building Department, located on the second floor of the building. According to her own testimony, she took an elevator from the lobby to the second floor, just as she had done on two or three prior occasions. She did not see any substance on the floor before she entered the elevator nor did she see any substance on the floor during her previous visits to the building.

Wilson-Greene testified she spent “longer than 15 minutes” on the second floor conducting her business, and then returned to the lobby using an elevator in the same elevator bank. According to her testimony, after taking just a couple of steps out of the elevator, Wilson-Greene slipped and fell backwards in the hallway between the two facing banks of elevators that serve the building, hit her head, and lost consciousness. When she regained consciousness, she observed a green substance all over her feet, sandals, between her legs, and on parts of her upper body. She also testified the substance was “not hot.” The building incident report, which the parties stipulated was authentic, states the accident occurred at 11:15 a.m. and the substance was “soup that was on the floor in the hallway of the elevators.” Wilson-Greene said the manager of the building’s security company told her the substance was green pea soup. Although there is a restaurant in the lobby of the building, there is no evidence in the record that the restaurant was serving pea soup that day.

Vista moved for summary judgment on the ground that it did not owe Wilson-Greene a legal duty to “constantly patrol and supervise the area where the incident occurred.” Alternatively, if the court found it did owe a duty to Wilson-Greene, Vista argued it had no actual or constructive notice of the dangerous condition. At the hearing on Vista’s motion for summary judgment, the City ore tenus moved for summary judgment on the same grounds. The trial court granted summary judgment in favor of both Vista and the City, and Wilson-Greene appeals from the judgments.

Analysis

“The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party.” Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). A negligence claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Bartsch v. Costello, 170 So.3d 88, 86 (Fla. 4th DCA 2015). Generally,

[t]he duty of the landowner to a business invitee is to maintain the premises in a reasonably safe condition and to warn the invitee of latent perils which are known or should be known to the owner but which are not known to the invitee or which, by the exercise of due care could not be known to him.

Storr v. Proctor, 490 So.2d 135, 136 (Fla. 3d DCA 1986). Where a contract exists, “a defendant’s liability extends to persons foreseeably injured by his failure to use reasonable care in performance of a contractual promise.” Maryland Maint. Serv., Inc. v. Palmieri, 559 So.2d 74, 76 (Fla. 3d DCA 1990).

The pertinent language of the maintenance contract between Vista and City provides that Vista is to “pay close attention to the 3-story lobby area” and “not to underestimate the lobby requirements ... as this is a critical area of importance.” Additionally, the contract states that Vista is to “police [the] area and rearrange furniture on a daily basis.” Wilson-Greene argues, based upon this language, a reasonable jury could hold Vista liable for failing to use “reasonable and ordinary care” in meeting its contractual obligations. We disagree. Wilson-Greene’s argument, reduced to its essentials, is that Vista owed a duty to the building patrons constantly to patrol and supervise the area where the accident occurred. We believe Wilson-Greene reads more into the contract than the contract language can bear. The contract language did not create a contractual duty on Vista constantly to patrol the building. Nor, we add, does the language of the contract, which performed a dual function as the bid documentation to the City before the contract was awarded, hold Vista and the City to a heightened duty of care. We recognize that “[w]here an express provision within a professional services contract provides for a heightened standard of care ..., the professional must perform in accordance with the terms of the contract.” Sch. Bd. of Broward Cnty. v. Pierce Goodwin Alexander & Linville, 137 So.3d 1059, 1065-66 (Fla. 4th DCA 2014) (citing CH2M Hill Se., Inc. v. Pinellas Cnty., 698 So.2d 1238, 1240 (Fla. 2d DCA 1997) (“[I]f the professional contracts to perform duties beyond those required by ordinary standards of care, the quality of that performance must comport with the contractual terms.”). In this case, while the contract does emphasize the importance of maintenance in the lobby area of the building, as in School Board of Broward County, the language is insufficient to place a heightened standard of care on Vista.

Additionally, there were no permissible inferences upon which Wilson-Greene could rely in defense of the motions for summary judgment to demonstrate the existence of constructive notice.

In order for a plaintiff to recover for injuries received in a slip and fall, the plaintiff must show that the defendant responsible for the premises had actual or constructive notice of the dangerous condition. Constructive notice may be shown by presenting evidence that the condition existed for such a length of time that in exercise of ordinary care, the defendant should have known of the condition, or by showing that the cofndition occurred with regularity and, consequently, was foreseeable.

Palmieri, 559 So.2d at 76; see also § 768.0755, Fla. Stat. (2010). In the instant case, there is no actual notice because no one saw the substance spill on the floor and no one knows how it got there. Thus, we are left to consider whether Vista and the City had constructive notice of the dangerous condition.

When considering whether there is an issue of fact for submission to a jury in transitory foreign substance cases, courts look to the length of time the condition existed before the accident occurred. Dominguez v. Publix Super Markets, Inc., 187 So.3d 892, 894 (Fla. 3d DCA 2016). In this case, the jury would have to stack inferences to conclude that Vista and the City had constructive notice of a dangerous condition. Although it is true that a non-moving party to a summary judgment motion may set forth a genuine issue of material fact through “justifiable inferences from facts presented to the trial court,” Carbonell v. BellSouth Telecommunications, Inc., 675 So.2d 705, 706 (Fla. 3d DCA 1996), the stacking of inferences is not permitted. See Cohen v. Arvin, 878 So.2d 403 (Fla. 4th DCA 2004). The rule on the impermissible stacking of inferences provides:

[I]n a civil case, a fact may be established by circumstantial evidence as effectively and as conclusively as it may be proved by direct positive evidence. The limitation on the rule simply is that if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.

Cohen at 405 (quoting Gelco Convention Servs. v. Pettengill, 710 So.2d 581, 583 (Fla. 4th DCA 1998)). In the instant case, additional facts are needed in order to reach the conclusion that the soup was on the floor long enough to cool without assuming other facts - such as that the soup was hot prior to it being spilled. The mere presence of soup which is “not hot” on the floor is not enough to establish constructive notice as to Vista or the City.

Wilson-Greene relies heavily on Teate v. Winn-Dixie Stores, Inc., 524 So.2d 1060 (Fla. 3d DCA 1988), for the argument that because the soup was “not hot” the jury could infer it was there for a substantial period of time for Vista and the City to have known of its existence. We find Teate distinguishable from the instant case. Teate slipped and fell on some peas in the frozen food department of a Winn-Dixie supermarket. The plaintiff introduced evidence showing there was some water on the floor around the peas and no employee had cleaned the area for fifteen to twenty minutes before the fall. Thus, Teate alleged the water was there because the peas had been on the floor for some time and had thawed. Although Winn-Dixie countered that the water was a result of “permafrost” or ice crystals on the bag of peas that instantly melted when it hit the floor, Teate argued the jury could choose to believe this argument or could find the peas had been on the floor for a sufficient time to put Winn-Dixie on notice of the dangerous condition. Unlike in the instant case, the resolution of the issue in Teate did not require the jury to build one inference on another. The court properly reasoned,

[s]ince it was established that there was some water on the floor, it was completely within the jury’s province to decide why the water was there. The jury needed to draw only one inference from direct evidence to reach a decision as to the defendant’s constructive notice of the condition. It was entitled to believe Teate and to select the inference that it did.

Id,

We conclude that where melting substances are involved, there is no need to infer the substance was previously frozen. Logic tells us that is a given. In the instant case, the jury first would need to infer that the substance was hot prior to spilling on the floor and infer from this that it was on the floor a sufficient amount of time for it to have cooled. This requires a jury to impermissibly stack inferences. We distinguish the other melting substances cases cited by Wilson-Greene for the same reasons. See Camina v. Parliament Ins. Co., 417 So.2d 1093, 1094 (Fla. 3d DCA 1982) (finding that plaintiffs slip and fall on thawed ice cream, which was “dirty and splattered,” was “susceptible of the inference that the condition existed beforehand ... so as to make the issue of the defendant’s constructive notice of the condition one to be resolved by the jury”); Grizzard v. Colonial Stores, Inc., 330 So.2d 768, 769 (Fla. 1st DCA 1976) (where the substance plaintiff slipped on “was identified as partially frozen, partially liquefied orange juice concentrate” the court concluded, “a jury could find that the substance on the floor was there long enough to partially thaw”).

For the foregoing reasons, the trial court properly granted summary judgment in favor of Vista and the City. Because we determine the lack of duty and constructive notice to be dispositive, we decline to address other arguments raised by Wilson-Greene. We therefore, affirm.

Affirmed.

      . The restaurant is not a party to this appeal.


text:
    Femi ADEOYE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4994
    District Court of Appeal of Florida, First District.
    Opinion filed January 26, 2017.
    Femi Adeoye, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal was unnecessary because Petitioner timely initiated an appeal, pending under case number 1D16-3432. The petition is therefore denied.

OSTERHAUS, JAY, and WINSOR, JJ., CONCUR.


text:
    M.S., Father of R.S., C.S. and J.S., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D16-3860
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 30, 2017

      Ryan Thomas Truskoski, Special Assistant, and Jeffrey Deen, Appellate Counsel, Office of the Criminal and Civil Regional Counsel, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellee.
    David Paul Krupski, Appellate Counsel, Guardian ad Litem Program, Sanford, for Guardian ad Litem.
   PER CURIAM.

The father, M.S., appeals an order adjudicating his teenage sons dependent. He contends that the trial court’s order was not supported by competent, substantial evidence. We agree.

After observing that the evidence presented by the Department of Children and Families (DCF) was “less than overwhelming,” the trial court nevertheless adjudicated the children dependent based on the father’s recent arrests on drug-related charges. Evidence that a parent has used illegal drugs, standing alone, is insufficient to support a finding of dependency. See, e.g., S.S. v. Dep’t of Child. & Fams., 81 So.3d 618, 621-22 (Fla. 1st DCA 2012). Here, DCF failed to present any evidence as to the circumstances surrounding the father’s arrests or any evidence that the father’s alleged drug-related actions harmed the children.

REVERSED and REMANDED for entry of an order denying DCF’s petition for dependency.

SAWAYA, TORPY and EVANDER, JJ., concur.

      . There was no evidence that the father had been incarcerated as a result of his arrests.

      . Section 39.01(30)(g), Florida Statutes (2016), provides that "harm” to a child’s health or welfare can occur where a person exposes a child to a controlled substance or alcohol. Exposure to a controlled substance or alcohol is established by:
      2. Evidence of extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage.
      § 39.01(30)(g)2„ Fla. Stat. (2016).


author: WINSOR, J.

text:
    Joseph Christopher KNIGHT, Appellant, v. Katie Lorraine KNIGHT, Appellee.
    CASE NO. 1D16-2382
    District Court of Appeal of Florida, First District.
    Opinion filed January 31, 2017.
    Lucas J. Taylor of Sellers, Taylor & Morrison, P.A., Live Oak, for Appellant.
    Donald R. Curtis, III, of The Curtis Law Firm, P.A., Perry, for Appellee.
   WINSOR, J.

This is an appeal about child support. Joseph and Katie Knight — referred to here as the father and mother — divorced in 2014. For some time after that, they had equal time-sharing of their minor son, and the father was obligated to pay child support of approximately $200 per month. Later, after the father failed to exercise his timesharing responsibilities — essentially yielding full custody to the mother — the mother sought and obtained an order increasing the father’s monthly child-support obligation. The father now appeals that order, arguing that the trial court improperly calculated the new amount and wrongly applied the new figure retroactively.

I.

First, the father argues that the trial court was wrong to use the so-called “gross-up method” found in section 61.30(ll)(b), Florida Statutes (2015). That provision, which adjusts the guideline amount, applies only if a parenting plan, court-ordered time-sharing schedule, or agreed time-sharing arrangement “provides that each child spend a substantial amount of time with each parent.” Id. Because “substantial amount of time” translates to “at least 20 percent of the overnights of the year,” id. at (ll)(b)(8), and because the child spends less than twenty percent of his nights with the father, the trial court should not have used the gross-up method.

The mother defends the trial court’s decision by arguing that the trial court has discretion to deviate from the guidelines, irrespective of section 61.30(ll)(b). That is true as a general matter, but any deviation beyond five percent of the guideline amount requires a written finding “explaining why ordering payment of [the] guideline amount would be unjust or inappropriate.” § 61.30(l)(a), Fla. Stat. (2015); see also Reynolds v. Reynolds, 668 So.2d 245, 246-47 (Fla. 1st DCA 1996). There was no such finding here, and the deviation exceeded five percent. We therefore reverse. On remand, the trial court must either establish an amount within five percent of the guideline amount or make an appropriate finding justifying an alternate award.

II.

The father also argues that the trial court was wrong to make its child-support order retroactive. Although the amount of the retroactive award was improperly calculated, the trial court was correct to award relief retroactively. Section 61.30(ll)(c), which authorizes a modification based on a parent’s failure to regularly exercise time-sharing, also provides that “[a] modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.” On remand, the trial court should retroactively apply the new amount.

REVERSED and REMANDED.

B.L. THOMAS and ROWE, JJ., CONCUR.


author: EDWARDS, J.

text:
    BONAFIDE PROPERTIES, LLC As Trustee Only, Under The 8703 Athena Ct. Land Trust, Appellant, v. E-TRADE BANK, Gene R. Belden, Marie G. Harrington, SunTrust Bank and Bellechasse Master Homeowners Association, Inc., Appellees.
    Case No. 5D16-136
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017

      Heather A. DeGrave, of Walters Levine, P.A., Tampa, for Appellant,
    Daniel S. Mandel, Melisa Manganelli, and Matthew Leider, of Law Offices of Mandel, Manganelli & Leider, P.A., Boca Raton, for E-Trade Bank, Appellee.
    No Appearance for other Appellees.

      . By an order dated November 17, 2016, counsel for Appellant was permitted to withdraw as counsel after the briefing was completed.

   EDWARDS, J.

This is an appeal from a final judgment of foreclosure, in which Bonafíde Properties, LLC (“Appellant”), asserts, inter alia, that E-Trade Bank (“E-Trade”) lacked standing. E-Trade relied upon an assignment of the mortgage that it made to itself as attorney-in-fact for BAC Home Loans Servicing, LP (“BAC”), a prior holder of the note and mortgage. We find that E-Trade failed to prove that it had authority to assign the mortgage to itself; therefore, the trial court erred by denying Appellant’s motion for involuntary dismissal. Accordingly, we reverse.

The original note and mortgage were executed in 2006 by Gene Belden and Marie Harrington (“borrowers”) in favor of Countrywide Home Loans, Inc. (“Countrywide”). The note contained an undated in-dorsement in blank from Countrywide. In 2009, Mortgage Electronic Registration System, Inc. (“MERS”), as nominee for Countrywide, assigned the mortgage “together with the note and each and every other obligation described in said mortgage and the money due and to become due thereon” to BAC.

In 2010, BAC instituted a foreclosure action against the borrowers and filed the original note and mortgage with the court. BAC dismissed that action without prejudice in August 2012. In 2013, Bayview Loan Servicing, LLC (“Bayview”), the ser-vicer of the loan since December 2011, sent a notice of default and intent to accelerate to the borrowers.

In May 2014, E-Trade filed its verified foreclosure complaint together with copies of the note, mortgage, and an assignment of the mortgage purportedly from BAC to E-Trade. The assignment was executed by E-Trade as attorney-in-fact for BAC. Appellant contested the validity of the assignment in its motion to dismiss and in its answer on the basis that there was no power of attorney attached to or alleged in the complaint.

At the beginning of the trial, the parties indicated that the only issues to be resolved were standing and the amount of damages. E-Trade presented one witness, Juan Pesantes, a litigation manager employed by Bayview. Over Appellant’s objections, E-Trade used Pesantes’ testimony to introduce into evidence the original note and mortgage, copies of the mortgage assignments, notice of default, a power of attorney between E-Trade and Bayview, the servicing agreement between E-Trade and Bayview, and the loan payment history. Appellant moved for an involuntary dismissal, asserting that the assignment of the mortgage from BAC to E-Trade was invalid because there was no evidence that E-Trade had authority to assign the mortgage to itself. The trial court denied the motion and entered a final judgment of foreclosure in favor of E-Trade.

Appellant argues that the assignment of the mortgage was insufficient to establish standing and was invalid because E-Trade did not establish by competent substantial evidence that it had the authority to transfer the mortgage to itself on behalf of BAC. “A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (citations omitted). “A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note.” Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013) (citing McLean, 79 So.3d at 173). “Absent evidence of the plaintiffs standing, the final judgment must be reversed.” Lacombe v. Deutsche Bank Nat’l Trust. Co., 149 So.3d 152, 156 (Fla. 1st DCA 2014) (emphasis added).

Here, E-Trade did not introduce any evidence at trial establishing that it was the attorney-in-fact for BAC. The evidence only established the existence of a power of attorney relationship between E-Trade and Bayview. Because Appellant raised the issue in its initial motion to dismiss, its answer, and again during trial, E-Trade was required to establish that it did, in fact, have the authority to convey the mortgage from BAC to itself. See Figueroa v. Federal Nat’l Mtg. Ass’n., 180 So.3d 1110, 1115 (Fla. 5th DCA 2015).

E-Trade’s standing depended upon proof that the assignment from BAC to E-Trade was valid; thus, its lack of proof on that point was fatal to E-Trade’s right to foreclose. Id. Accordingly, the trial court reversibly erred by failing to grant Appellant’s motion for involuntary dismissal. We have carefully considered, but need not discuss, the remaining issues raised by the parties as the resolution of the standing issue requires remand for entry of an involuntary dismissal.

REVERSED and REMANDED, with INSTRUCTIONS.

PALMER and ORFINGER, JJ., concur,


author: BERGER, J. ORFINGER, J.,

text:
    BREVARD COUNTY SHERIFF’S OFFICE, Appellant, v. Kevin Charles BROWN, Appellee.
    Case No. 5D15-3390
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017

      Jason M. Gordon and Robin M.L. Cornell, of Gordon & Cornell, Cocoa Beach, for Appellant.
    Reed C. Cary, of Law Office of Reed C. Cary, Melbourne, for Appellee.
   BERGER, J.

During the execution of a search warrant, members of the Brevard County Sheriffs Office (Brevard) located a glass pipe containing methamphetamine residue inside Kevin Brown’s 1997 Chevrolet Corvette. Thereafter, Brevard sought forfeiture of Brown’s Corvette under the Florida Contraband Forfeiture Act (FCFA). See §§ 932.701-.706, Fla. Stat. (2015). At the adversarial preliminary hearing, the trial court dismissed Brevard’s complaint, with prejudice, after concluding possession of the pipe was insufficient to establish that the Corvette was used in committing or aiding and abetting the commission of a felony. Brevard argues this was error. It insists that possession of the pipe constitutes a felony offense, regardless of how it was charged, because the pipe field-tested positive for methamphetamine and, further, that because it was unlawful for Brown to conceal the pipe in the Corvette, the Corvette was subject to forfeiture under the FCFA. We agree and reverse.

As we have previously recognized, forfeiture proceedings involve a two-step process. Patel v. State, 141 So.3d 1239, 1244 (Fla. 5th DCA 2014) (citing Gomez v. Vill. of Pinecrest, 41 So.3d 180, 184 (Fla. 2010)). The first stage, outlined in section 932.703(2), Florida Statutes (2015), involves the seizure of property. The second stage involves the actual forfeiture of property. See id. Adversarial preliminary hearings, such as the one at issue in this case, occur during the first stage of the proceedings. See § 932.703(2), Fla. Stat. (2015). The purpose of an adversarial preliminary hearing is “to determine whether probable cause exists to believe that the property was used in violation of the FCFA.” Patel, 141 So.3d at 1242; see also §§ 932.701(2)(a)12.(f), 932.703(2)(a), Fla. Stat. (2015). Only if the trial court determines probable cause exists for the seizure may the forfeiture proceed. § 932.703(2)(e), Fla. Stat. (2015).

It is unlawful to use any motor vehicle to facilitate the concealment or possession of any contraband article. § 932.702(3), (4), Fla. Stat. (2015). Section 932.701(2)(a) defines a contraband article as:

1. Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange that was used, was attempted to be used, or was intended to be used in violation of any provision of chapter 893, if the totality of the facts presented by the state is clearly sufficient to meet the state’s burden of establishing probable cause to believe that a nexus exists between the article seized and the narcotics activity, whether or not the use of the contraband article can be traced to a specific narcotics transaction.

§ 932.701(2)(a)l., Fla. Stat. (2015). Methamphetamine is a controlled substance. See § 893.03(2)(c)4., Fla. Stat. (2015). A pipe containing it is paraphernalia. See § 893.145(12), Fla. Stat. (2015). Both are contraband articles under the FCFA. See § 932.701(2)(a), Fia. Stat. (2015). Because possession of methamphetamine is a felony, any motor vehicle containing the drug is subject to forfeiture. See § 932.703(4), Fla. Stat. (2015).

Specifically, section 932.703(4) provides:

(4) In any incident in which possession of any contraband article defined in s. 932.701(2)(a) constitutes a felony, the vessel, motor vehicle, aircraft, other personal property, or real property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture. It shall be presumed in the manner provided in s. 90.302(2) that the vessel, motor vehicle, aircraft, other personal property, or real property in which or on which such contraband article is located at the time of seizure is being used or was attempted or intended to be used in a manner to facilitate the transportation, carnage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of a contraband article defined in s. 932.701(2).

§ 932.703(4), Fla. Stat. (2015) (emphasis added). Here, because the pipe located in Brown’s Corvette tested positive for methamphetamine and possession of methamphetamine is a felony, Brown’s Corvette is subject to forfeiture. See id. It does not matter whether the Corvette was used to actually transport the methamphetamine, it is subject to forfeiture if it merely “possesses” the illegal substance. See State v. Crenshaw, 548 So.2d 223, 226 (Fla. 1989) (“[P]ossessing drugs, even solely for personal use, subjects individuals not only to criminal penalties but also to forfeiture of the vehicle, boat, or aircraft in which the drugs are found. It makes no difference whether the drugs are on the seat, in the console, or in the occupant’s pocket.”); In re Forfeiture of 1987 Cadillac, Serial No. 1G6CD5186H4292327, 576 So.2d 900, 900 (Fla. 1st DCA 1991) (finding that claimant’s possession of cocaine while he was in his vehicle supports and requires forfeiture of the vehicle pursuant to section 932.703); accord United States v. One (1) 1983, Fifty-Seven Foot (57’) Gulfstream Vessel, MTV Christy Lee, Official Documentation No. 643659, 640 F.Supp. 667, 672 (S.D. Fla. 1986) (“[A] vessel is subject to forfeiture if it merely ’possesses’ the marijuana.”). Furthermore, “[t]he courts have uniformly held that a vehicle is subject to forfeiture no matter how small the quantity of contraband found.” United States v. One (1) 1982 28’ Int’l Vessel, 741 F.2d 1319, 1322 (11th Cir. 1984) (citing United States v. One 1976 Porsche 911S, VIN 911-6200323, Cal. License 090 NXC, 670 F.2d 810, 812 (9th Cir. 1979) (affirming forfeiture of automobile where .226 grams of marijuana was found in the trunk of the automobile and rejecting argument that forfeiture statute did not reach small amounts of contraband); see also One (1) 1982 28’ Int’l Vessel, 741 F.2d at 1322 (explaining that “[t]he very fact that a sufficient quantity of marijuana was present to permit testing defeats appellant’s suggestion that the amount involved was immeasurable.”)); One (1) 1983, Fifty-Seven Foot (57’) Gulfstream Vessel, 640 F.Supp. at 673 (same).

In dismissing Brevard’s forfeiture complaint, the trial court determined:

[T]he misdemeanor possession of drug paraphernalia is insufficient to establish that the Corvette was used in either committing or aiding and abetting the commission of a felony. The substance in the paraphernalia field tested positive for either methamphetamine or cocaine. Possession of either cocaine or methamphetamine is a third degree felony. However, Petitioner has failed to establish that a possessory offense has occurred.

This was error. See Jones v. State, 589 So.2d 1001, 1002 (Fla. 3d DCA 1991) (holding that quantity of the controlled substance does not have to be measurable to support a conviction for possession of such controlled substance particularly when the immeasurable amount of the substance is found on an implement used to consume the substance); see also Peterson v. State, 841 So.2d 661 (Fla. 4th DCA 2003) (finding pipe which exhibited blue colored residue resulting from positive lab test that had consumed remaining cocaine was sufficient to sustain conviction for possession of cocaine); Lupper v. State, 663 So.2d 1337, 1339 (Fla. 4th DCA 1994) (holding that trace amount of burnt cocaine residue found on altered beer can sufficient to support possession conviction). Moreover, “[f]or purposes of forefeiture, positive results in a field test furnish sufficient proof as to the existence of contraband.” One (1) 1982 28’ Int’l Vessel, 741 F.2d at 1322 (citing United States v. One (1) 1972 Wood, 19’ Custom Boat, 501 F.2d 1327, 1329-30 (5th Cir. 1974)).

“The probable cause standard applicable at the seizure stage requires only ’a showing of a “sufficient probability to warrant a reasonable belief’ that the property was used in violation of the ... Forfeiture Act.’” In re Forfeiture of 1994 Ford Explorer, Identification No. 1FMCU22XXRUC62178, 203 So.3d 992, 993-94 (Fla. 2d DCA 2016) (emphasis omitted) (quoting In re Forfeiture of Forty-Seven Video Redemption Games, 799 So.2d 221, 222 (Fla. 2d DCA 2001). Because Brevard presented sufficient evidence to establish probable cause that there was methamphetamine in the Corvette, it is entitled to the presumption found in section 932.703(4). The presumption states in relevant part:

It shall be presumed in the manner provided in s. 90.302(2) that the ... motor vehicle, ... in which or on which such contraband article is located at the time of seizure is being used or was attempted or intended to be used in a manner to facilitate the transportation, ... concealment, ... possession, ... of a contraband article defined in s. 932.701(2).

§ 932.703(4), Fla. Stat. (2015). Thus, Bre-vard adequately established probable cause to seize the vehicle.

Accordingly, we reverse the trial court’s final order dismissing the forfeiture complaint. On remand, the trial court shall reinstate the complaint, enter a finding of probable cause to support the seizure, and proceed to the next stage of the forfeiture proceedings.

REVERSED; REMANDED with instructions.

CRAGGS, A.M., Associate Judge, concurs.

ORFINGER, J., concurring specially with opinion.

ORFINGER, J.,

concurring specially.

Because possession of even the smallest amount of a controlled substance, or the residue of a controlled substance, can be a felony, I concur with the majority opinion, albeit reluctantly. See Peterson v. State, 841 So.2d 661, 662-63 (Fla. 4th DCA 2003); Gilchrist v. State, 784 So.2d 624 (Fla. 3d DCA 2001).

      . The following additional items of contraband were found in and around Brown’s home: nine grams of ecstasy, forty-three packages of pseudoephedrine, lithium batteries, coffee filters, methamphetamine, two digital scales, cannabis, small plastic baggies, one pipe that tested positive for methamphetamine, and three glass pipes that tested positive for cocaine.

      . We decline to comment on whether Brevard can sustain its burden of proof at the forfeiture trial.


text:
    Rakesh VERMA, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-5389
    District Court of Appeal of Florida, First District.
    Opinion filed February 3, 2017.
    Rakesh Verma, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is dismissed as unauthorized. See Logan v. State, 846 So.2d 472 (Fla. 2003).

ROBERTS, C.J., WOLF and B.L. THOMAS, JJ., CONCUR.


text:
    Pete MCMANUS, Appellant, v. GAINESVILLE HOUSING AUTHORITY; Shirley Jones, Mgr.; John Cherry, Dir.; Bernadette Woody, Asst. Dir.; Vince Marino, Supr.; Barbara Richardson, Sec. 8 Dir.; Gainesville Florida Housing Corp.; Alachua County Housing Authority; Gail Monihan, Dir., Acha, et al; Sued Individually and Collectively, Appellees.
    CASE NO. 1D16-3455
    District Court of Appeal of Florida, First District.
    Opinion filed February 3, 2017.
    Pete McManus, pro se, Appellant.
    Joseph D. Tessitore and Frank M. Mari of Bell & Roper, P.A., Orlando, for Appel-lees.
   PER CURIAM.

The Court has determined that the appeal is untimely. Accordingly, appellees’ motion to dismiss, filed on September 8, 2016, is granted and the appeal is dismissed.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


text:
    David Joshua CRUZ, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-2699
    District Court of Appeal of Florida, First District.
    Opinion filed February 3, 2017
    David Joshua Cruz, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is dismissed as untimely filed. See Fla. R. App. P. 9.141(c)(5)(A).

ROBERTS, C.J., WOLF and B.L. THOMAS, JJ., CONCUR.


text:
    HILLSBOROUGH COUNTY SCHOOL BOARD/BROADSPIRE, Appellants, v. John E. KUBIK, Appellee.
    CASE NO. 1D16-1053
    District Court of Appeal of Florida, First District.
    Opinion filed February 10, 2017
    Debra M. Metzler of Barr, Murman & Tonelli, P.A., Tampa, for Appellants.
    Craig O. Stewart of Morgan & Morgan, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, we reverse one of the three issues presented on direct appeal, and one of the three issues presented in the cross-appeal. We affirm the remaining issues without further comment.

In the challenged order, the Judge of Compensation Claims (JCC) excluded the opinion of the expert medical advisor (EMA) about causation of the need for treatment of Claimant’s neck. On appeal, the Employer/Carrier argues that the JCC should instead have admitted the opinion into evidence without attributing to it the presumption of correctness prescribed in subsection 440.13(9), Florida Statutes. We agree. Lowe’s Home Ctrs., Inc. v. Beekman, 187 So.3d 318 (Fla. 1st DCA 2016) (holding EMA’s opinion beyond scope of inquiry was admissible but not presumptively correct). The error was not harmless because the JCC’s perception that a preexisting condition’s worsening could not create a break in the causal chain was formed without the benefit of Certistaff, Inc. v. Owen, 181 So.3d 1218 (Fla. 1st DCA 2015).

Also in this order, the JCC relied on the EMA to deny temporary total disability (TTD) benefits, despite evidence that Claimant’s authorized treating provider had taken him off work entirely and never informed him that he could return to work. On cross-appeal, Claimant argues that the JCC should instead have relied on case law holding that an injured worker can rely on an authorized treating provider’s instruction to refrain from working, “even assuming retrospective testimony that claimant could have worked during this period.” Charles v. Suwannee Swifty, 622 So.2d 114, 115 (Fla. 1st DCA 1993). We agree with Claimant that his reliance on his doctor’s instruction can support a TTD claim.

For the foregoing reasons, the case is remanded for reconsideration of the causation question given the admissible evidence, and for findings on the appropriate time period for the TTD award to which Claimant is entitled.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

LEWIS, BILBREY, and WINOKUR, JJ„ CONCUR.


text:
    Mark Steven ARD, Appellant, v. Donna J. ARD, Appellee.
    CASE NO. 1D16-2492
    District Court of Appeal of Florida, First District.
    Opinion filed February 10, 2017
    John D. Middleton of Middleton & Middleton, Melrose, for Appellant.
    Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellee.
   PER CURIAM.

In this dissolution of marriage proceeding, Mark Ard (the Husband) appeals from the nonfinal order awarding Donna Ard (the Wife) temporary support. Because the record does not contain competent, substantial evidence to support the Wife’s need for temporary alimony, we reverse and remand for further proceedings.

Although temporary awards of alimony are within the trial court’s broad discretion, they must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse’s ability to pay. Breitenbach v. Breitenbach, 838 So.2d 1266, 1267 (Fla. 2d DCA 2003); Driscoll v. Driscoll, 915 So.2d 771, 773 (Fla. 2d DCA 2005); see § 61.071, Fla. Stat. (2016). The alimony award in this case was not accompanied by any findings concerning the Wife’s need for support. Nevertheless, it appears that the award was based, in significant part, on “anticipated” household expenses the Wife testified she would incur when she moved from her mother’s home, where she had been living rent free for almost four years since the parties’ separation. The record is devoid of any evidence concerning when the Wife would actually move from her mother’s home and begin incurring these expenses. Accordingly, we conclude that there is insufficient evidence in the record to support the Wife’s present need for temporary alimony.

REVERSED and REMANDED.

B.L. THOMAS, RAY, and OSTERHAUS, JJ., CONCUR.


author: WOLF, J.

text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant/Cross-Appellee, v. ANZUALDA BROTHERS, INC., a Florida Corporation, Jesus E. Marino Castillo, Individually and as an Employee of Anzualda Brothers, Appellees/Cross-Appellees.
    CASE NO. 1D15-4700
    District Court of Appeal of Florida, First District.
    Opinion filed February 10, 2017.
    Scott A. Cole, Cole Scott & Kissane, P.A., Miami; Joseph T. Kissane, Steven L. Worley, Cole, Scott & Kissane, P.A., Jacksonville, for Appellant/Cross-Appellee.
    Lincoln J. Connolly, Trials & Appeals, P.A., Miami, for Appellee/Cross-Appellant, Anzualda Brothers, Inc.
   WOLF, J.

Appellant, Progressive Express Insurance Company, challenges the trial court’s entry of a declaratory judgment determining that there was insurance coverage in favor of appellee Anzualda Brothers, Inc. by operation of estoppel. Appellant argues it should not have to provide coverage for appellee’s accident, which resulted in the fatality of one victim and the injury of another victim, because the vehicle appel-lee had been driving was not a listed vehicle on the insurance policy, and because appellee failed to prove all three elements of its coverage by estoppel claim.

Appellee cross-appeals, alleging the trial court erred in its refusal to enforce a settlement agreement and consent judgment that were agreed to by appellant and entered in the separate, underlying tort case between appellee and the victims.

We agree with appellant that appellee failed to prove all three elements of its coverage by estoppel claim. In an insurance coverage by estoppel claim, the plaintiff must prove (1) the defendant company made a representation of material fact; (2) the plaintiff reasonably relied on that representation of material fact; and (3) the plaintiff was prejudiced by its reliance. Bishop v. Progressive Express Ins. Co., 154 So.3d 467, 468 (Fla. 1st DCA 2015). Because appellee failed to sufficiently prove prejudice, we reverse, vacate the trial court’s final judgment in favor of ap-pellee, and remand for the trial court to enter final judgment in favor of appellant.

Because we remand for the trial court to enter final judgment in favor of appellant, appellee’s cross-appeal requesting damages from appellant in the amount outlined in the settlement agreement is moot.

MAKAR and WINSOR, JJ., CONCUR.


text:
    Kwamane Quason SILAS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3335
    District Court of Appeal of Florida, First District.
    Opinion filed February 10, 2017.

      Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kwamane Quason Silas appeals from his judgment and sentence for attempted second-degree murder. He raises several arguments for reversal, only one of which has merit. Silas argues, and the State properly concedes, that the trial court improperly imposed a condition of probation requiring Silas to “obtain” a GED or high school diploma. See Taylor v. State, 185 So.3d 1281, 1281-82 (Fla. 1st DCA 2016); Aviles v. State, 165 So.3d 841, 843 (Fla. 1st DCA 2015); Rodriguez v. State, 768 So.2d 1234, 1236 (Fla. 5th DCA 2000), overruled on other grounds as stated in Mier v. State, 58 So.3d 319, 321 (Fla. 1st DCA 2011). We remand for the court to modify this condition to conform to the requirements of section 948.037(1), Florida Statutes (2014), which would require Silas to make a “good faith effort” to achieve such skills or diploma. We affirm Silas’s remaining arguments without further discussion. As the acts required by this opinion are ministerial in nature, Silas need not be present for the court to undertake them.

AFFIRMED in part; REVERSED in part; and REMANDED.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


text:
    Carrie BOATWRIGHT, Appellant, v. Mark BRANNAN, Appellee.
    CASE NO. 1D15-1264
    District Court of Appeal of Florida, First District.
    Opinion filed February 10, 2017
    Claire Cubbin, Ft. Lauderdale, for Appellant.
    Appellee Mark Brannan, pro se.
   PER CURIAM.

This is an appeal from a nonfinal order granting a temporary injunction. The order prohibited the parties from disposing of certain property during the pendency of the litigation. While the order was in place, the parties entered a settlement agreement, and the trial court entered an order purporting to dismiss the underlying case altogether.

Below, the appellant has challenged the trial court’s authority to dismiss the case with this appeal pending. That issue is not before us, and regardless of what else may remain in the trial court, the injunction on appeal now is no longer effective. Therefore, we DISMISS the appeal as moot.

MAKAR, KELSEY, and WINSOR, JJ., CONCUR.