author: SHEPHERD, Senior Judge.

text:
    HOMEOWNERS CHOICE PROPERTY & CASUALTY, etc., Appellant, v. MIGUEL MASPONS, et al., Appellees.
    No. 3D14-1310
    District Court of Appeal of Florida, Third District.
    Opinion filed January 18, 2017.
    Groelle & Salmon P.A., and Robert C. Groelle and Patrick J. Carleton (West Palm Beach), for appellant.
    Mintz Truppman and Timothy H. Crutchfield, for appellees.
    Before EMAS and LOGUE, JJ., and SHEPHERD, Senior Judge.
   SHEPHERD, Senior Judge.

This is an appeal by Homeowners Choice Property and Casualty Company from an adverse final summary judgment under a homeowners’ insurance policy. The dispositive question appears to be whether the undisputed facts of this case support the judgment of the trial court that the homeowners are entitled to indemnity under the “ensuing loss” provision of a homeowners’ insurance policy for the cost of tearing up and replacing a portion of the foundation or slab on which their home sits, necessary to reach and replace a sanitary drain line, the repair and replacement of which is not covered under the policy. The trial court found coverage to exist under this provision of the policy. We find the decision of the trial court was premature.

FACTS

The sanitary drain line in need of repair and replacement in this case is located under the kitchen floor of a home owned by Miguel and Annette Maspons in Miami-Dade County. The home was constructed in 1957 on a poured concrete slab. The sanitary drain lines for the home are located unc|er the slab and made of cast iron pipe. No one questions that this was anything other than a usual construction material or construction method for the era.

In December 2010, the Maspons noticed their kitchen sink was draining slowly. On February 8, 2011, the Maspons hired Water Leak Detectors, which determined, through the use of underground videogra-phy, that there was a break or failure in the sanitary drain line under the kitchen floor in need of repair. On March 21, 2011, a public adjuster, retained by the Mas-pons, reported to Homeowners Choice that the drain line under the floor of the property was “broken” and was causing the sink to drain slowly. On March 28, 2011, Homeowners Choice inspected the property. Using a similar non-destructive technology, Homeowners Choice’s inspector, My Plumbing Company, found a large hole in the “bottom sweep fitting” of the sanitary drain pipe that serves the kitchen, turning it toward the hall bathroom. My Plumbing Company also found a second hole in the line, and “scale” and “detritus” in other drain lines it examined. There has never been a claim that the broken drain pipe caused any water damage to the interior of the home and, despite speculation and argument of counsel, no evidence that water seepage from the pipe has caused any damage under the slab of the house. As Ms. Maspons testified in her deposition, “I won’t know what other damages there are until the broken pipe is dug up.”

Based upon this state of the record, the trial court found there was no coverage under the insurance policy for the repair and replacement of the pipe, but that Homeowners Choice was responsible for the greater cost of tearing out and replacing the slab to make the repair. Homeowners Choice appeals the latter decision.

ANALYSIS

In Florida, the insured has the burden of proving facts that bring its claim within an insurance policy’s affirmative grant of coverage. E. Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So.2d 673, 678 (Fla. 3d DCA 2005). In order to meet this burden under a policy of property damage insurance, the insured must prove (1) that the property harmed or damaged falls within the “insuring clause” of the policy, and (2) the loss claimed falls within a second, “covered perils” provision contained in each policy. See 10 Couch on Insurance § 148:2 (3d ed. 2013). The property in this case is uncontestably insured property under the Homeowners Choice insurance policy. Thus, the first prong of the coverage analysis is satisfied. It is the second coverage prong that produces the question for resolution in this case, whether the Maspons suffered a loss that also falls within the “covered perils” provision of the insurance policy. Only then might compensation be due, and then only if there is no applicable exclusion from coverage that might apply.

The “covered perils” section of the Homeowners Choice insurance policy in this case reads in pertinent part:

SECTION 1—PERILS INSURED AGAINST—
COVERAGE A—DWELLING and COVERAGE B—OTHER STRUCTURES
We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. We do not insure, however, for loss:
2. Caused by:
e. Any of the following:
(1) Wear and tear, marring, deterioration;
If any of these cause water damage, not otherwise excluded, from a plumbing, heating, air conditioning or automatic fire protection sprinkler system or household appliance, we cover loss caused by the water including the cost of tearing out and replacing any part of the building necessary to repair the system or appliance. We do not cover loss to the system or appliance from which this water escaped.

(Emphases added.)

Any analysis must begin with the language of the insurance contract. We give the undefined words of an insurance contract their ordinary meaning, just as we would with any other type of contract. See State Farm Fire & Cas. Co. v. Castillo, 829 So.2d 242, 244 (Fla. 3d DCA 2002) (“[T]erms utilized in an insurance policy should be given their plain and unambiguous meaning as understood by the ‘man-on-the-street.’”). A “loss” is the diminution of value of something, and in this case, the ‘something’ is the insureds’ house or personal property. Loss, Black’s Law Dictionary (10th ed. 2014). “Direct” and “physical” modify loss and impose the requirement that the damage be actual. Examining the plain language of the insurance policy in this case, it is clear that the failure of the drain pipe to perform its function constituted a “direct” and “physical” loss to the property within the meaning of the policy,

However, the last paragraph of the “perils insured” provision of the insurance policy, often referred to as the “ensuing loss” provision of the policy, cautions that we not prematurely abort our inquiry. That clause provides the homeowner with coverage for an “ensuing” loss that is not specifically excluded. Thus, while the exclusion for “[w]ear and tear” or “deterioration” might mean, and in this case does mean by virtue of the Maspons’ concession that Homeowners Choice is not obligated to compensate the Maspons for their corroded drain pipe, if the Maspons suffered consequential loss as a result of the corroded pipe and that consequential or “ensuing” loss is not excluded under another provision of the policy, the loss is covered. See Liberty Mutual Fire Ins. Co. v. Martinez, 157 So.3d 486, 488 (Fla. 5th DCA 2015); Murray v. State Farm Fire & Cas. Ins. Co., 219 Cal.App.3d 58, 64, 268 Cal. Rptr. 33 (Cal. Ct. App. 1990).

Happily for us, we can quickly conclude the interpretive gymnastics in which we are engaged at this point. At the time of the summary judgment proceeding, the slab had not been opened. There was no evidence that the water exiting the pipe had caused any damage to its surroundings. See Cheetham v. Southern Oak Ins. Co., 114 So.3d 257 (Fla. 3d DCA 2013) (reversing a judgment for insurer where there was evidence of damage caused by water backing into the residence up through a blocked pipe). Thus, the trial court erred by entering judgment against Homeowners Choice for the cost of the repair and replacement of the slab necessary to reach the broken pipe at this time. On the other hand, it is not inconceivable that such evidence may surface in the future. For this reason, we reverse and remand this case for entry of judgment in favor of Homeowners Choice Insurance Company, but without prejudice to the Maspons’ filing another claim of loss at a later date, if appropriate.

Reversed and remanded with directions.

      . We pause to note that unlike some policies, this insuring clause language does not require the loss to be either "sudden' or “accidental.”


source: Caselaw Access Project

author: WALLIS, J.

license: Public Domain

text:
    Roderick D’Anthony WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1348
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017
    Valarie Linnen, Atlantic Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   WALLIS, J.

Roderick D’Anthony Williams (“Appellant”) appeals his sentences for first-degree murder and kidnapping. We find that one of Appellant’s arguments on appeal warrants discussion. Appellant argues the trial court erred by denying his motion to empanel a jury to make a factual finding as to whether he actually killed, intended to kill, or attempted to kill the victim. We affirm the trial court’s denial of Appellant’s motion to empanel a jury and uphold his sentences, but we certify a question to our supreme court as one of great public importance.

In 2010, the State charged Appellant, then sixteen years old, by grand jury indictment with first-degree murder (count 1) and kidnapping (count 2) for his role in the death of James Vincent Brookins (the “victim”), whose body was discovered in the trunk of an abandoned ear in rural St. Johns County. With regard to count 1, the State charged Appellant with premeditated first-degree murder, but also included theories of felony murder and accessory to first-degree murder. Ultimately, the verdict form listed only “First Degree Murder,” without differentiating between premeditated and felony murder. The jury convicted Appellant as charged, and the trial court sentenced Appellant to life imprisonment with the possibility of parole after twenty-five years on count 1 and fifty years’ incarceration on count 2.

Appellant directly appealed his convictions and sentences, challenging several rulings on the admissibility of evidence at trial. While his direct appeal was pending, Appellant filed a Florida Rule of Criminal Procedure 3.800(b) motion to correct his sentence, reasoning that the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), rendered unconstitutional his life sentence for first-degree murder. Williams v. State, 171 So.3d 143, 144 (Fla. 5th DCA 2015). Our court agreed with Appellant, reversing and remanding for resentencing under chapter 2014-220, Laws of Florida. Id. at 145. Our court elaborated on its instructions upon remand as follows:

Because the jury did not find that [Appellant] actually possessed and discharged a firearm during the crime, the court must make a written finding as to whether [Appellant] killed, intended to kill, or attempted to kill the victim. Based on that determination, after holding the individualized hearing, the trial court may sentence [Appellant] to life imprisonment if it finds that life is an appropriate sentence. If the trial court determines that life is not an appropriate sentence, then it should sentence Appellant to a term of at least forty years’ imprisonment. Either way, unless [Appellant] has a prior conviction of a felony enumerated in section three of chapter 2014-220, Laws of Florida, arising out of a separate criminal transaction or episode, he will receive a judicial review of his sentence after fifteen or twenty-five years, depending on the court’s determination.

Id. (citations omitted).

Upon remand, Appellant moved to empanel a jury, arguing that a jury, not the trial court, must make the determination as to whether he actually killed, intended to kill, or attempted to kill the victim pursuant to Alleyne v. United States, which held that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” — U.S. —, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). The trial court denied Appellant’s motion, reasoning that our court in the predecessor case specifically ordered the trial court to make the aforementioned factual finding. After a hearing, the trial court entered an order finding that Appellant actually killed and intended to kill the victim, subsequently resentenc-ing Appellant to life imprisonment with a review hearing after twenty-five years on count 1 and fifty years’ imprisonment with a review hearing after twenty years on count 2.

“The legality of a sentence is a question of law and is subject to de novo review.” Pinkard v. State, 185 So.3d 1289, 1289-90 (Fla. 5th DCA 2016) (quoting Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005)). The relevant statutory section at issue in this case provides:

1. A person who actually killed, intended to kill, or attempted to kill the victim and who is convicted under s. 782.04 of a capital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained 18 years of age shall be punished by a term of imprisonment for life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. If the court finds that life imprisonment is not an appropriate sentence, such person shall be punished by a term of imprisonment of at least 40 years. A person sentenced pursuant to this subparagraph is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(a).
2. A person who did not actually kill, intend to kill, or attempt to kill the victim and who is convicted under s. 782.04 of a capital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained 18 years of age may be punished by a term of imprisonment for life or by a term of years equal to life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. A person who is sentenced to a term of imprisonment of more than 15 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(c).
3.The court shall make a written finding as to whether a person is eligible for a sentence review hearing under s. 921.1402(2)(a) or (c). Such a finding shall be based upon whether the person actually killed, intended to kill, or attempted to kill the victim. The court may find that multiple defendants killed, intended to kill, or attempted to kill the victim.

§ 775.082(l)(b), Fla. Stat. (2016).

In Alleyne, the defendant was convicted of robbery with a firearm. 133 S.Ct. at 2156. The applicable sentencing statute prescribed mandatory-minimum sentences of five years for carrying a weapon, seven years for brandishing a weapon, and ten years for discharging a weapon during the commission of a crime of violence. Id. at 2155-56. The jury found that the defendant used or carried a firearm during his offense, but did not find that he brandished or discharged the weapon. Iff However, the trial court nonetheless found that the defendant brandished a weapon during the commission of his offense and applied the seven-year minimum. Iff The Supreme Court reversed, reasoning that, “[bjecause the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt. The judge, rather than the jury, found brandishing, thus violating petitioner’s Sixth Amendment rights.” Iff at 2163-64.

Appellant contends that the trial court similarly erred by failing to empanel a jury to determine whether he actually killed, intended to kill, or attempted to kill the victim. Because the affirmative finding in the ease at bar increases both the mandatory-minimum from zero years to forty years—if the sentencing court determines that life is not an appropriate sentence— and the time for a sentence review hearing from fifteen years to twenty-five years, Appellant argues this issue must be determined by the jury by proof beyond a reasonable doubt.

Although Appellant’s argument initially appears to have merit, we note that our supreme court, under circumstances similar to those in this case, did not direct a jury to make the factual finding as to whether the juvenile defendant actually killed, intended to kill, or attempted to kill the victim. Falcon v. State, 162 So.3d 954, 963 (Fla. 2015). Rather, the court specifically directed the trial court to make this finding, reasoning that the record did not “conclusively establish this fact” because “the jury did not find [the defendant] to have had actual possession of a firearm during the attempted armed robbery.” Id. at 963 n.4.

In light of Falcon, we find that the trial court did not err by denying Appellant’s motion to empanel a jury. Our supreme court has expressly authorized a trial court to make the factual determination as to whether a defendant actually killed, attempted to kill, or intended to Mil a victim. See id. at 963. However, because Falcon did not address the applicability of Al-leyne—as it does not appear that either party raised that issue—we certify the following question to the Florida Supreme Court as one of great public importance:

DOES ALLEYNE V. UNITED STATES, — U.S.-, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), REQUIRE THE JURY AND NOT THE TRIAL COURT TO MAKE THE FACTUAL FINDING UNDER SECTION 775.082(l)(b), FLORIDA STATUTES (2016), AS TO WHETHER A JUVENILE OFFENDER ACTUALLY KILLED, INTENDED TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

AFFIRMED; QUESTION CERTIFIED.

EVANDER and LAMBERT, JJ., concur.


author: BERGER, J.

text:
    HOVERCRAFT OF SOUTH FLORIDA, LLC, etc., Appellant, v. Ronald E. REYNOLDS, Joseph T. Fischer, et al., Appellees.
    Case No. 5D15-2629
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017

      Mark D. Shuman, of GrayRobinson, P.A, Melbourne, for Appellant.
    James P. Beadle, of Spira, Beadle & McGarrell, P.A., Palm Bay, for Appellees Edmund Seijo, David Kaleel and Lesa Ka-leel.
    Patricia K. Olney, of Patricia K. Olney, P.A., Merritt Island, for Appellees Ronald E. Reynolds, Joseph T. Fischer and Eleanor O. Fischer.
    No Appearance for remaining Appellee.
   BERGER, J.

Hovercraft of South Florida, LLC, appeals the trial court’s order granting attorney’s fees to Ronald E. Reynolds, Joseph T. and Eleanor Fischer, Edmund Seijo, and David and Lesa Kaleel (collectively Appellees). Hovercraft argues that the trial court erred in finding that Appellees were entitled to attorney’s fees despite their failure to file a motion for attorney’s fees within thirty days after the final judgment. We agree and reverse.

The underlying case involved a dispute over the right to use four recreational boat slips in a marina owned by Hovercraft. On June 29, 2010, the case was resolved against Hovercraft by entry of a consolidated final judgment in favor of Appellees that awarded Appellees damages and in-junctive relief. The judgment was split into four sections: one each for Reynolds, Sei-jo, the Fischers, and the Kaleels. The following language was included in each section: “The Court reserves jurisdiction to determine attorney’s fees and costs.”

On June 30, 2010, Hovercraft filed a motion for new trial and/or rehearing. The motion was denied on November 24, 2010. Thereafter, on December 15, 2010, Seijo and Kaleel filed their Motion for Entry of Final Judgment for Attorney’s Fees. Reynolds and Fischer filed their motion for attorney’s fees on December 22, 2010. Appellees argued that the consolidated final judgment reserved jurisdiction to determine the amounts of attorney’s fees to which the prevailing parties were entitled.

On March 14, 2013, the trial court held a hearing on the attorney’s fees issue. The issue was whether Appellees were entitled to attorney’s fees in light of the fact that they had filed their request for fees, pursuant to Florida Rule of Civil Procedure 1.525, outside of the thirty-day window after the filing of the final judgment. Citing AmerUs Life Insurance Co. v. Lait, 2 So.3d 203 (Fla. 2009), Appellees argued that if a party prevailed in a case and the trial court reserved jurisdiction on the issue of attorney’s fees, the thirty-day requirement did not apply.

In response, Hovercraft asserted that Appellees misread AmerUs and that the thirty-day deadline is only inapplicable when the trial court determines a party’s entitlement to attorney’s fees in the final judgment and reserves jurisdiction only on the amount of the attorney’s fees. Here, Hovercraft argued, the trial court merely reserved jurisdiction on the issue of attorney’s fees without identifying which party was entitled to recover.

After the hearing, but before the trial court ruled, Seijo and Kaleel filed a Florida Rule of Civil Procedure 1.090(b) motion for entry of an order allowing the late filing of the motion for entry of a judgment for attorney’s fees and costs. In the motion, Seijo and Kaleel argued that the parties had “worked together regarding various procedural/timing matters” and that Hovercraft had previously communicated with Appellees with the understanding that they were entitled to attorney’s fees. Seijo and Kaleel maintained that they had relied on that course of conduct in determining that it was unnecessary to comply with the thirty-day requirement of rule 1.525. Seijo and Kaleel noted that they waited to file their motion for attorney’s fees until after the trial court entered an order on Hovercraft’s motion for rehearing and that “[i]t is not an uncommon practice between members of the local bar to agree to not hold themselves to filing time lines.”

Hovercraft opposed the motion, arguing that Seijo and Kaleel’s failure to file a timely motion for attorney’s fees was not the result of excusable neglect. It also noted that, while the parties had “freely extended courtesies” to each other, Hovercraft’s actions could not have “lulled” Seijo and Kaleel into believing they did not need to comply with procedural deadlines.

The trial court ultimately entered an order granting attorney’s fees and costs to Appellees. The trial court cited to AmerUs in finding that Appellees were the prevailing parties at trial and were entitled to attorney’s fees. The trial court added that Appellees’ entitlement to attorney’s fees had already been determined, thus eliminating the need for the thirty-day requirement of rule 1.525. As an alternative basis, the trial court determined Appellees established excusable neglect. This appeal followed.

Rule 1.525 establishes a bright-line time requirement for motions seeking attorney’s fees and costs. It states:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

Fla. R. Civ. P. 1.525, The rule sets forth an outside deadline of thirty days for service of the motion. Barco v. Sch. Bd. of Pinellas Cty., 975 So.2d 1116, 1124 (Fla. 2008). The thirty-day time limit is not tolled by a motion for rehearing. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1st DCA 2010). Though an extension of time may be granted, absent excusable neglect, a motion seeking an extension must be filed within the thirty-day time period. See Fla. R. Civ. P. 1.090(b); see also Hart v. City of Groveland, 919 So.2d 665, 668 (Fla. 5th DCA 2006) (“[A]n extension of time to file a motion for costs and attorney’s fees, provided by Florida Rule of Civil Procedure 1.090(b) must be filed within the 30-day period, unless excusable neglect can be established.” (citing Lyn v. Lyn, 884 So.2d 181, 185 (Fla. 2d DCA 2004))).

Appellees’ attempt to use AmerUs to support their argument that the thirty-day requirement did not apply is misguided. In AmerUs, the final judgment included a statement that the defendant was “liable to the plaintiff’ for attorney’s fees. 2 So.3d at 204. By contrast, here, the trial court did not make any statement suggesting Appellees were entitled to attorneys’ fees at the time of filing the final judgment, The final judgment simply states, “[t]he Court reserves jurisdiction to determine attorney’s fees and costs.” This is a distinction with a difference.

Reserving jurisdiction to award fees does not override the thirty-day requirement of rule 1.525. Hart, 919 So.2d at 668. In order to avoid the thirty-day requirement, the judgment itself must determine entitlement to attorney’s fees and costs and reserve jurisdiction only as to the amount owed. AmerUs, 2 So.3d at 207-OS. Contrary to the trial court’s determination, the final judgment in this case did not determine entitlement to attorney’s fees. As such, Appellees were required to file their motion for fees within thirty days of entry of the final judgment. This they did not do. As such, it was error to determine otherwise.

With regard to Seijo and Kaleel, our analysis does not end here. Inasmuch as they filed a rule 1.090(b) motion for extension of time to file their motion for attorney’s fees three years after entry of the consolidated final judgment, we must now determine whether the trial court erred in granting the motion for fees on the alternative theory of excusable neglect.

Rule 1.090(b) provides:

(b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.

Fla. R. Civ. P. 1.090(b) (emphasis added).

We review a trial court’s finding of excusable neglect for an abuse of discretion. See Dep’t of Transp. v. Southtrust Bank, 886 So.2d 393, 396 (Fla. 1st DCA 2004) (citing Lyn, 884 So.2d at 185). This Court has previously held that the proper standard for determining excusable neglect in failing to comply with a procedural rule involves taking “into account all of the relevant circumstances, including prejudice to the other party, the reason for the delay, the duration of the delay, and whether the movant acted in good faith.” Carter v. Lake Cty., 840 So.2d 1153, 1157 (Fla. 5th DCA 2003) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). However, an attorney’s ignorance or misunderstanding of the law does not constitute excusable neglect. Peterson v. Lake Surprise II Condo. Assoc., 118 So.3d 313, 313 (Fla. 3d DCA 2013) (“A conscious decision not to comply with the requirements of the law cannot be ‘excusable neglect’ under the rule or any other equivalent requirement.”); Geer v. Jacobsen, 880 So.2d 717, 720-21 (Fla. 2d DCA 2004) (“The attorney’s errors, even if constituting mistakes of law, tactical errors, or judgmental mistakes, do not constitute excusable neglect. Similarly, an attorney’s inadvertence or ignorance of the rules does not constitute excusable neglect.” (citations omitted)); Carter, 840 So.2d at 1158 n.6 (“Generally, the courts do not find excusable neglect in the attorney’s misunderstanding or ignorance of the law or rules of procedure.”); see also State Farm Mut. Auto, Ins. Co. v. Isom, 681 So.2d 1170, 1172 (Fla. 5th DCA 1996) (concluding rule 1.540 does not provide relief for judgmental mistakes, tactical errors of counsel, or mistakes of law, but only mistakes resulting from oversight, neglect, or accident). Generally, courts are inclined to find excusable neglect “when the error occurs due to a breakdown in the mechanical or operational practices of the attorney’s office equipment or staff.” Boudot v. Boudot, 925 So.2d 409, 416 (Fla. 5th DCA 2006) (citing Carter, 840 So.2d at 1158 n.6)).

The trial court provided no basis for its conclusion that excusable neglect was established. On the record before us, it appears that the failure to timely file the motion for attorney’s fees was due to counsel’s erroneous conclusion that the motion for rehearing tolled the time for filing. We come to this deduction based on the timing of Appellees’ motion, which was filed within thirty days after entry of the order denying Hovercraft’s motion for rehearing. This conclusion is buttressed by counsel’s argument at the March 14, 2013 hearing that, among other reasons, “the motion for fees was filed when it was filed because at that point, the judgment was final.” This type of legal mistake does not constitute excusable neglect. See Peterson, 118 So.3d at 313; Geer, 880 So.2d at 720-21; Carter, 840 So.2d at 1158 n.6.

The record is also devoid of any evidence or reference, by way of motion or argument, suggesting “a breakdown in the mechanical or operational practices of the attorney’s office equipment or staff.” Boudot, 925 So.2d at 416 (citing Carter, 840 So. 2d at 1158 n.6). Finding none, we conclude that the trial court abused its discretion when it found excusable neglect. Moreover, inasmuch as Reynolds and Fischer never moved for an enlargement of time to file their motion for fees and, thus, never raised the issue of excusable neglect, it was an abuse of the trial court’s discretion to find excusable neglect had been established as to them.

Accordingly, we reverse the order of the trial court and remand for entry of an order striking the award of attorney’s fees and costs.

REVERSED and REMANDED.

WALLIS, J., and ORFINGER, M.S., Associate Judge, concur.

      . Notably, Appellees filed their respective motions for attorney’s fees within thirty days of the trial court’s order denying Hovercraft’s motion for rehearing. This strongly suggests Appellees were aware they were required to file the motion and mistakenly believed the thirty-day requirement set forth in Florida Rule of Civil Procedure 1.525 was tolled while the motion for rehearing was pending.

      , As for Reynolds and Fischer, this is fatal to their cause. Because neither party sought an extension of time under rule 1.090(b) to file their motion for fees, this ends our analysis as to them.

      . A similar argument was made by counsel for Reynolds and Fischer at the March 14, 2013 hearing and in their answer brief in this appeal.

      . At the March 14, 2013 hearing on Hovercraft’s objection to Appellees’ motion for fees, no party raised excusable neglect as a reason for failing to file their motion during the thirty-day time limit established by rule 1.525. The issue was not raised until May 2, 2013, when the motion to permit late filing was submitted. The trial court determined excusable neglect was established without taking testimony or conducting any further inquiry beyond what was alleged in Appellees’ motion and Hovercraft's written objection.


author: ORFINGER, J.

text:
    John Franklin DUKE, Appellant, v. Heather DUKE, Appellee.
    Case No. 5D16-120
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017

      Moses R. Dewitt, of Dewitt Law Firm, P.A., Orlando, for Appellant.
    Jonathan R. Simon, of The Orlando Family Firm, Orlando, for Appellee.
   ORFINGER, J.

John Duke (“Former Husband”) appeals the trial court’s final judgment dissolving his marriage to Heather Duke (“Former Wife”). We reverse the alimony award, the attorney’s fees award, the requirement that Former Husband maintain life insurance, and the parenting plan. We affirm as to the remaining issues without comment.

The parties were married for twenty-five years before Former Wife filed a petition for dissolution of marriage. At the time of the petition, they had one minor child. Following a non-jury trial, the trial court entered a final judgment of dissolution of marriage, which was subsequently amended after a motion for rehearing. The final judgment, in relevant part, ordered Former Husband to pay permanent periodic alimony, child support, attorney’s fees, and a reimbursable lump sum to Former Wife for alternate housing. It also required Former Husband to maintain life insurance with Former Wife named as the beneficiary and established a parenting plan.

Typically, courts review dissolution of marriage final judgments as a whole for an abuse of discretion. Vitalis v. Vitalis, 799 So.2d 1127, 1130 (Fla. 5th DCA 2001). This includes alimony awards, Dennison v. Dennison, 852 So.2d 422, 424 (Fla. 5th DCA 2003), attorney’s fees awards, Kelly v. Kelly, 925 So.2d 364, 369 (Fla. 5th DCA 2006), requirements that a party maintain life insurance, Nelson v. Nelson, 795 So.2d 977, 986 (Fla. 5th DCA 2001), parenting plans, Schwieterman v. Schwieterman, 114 So.3d 984, 988 (Fla. 5th DCA 2012), and the distribution of assets, Winder v. Winder, 152 So.3d 836, 838 (Fla. 1st DCA 2014).

Here, there is no trial transcript in the record. ‘Without a record of the trial proceedings, the appellate court [cannot] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence .... ” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). Thus, for an appellate court to review the sufficiency of evidence at trial, the appellant must either include in the record a trial transcript or a proper substitute, such as a stipulated statement of facts. Id.; Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990). That was not done here.

Florida courts typically will not reverse a dissolution order based on the sufficiency of required factual findings when there is no transcript or proper substitute in the record. Klette v. Klette, 785 So.2d 562, 563 (Fla. 1st DCA 2001). However, if the trial court’s error is clear on the face of the order or judgment, the appellate court can reverse. Hindle v. Fuith, 33 So.3d 782, 785 (Fla. 5th DCA 2010); see Ferguson v. Ferguson, 54 So.3d 553, 556 (Fla. 3d DCA 2011) (holding former wife’s failure to include transcript of hearing did not preclude appellate review of order where reversible error existed on face of order); Casella, 569 So.2d at 849 (finding reversible error on face of amended judgment alone).

ALIMONY

Here, the trial court found that the major marital asset was Former Husband’s tax deferred retirement account, valued at $1.2 million. The final judgment awarded Former Wife fifty percent of the balance of Former Husband’s retirement account. Nonetheless, the final judgment provides that Former Wife “does not have an [sic] assets other than $11.00 in her checking account and her vehicle which has a lien against it.” The court noted that “the [Former Wife’s] income is $9.00 per hour full time based on her testimony. This equates to a gross monthly income of $1,560.00 per month.”

We agree with Former Husband that the trial court should have imputed to Former Wife’s gross monthly income the interest generated from her one-half share of his retirement account. Section 61.046(8), Florida Statutes (2015), defines “income” and includes retirement benefits, pensions, dividends, and interest. In considering an alimony award, a trial court must consider all sources of income available to either party. § 61.08(2)(i), Fla. Stat. (2015). This includes payments received from interest-generating retirement accounts. Adelberg v. Adelberg, 142 So.3d 895, 899 (Fla. 4th DCA 2014); Niederman v. Niederman, 60 So.3d 544, 547 (Fla. 4th DCA 2011).

Because the trial court found that Former Wife’s income was $1,560, based solely on her full-time job, it is apparent from the face of the final judgment that the court failed to impute interest from the one-half share of the retirement account that was awarded to her. See Niederman, 60 So.3d at 547 (holding that, under 26 U.S.C. § 72(t) (2015), income from retirement account can be imputed to spouse for determining alimony when principal of account will not be invaded); see also Adelberg, 142 So.3d at 899; Elliott v. Elliott, 867 So.2d 1198, 1199-1200 (Fla. 5th DCA 2004). Thus, we reverse the alimony award and remand for the trial court to consider interest from the retirement account when calculating Former Wife’s income.

ATTORNEY’S FEES

Former Husband correctly argues, and Former Wife concedes, that the trial court erred in its attorney’s fees award by failing to make the required findings. In addition to findings of the need for and ability to pay attorney’s fees, “[t]he trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors.” Giovanini v. Giovanini, 89 So.3d 280, 282 (Fla. 1st DCA 2012) (citing Davis v. Davis, 613 So.2d 147, 148 (Fla. 1st DCA 1993)). A dissolution order awarding attorney’s fees that “recites simply that the total amounts ‘are reasonable time spent and hourly rates,’ is insufficient under [Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985)].” Winder, 152 So.3d at 842 (quoting Norman v. Norman, 939 So.2d 240, 242 (Fla. 1st DCA 2006)).

Here, the trial court awarded $9,312.75 in attorney’s fees to Former Wife. It found that Former Wife demonstrated a need for attorney’s fees and that Former Husband had the ability to contribute to them. It provided in the final judgment that “the [Former Wife]’s request of $9,312.75 is reasonable given the nature and duration of the instant case. The hourly rates charged by all timekeepers is reasonable and the amount of hours billed is reasonable.” The trial court’s failure to set forth specific findings about the hourly rate and number of hours is error apparent from the face of the final judgment. See Esaw v. Esaw, 965 So.2d 1261, 1265 (Fla. 2d DCA 2007) (acknowledging that award of attorney’s fees without adequate findings justifying amount of award is reversible even when appellant provided inadequate record of trial court proceedings). Consequently, we must reverse the award of attorney’s fees and remand for the trial court to make specific findings about the hourly rate, number of hours billed, and any reduction or enhancement factors. However, we affirm the finding of Former Wife’s need for and Former Husband’s ability to pay attorney’s fees because, without a trial transcript, we cannot determine that this finding was error.

LIFE INSURANCE

Former Husband argues that the trial court erred by failing to make required findings before ordering him to maintain life insurance. When a trial court requires a party to maintain life insurance as part of a dissolution order, it must “make specific evidentiary findings regarding the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant the requirement for security of the obligation.” Foster v. Foster, 83 So.3d 747, 748 (Fla. 5th DCA 2011). A trial court’s failure to make these required findings is reversible error. Id. (citing Schoditsch v. Schoditsch, 888 So.2d 709 (Fla. 1st DCA 2004)). Thus, although there is no transcript in the record, we will reverse where the trial court fails to make factual findings in a final judgment regarding the requirement on a party to maintain life insurance. For example, in Packo v. Packo, 120 So.3d 232, 234 (Fla. 5th DCA 2013), this Court reversed a life insurance requirement because the final judgment did “not include the detailed findings needed to support its purpose,” and remanded for the trial court to make the necessary findings. See also Palmer v. Palmer, 198 So.3d 1035, 1036 (Fla. 5th DCA 2016) (determining that order requiring spouse to obtain life insurance policy must include findings as to cost of insurance and any special circumstances justifying need for policy); Velaga v. Gudapati, 148 So.3d 550, 551 (Fla. 2d DCA 2014) (holding that court’s order requiring party to maintain life insurance to secure alimony award must include findings on cost, whether ob-ligor can afford it, and special circumstances necessitating order).

Here, the final judgment states that Former Husband “shall maintain life insurance in the amount of $250,000.00 so long as he has either a child support or alimony obligation to the [Former Wife]. The [Former Husband] shall execute an absolute assignment of the policy to the [Former Wife] and designate her as the irrevocable beneficiary.” The trial court’s failure to include the required factual findings in the final judgment is an error apparent from the face of the final judgment. See Packo, 120 So.3d at 234. Thus, we reverse and remand for the trial court to make specific findings regarding the availability and cost of insurance, Former Husband’s ability to pay, and the special circumstances that warrant the requirement for security of the obligation. See Foster, 83 So.3d at 748; Packo, 120 So.3d at 234.

THE PARENTING PLAN

We agree with Former Husband’s argument that the trial court’s parenting plan fails to comply with statutory requirements because it does not make findings required by section 61.13(2)(b), Florida Statutes (2015). Section 61.13(2)(b) states that a parenting plan must, at a minimum:

1. Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child;
2. Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
3. Designate who will be responsible for:
a. Any and all forms of health care. If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child.
b. School-related matters, including the address to be used for school-boundary determination and registration.
c. Other activities; and
4. Describe in adequate detail the methods and technologies that the parents will use to communicate with the child.

A trial court’s failure to make these required factual findings is reversible error even where there is no transcript. Magdziak v. Sullivan, 185 So.3d 1292, 1293 (Fla. 5th DCA 2016) (reversing parenting plan despite having no transcript because plan set forth timesharing schedule in only general terms).

Here, the final judgment required Former Husband and Former Wife to exercise shared parenting of the child and “divide uncovered medical expenses in proportion to the child support guideline percentages.” It also provided that Former Wife would “have the majority of the responsibility with the parties’ remaining minor child” and devised the following parenting plan:

The [Former Husband] shall have liberal contact with the minor child upon providing 48 hours’ notice to the [Former Wife] of same. The parties shall exercise shared parental responsibility. The [Former Husband] shall have no less than 1/3 of the overnights with the minor child. As long as the [Former Wife] has not previously indicated to the [Former Husband] that the child had a conflict, the [Former Husband] shall be allowed to have two weekends per month and the balance of weekdays for a total of at least 10 calendar nights per month. Both parents are to be involved with assisting the child with his school work during the time that the parent is exercising time sharing.

Like the parenting plan in Magdziak, these findings “lack specificity.” See Magdziak, 185 So.3d at 1293 n.2. As a result, the trial court’s failure to include a more specific parenting plan that complies with section 61.13(2)(b) in the final judgment is an error apparent from the face of the final judgment. See id. at 1293. We reverse and remand for the trial court to make and include in its final judgment a legally sufficient parenting plan.

AFFIRMED in part; REVERSED in part; REMANDED.

COHEN, C.J., and TORPY, J., concur.

      . Because alimony needs to be recalculated, we note that it also appears that the trial court failed to reduce Former Husband’s income by the amount of taxes that he is required to pay.


author: SUAREZ, C.J.

text:
    EAGLE ARTS ACADEMY, INC., Appellant, v. TRI-CITY ELECTRIC CO., INC., Appellee.
    No. 3D16-928
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.

      Weiss, Handler & Cornwell, P.A. and William J. Cornwell and Seth A. Kolton (Boca Raton), for appellant.
    Elder & Lewis, P.A. and Kerry H. Lewis and David B. Williams, for appellee.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ,
   SUAREZ, C.J.

Eagle Arts Academy [“EAA”] appeals from a non-final order summarily denying its motion to dismiss the complaint against it by Tri-County Electric Company, Inc. We dismiss the appeal for lack of jurisdiction.

Although Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi) authorizes appeals of non-final orders that determine, as a matter of law, that a party is not entitled to sovereign immunity, the order on appeal makes no explicit or implicit finding as a matter of law that EAA is not entitled to sovereign immunity. Compare Hastings v. Demming, 694 So.2d 718 (Fla. 1997) (holding that a final order denying summary judgment on a claim of workers’ compensation immunity is not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party); Taival v. Barrett, 204 So.3d 486 (Fla. 5th DCA 2016) (“[A]n order that simply denies the defendant’s motion [for summary judgment], but does not determine as a matter of law that summary judgment is improper, is not ap-pealable.”). The order summarily denying the motion to dismiss and requiring the defendant EAA to answer is simply and correctly the trial court’s determination that based on the four corners of the Complaint the matter may move forward on the allegations. See Lewis v. Barnett Bank of S. Fla., N.A., 604 So.2d 937, 938 (Fla. 3d DCA 1992) (holding that on a motion to dismiss, the trial court is necessarily confined to the well-pled facts alleged in the four corners of the complaint is not authorized to consider any other facts); Barbado v. Green & Murphy, P.A., 758 So.2d 1173, 1174 (Fla. 4th DCA 2000) (holding a motion to dismiss tests the legal sufficiency of the complaint and a court may not go beyond the four corners of the complaint in considering the legal sufficiency of the allegations).

Dismissed.

      . In re Amendments to Florida Rule of Appellate Procedure 9.130, 151 So.3d 1217 (Fla. 2014).


author: PER CURIAM.

text:
    Edly F. CALIXTE and Marie J. Petit-Frere, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 3D15-2765
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.
    Philippe Symonovicz (Fort Lauderdale), for appellants.
    Choice Legal Group, P.A., and Wm. David Newman, Jr. (Fort Lauderdale), for appellee.

      Before SUAREZ, C.J., and ROTHENBERG and LOGUE, JJ.
   On Motion for Rehearing

PER CURIAM.

Upon consideration of the appellants’ motion for rehearing, we withdraw this court’s opinion issued November 20, 2016, and substitute the following opinion in its stead.

Edly Calixte and Marie J. Petit-Frere appeal a final judgment of mortgage foreclosure entered against them and in favor of Federal National Mortgage Association. We uphold the judgment in all respects except for one point. As the Bank commendably concedes, the trial court failed to determine whether Appellants were “adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument,” as required by section 673.3091(2), Florida Statutes (2015). Accordingly, we reverse the final judgment of mortgage foreclosure and remand for further proceedings, “at which the court must address the means by which the Bank must satisfy this post-proof condition.” Blitch v. Freedom Mortg. Corp., 185 So.3d 645, 646-47 (Fla. 2d DCA 2016) (“Because the court’s consideration of the issue of adequate protection is a condition of entering a judgment that reestablishes a lost note, its failure to provide adequate protection, or to make a finding that none is needed under the circumstances, requires reversal and remand for the court to consider the issue.”).

Reversed and remanded for further proceedings.


author: SCALES, J.

text:
    Todd ALEXANDER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D15-2314
    3D15-2140
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler and Jeffrey Paul DeSousa, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J. and LAGOA and SCALES, JJ.
   SCALES, J.

In this consolidated appeal, Appellant Todd Alexander challenges both (i) his conviction for animal cruelty, and (ii) the trial court’s revocation of his probation based on the animal cruelty conviction. Because the jury’s verdict is supported by competent, substantial evidence of when Alexander committed the crime, we affirm. Gonzalez v. State, 841 So.2d 650, 652 (Fla. 3d DCA 2003) (jury verdict supported by competent, substantial evidence must be sustained on appeal). We remand only to allow the trial court to enter a correct written order, consistent with its oral pronouncement, to reflect that the crime was not committed using a weapon.

Affirmed; remanded.


text:
    Steven VANDESANDE, Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D15-2038
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017
    Steven Vandesande, in proper person.
    Abigail Price-Williams, Miami-Dade County Attorney, and William X. Candela, Assistant County Attorney, for appellee.
    Before SUAREZ, C.J. and SALTER and SCALES, JJ.
   PER CURIAM.

We affirm the trial court’s entry of summary judgment on Count I of Appellant Steven Vandesande’s Third Amended Complaint. Peeples v. Peeples, 871 So.2d 945 (Fla. 1st DCA 2004) (barring former husband’s supplemental petition on the basis of res judicata).

We also affirm the trial court’s directed verdict on the remaining counts of Vande-sande’s Third Amended Complaint. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding that “[wjithout a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”).

Affirmed.


text:
    PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. EDUARDO J. GARRIDO D.C. P.A., etc., Appellee.
    No. 3D15-1067
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.

      Kubieki Draper, P.A., and Betsy E. Gallagher and Michael C. Clarke (Tampa), for appellant.
    Christian Carrazana, P.A., and Christian Carrazana, for appellee.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ,
   SCALES, J.

Appellant, defendant below, Progressive American Insurance Company (“Progressive”), appeals a final summary judgment of the Miami-Dade County Court that both (i) declared a portion of Florida’s PIP statute unconstitutional as applied to chiropractors; and (ii) determined that, in the absence of an “emergency medical condition” diagnosis, Florida’s PIP statute allows an insured to recover up to $10,000 in PIP benefits. The county court certified the constitutional issue to us as a question of great public importance. We accepted jurisdiction, and we reverse the county court’s final summary judgment.

I. Facts

In February of 2013, Progressive’s insured, Alejandro Godoy, was involved in a car accident in Miami. Godoy suffered personal injuries and began treatment with chiropractor Eduardo Garrido, the Appel-lee and plaintiff below. Godoy assigned to Garrido his PIP benefits under Godoy’s Progressive policy, and Garrido submitted to Progressive invoices totaling $6,075.12 for his treatment of Godoy.

Progressive paid Garrido $2,500 in PIP benefits, but declined to pay Garrido any further PIP benefits because there had been no determination made by an authorized physician under section 627.736(l)(a)3. of the Florida Statutes that Godoy suffered an emergency medical condition (“EMC”). Progressive based its refusal to pay in excess of $2,500 in benefits on section 627.736(l)(a)4., which limits PIP benefits to $2,500 “if a provider ... determines that the injured person did not have an emergency medical condition.” Progressive reasoned that, because no authorized physician had diagnosed Godoy with an EMC, its PIP liability was limited to $2,500.

In response to Progressive’s refusal to pay Garrido more than $2,500, Garrido filed the instant declaratory judgment action in Miami-Dade County Court. Garri-do’s complaint contained three counts. In Count I, Garrido sought a declaration that the full $10,000 PIP benefit applied to the claim at issue, despite the absence of a determination by an authorized medical provider that Godoy suffered an EMC.

In Counts II and III of his complaint, Garrido alleged that the exclusion of chiropractors from the list of professionals, scheduled in section 627.736(l)(a)3., that are authorized to diagnose a patient with an EMC is unconstitutional as applied to chiropractors on both equal protection and due process grounds. After the inception of his lawsuit, Garrido filed an affidavit in support of his motion for summary judgment in which he purported to have diagnosed Godoy with an EMC, despite not being authorized to provide such diagnosis under section 627.736(l)(a)3.

The trial court entered final summary judgment for Garrido, concluding that the statute was unconstitutional as applied to chiropractors on both equal protection and due process grounds. The trial court also determined that Garrido’s diagnosis of Go-doy with an EMC was “legally sufficient” to trigger the availability of Progressive’s PIP policy limit of $10,000, and certified to us the following question of great public importance:

IS THE OMISSION OF CHIROPRACTORS FROM THE LIST OF HEALTH CARE PROFESSIONALS AUTHORIZED TO DIAGNOSE AN EMERGENCY MEDICAL CONDITION UNDER § 627.736(l)(a)(3), FLA. STAT. (2013) [stet] UNCONSTITUTIONAL AS APPLIED TO CHIROPRACTORS ON THE GROUNDS OF EQUAL PROTECTION AND DUE PROCESS UNDER THE FLORIDA CONSTITUTION?

A separate panel of this Court accepted jurisdiction. We answer the question in the negative and reverse the trial court’s summary final judgment for Garrido.

II. Analysis

A. Relevant Statutory Backdrop

For decades, in addition to providing death benefits under section 627.736(l)(c), all PIP insurance policies written in Florida have been required to provide up to $10,000 in benefits for an insured’s covered medical expenses under section 627.736(l)(a) and for an insured’s loss of income and earning capacity under section 627.736(l)(b).

In 2012, the Florida Legislature enacted Laws of Florida 2012-197 (the “2012 PIP Act”) which, among other things, amended the^ PIP statute’s medical benefits provisions to limit the availability of the full $10,000 in PIP medical benefits to only those injured persons diagnosed with an EMC. The Legislature accomplished this change by adding two subsections to section 627.736(l)(a) that are relevant to this case: (i) section 627.736(l)(a)3. specifically identifies which medical professionals can make an EMC diagnosis so as to trigger the $10,000 benefit availability; and (ii) section 627,736(l)(a)4. limits available PIP medical benefits to $2,500 if a medical provider determines that the injured person does not have an EMC. 2012 PIP Act; § 10.

Section 627.736(l)(a)3. provides that up to $10,000 in PIP medical benefits are available if the injured person is diagnosed with an EMC by one of the following professionals: (i) a physician licensed under chapter 458 (medical doctor) or chapter 459 (osteopathic physician), (ii) a dentist licensed under chapter 466, (iii) a physician assistant licensed under chapter 458 or 459, or (iv) an advanced registered nurse licensed under chapter 464.

Section 627.736(l)(a)4. limits PIP medical benefits to $2,500 if any medical provider (including chiropractic physicians licensed under chapter 460) eligible to receive PIP reimbursement benefits determines that an injured person does not have an EMC. The statute, however, is silent as to what PIP benefits are available in the event of no EMC diagnosis whatsoever.

B. The Trial Court’s Order

Under this statutory scheme a chiropractor is authorized to make a no-EMC diagnosis, but is not authorized to make a determination that an injured person has an EMC. Determining as a matter of law that the statutory scheme treats chiropractors differently from what it characterized as similarly situated persons—i.e., licensed medical providers who are authorized to provide EMC diagnoses—the trial court concluded that this distinction violates chiropractors’ equal protection rights because there exists no rational basis for the distinction. Underpinning the trial court’s conclusion is its determination that the legitimate governmental interest advanced by the statute “is to provide greater coverage where the injured person had an EMC.” The trial court also summarily concluded that the statutory scheme violates chiropractors’ due process rights because the statute lacks a rational basis under an equal protection analysis.

As a matter of statutory construction, the trial court also determined that, because no medical provider issued either an EMC or no-EMC diagnosis to Godoy, section 627.736(l)(a) requires Progressive to make available the full $10,000 in PIP medical benefits.

C. The Constitutional Issue—The Certified Question

1. The Rational Basis Test in an Equal Protection Challenge

We note that the trial court employed the appropriate test to determine the statute’s constitutionality. A court must analyze an equal protection challenge that does not involve a fundamental right or suspect classification under the rational basis test. Estate of McCall v. U.S., 134 So.3d 894, 901 (Fla. 2014). “To satisfy the rational basis test, a statute must bear a rational and reasonable relationship to a legitimate state objective, and cannot be arbitrarily or capriciously imposed.” Id.

The Legislature has the power to establish classifications, to make distine-tions among persons or groups, without running afoul of equal protection law. Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996-97 (Fla. 2003) (upholding under rational basis test distinction between attorney and non-attorney title insurance agents); State Dep’t of Ins. v. Keys Title & Abstract Co., 741 So.2d 599, 601-02 (Fla. 1st DCA 1999). Courts “are obligated to accord legislative acts a presumption of constitutionality and to construe challenged legislation to effect a constitutional outcome whenever possible.” Fla. Dep’t of Revenue v. Howard, 916 So.2d 640, 642 (Fla. 2005). There is a strong presumption of validity if there is a rational relationship between the disparity of treatment of those persons or groups and a legitimate governmental objective. City of Fort Lauderdale v. Gonzalez, 134 So.3d 1119, 1121 (Fla. 4th DCA 2014) citing Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Some measure of disparate treatment or inequality is constitutionally tolerable. Duncan v. Moore, 754 So.2d 708, 712 (Fla. 2000); Acton v. Ft. Lauderdale Hosp., 440 So.2d 1282, 1284 (Fla. 1983). The burden on the plaintiff, therefore, is to demonstrate that there is no rational basis for the alleged disparity by showing that the statute intentionally and improperly treats him, her or it in a different manner from similarly situated persons or groups. Miller v. State, 971 So.2d 951, 952 (Fla. 5th DCA 2007).

Courts locate their rational basis test analysis “in a light deferential to Legislative action.” Warren, 899 So.2d at 1096. When applying the rational basis test, courts “undertake only a limited review that is highly deferential to the legislature’s choice of ends and means.” Silvio Membreno & Fla. Ass’n of Vendors, Inc. v. City of Hialeah, 188 So.3d 13, 22 (Fla. 3d DCA 2016). The statute’s challenger must “prove that there is no conceivable factual predicate which would rationally support the law.” Id. at 25 (internal quotations and citations omitted; emphasis in original). Courts are required to give great deference to legislative policy choices, and it constitutes reversible error for a trial court to subject legislative fact-finding to courtroom fact-finding standards. Id. at 26-27. In this vein, and recognizing the hallmark constitutional principle of separation of powers, even laws that a judge perceives “as unwise or unfair” pass constitutional muster under the rational basis test. Id. at 29.

2. Application of the Rational Basis Test to the Subject Legislation

To prevail, Garrido must show that “there is no conceivable factual predicate which would rationally support the law.” Id. at 25 (internal quotations and citation omitted; emphasis in original). In other words, Garrido has the burden to establish that there is no reasonable relationship between the subject statute’s treatment of chiropractors and a valid governmental objective.

The record reflects that the objective of section 10 of the 2012 PIP Act is to reduce fraud in order to lower the cost of insurance premiums. To achieve this objective, the legislation limited the availability of the full $10,000 medical benefit to those injured persons who suffered an EMC as the result of an automobile accident.

Further to achieve this objective, the Legislature expressly: (i) defined what medical conditions constitute an “EMC” (section 627.732(16)); see footnote 2, supra ), (ii) limited which medical professionals were authorized to diagnose an injured insured with an EMC (section 627.736(l)(a)3.), and (iii) restricted medical benefits to $2,500 for those persons who were affirmatively diagnosed as not having an EMC, with such no-EMC diagnosis being permitted by a broader range of medical professionals than those authorized to provide an affirmative EMC diagnosis (section 627.736(l)(a)4.).

These provisions all bear a reasonable relationship to the statute’s objective. It is entirely reasonable that fraud will be reduced by limiting the full $10,000 PIP benefit to only those claimants who—as diagnosed by specifically identified medical providers—have suffered an EMC. Under constitutional equal protection analysis, our inquiry is not whether we believe chiropractors are qualified to provide an EMC diagnosis and, therefore, should have been included in section 627.736(l)(a)3.’s statutory schedule. Indeed, it is certainly arguable that chiropractors are as qualified to provide an EMC diagnosis as some of the other professionals authorized by the statute to provide such a diagnosis. But the rational basis test does not allow judiciaj fact-finding to replace legislative fact-finding. Silvio Membreno, 188 So.3d at 26. We must presume that the Legislature conducted its own evaluation of the respective professionals’ qualifications, especially considering that throughout section 627.736(l)(a), each specific profession is expressly referenced by the chapter of the Florida Statutes that regulates the qualifications of the profession. When no suspect class or fundamental right is implicated, our inquiry is limited to whether the law bears a reasonable relationship to a legitimate governmental objective. McCall, 134 So.3d at 901. Plainly, the reduction of fraud in order to lower the cost of insurance premiums is a valid governmental objective. See Warren.

Within this rational basis context, we also conclude that chiropractors are not similarly situated to other medical providers entitled to make an EMC diagnosis, as set forth in section 627.736(l)(a)3., by virtue of their respective training, licensing and scope of professional practice. Strohm v. Hertz Corp./Hertz Claim Mgmt., 685 So.2d 37, 40 (Fla. 1st DCA 1996). The Court in Strohm relied, in part, on the discussion in Clair v. Glades County Board of Commissioners, 649 So.2d 224 (Fla. 1995), which examined the difference in the scope of practice between chiropractors and other medical providers. Strohm, 685 So.2d at 40. Thus, section 627.736(1)(a)3. makes the durable legislative distinction between chiropractors and other, identified medical providers that is relevant to the statute’s purposes. See City of Miami v. Haigley, 143 So.3d 1025, 1034 (Fla. 3d DCA 2014).

The requisite reasonable relationship exists between the Legislature’s objectives and its exclusion of chiropractors from the list of medical providers authorized to provide an affirmative EMC diagnosis. We therefore answer the certified question in the negative.

D. The Statutory Issue—the Benefit Limit Absent an EMC or No-EMC Diagnosis

Because it is undisputed that Gar-rido is not a medical professional authorized to provide an EMC and, because we have concluded that section 627.736 (l)(a)3.’s requirements regarding an EMC diagnosis are not unconstitutional as applied to chiropractors, it follows that Garri-do’s purported EMC diagnosis of Godoy— provided by Garrido in an affidavit filed in the trial court—is insufficient to trigger the availability of $10,000 in PIP benefits. The trial court determined, however, as a matter of statutory construction, that even if Garrido could not diagnose Godoy with an EMC, Progressive nevertheless was liable for the full $10,000 in PIP benefits.

The trial court reasoned that the statutory scheme provided no specific guidance for when, as here, an injured person received neither an EMC diagnosis nor a no~ EMC diagnosis; therefore, the trial court reasoned that, pursuant to the general prefatory language of section 627.736(1), Progressive was required to make available the full $10,000 medical benefit.

As always, we are guided by the polestar of legislative intent when called upon to construe a statute. Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla. 2006). In the instant case, the trial court’s interpretation of the statute would render section 627.736(l)(a)3.’s requirement of an EMC diagnosis meaningless if we were to hold that the $10,000 limit was available to injured claimants without any EMC diagnosis. Section 627.736(l)(a)3. expressly requires such a diagnosis to trigger the full $10,000 availability. We construe related statutory provisions in pari materia, and do not construe statutes so as to render related provisions meaningless. Id. at 595. Therefore, we hold that when no EMC diagnosis has been provided by an authorized medical provider as required by section 627.736(l)(a)3., the available PIP medical benefits are limited to $2,500.

We note that other appellate courts that have faced this issue to date have reached the same conclusion. Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583 (11th Cir. 2015); Med. Ctr. of Palm Beaches v. USAA Cas. Ins. Co., 202 So.3d 88 (Fla. 4th DCA 2016).

III. Conclusion

For the reasons stated above, we reverse the trial court’s grant of summary judgment, and conclude that section 627.736(l)(a)3. of the Florida Statutes violates neither the equal protection clause nor the due process clause; and we further conclude that absent an affirmative EMC diagnosis, the available medical benefit limit for PIP insurance is $2,500. We remand for proceedings consistent with this opinion.

Certified question answered in the negative. Reversed and remanded.

      . Fla. R. App. P. 9.160(e)(2).

      . An emergency medical condition is defined as “a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: (a) Serious jeopardy to patient health, (b) Serious impairment to bodily functions. (c) Serious dysfunction of any bodily organ or part.” § 627.732(16), Fla. Stat. (2013).

      . In all respects, the trial court’s grant of summary judgment is based on pure questions of law. Therefore, we review the judgment de novo. Scott v. Williams, 107 So.3d 379, 384 (Fla. 2013); Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001).

      . As the trial court notes in its order, a separate due process analysis is unnecessary because the equal protection and substantive due process analyses mirror each other. Warren v. State Farm Mut. Auto. Ins. Co., 899 So.2d 1090, 1096 (Fla. 2005).

      . The ordinance at issue in Silvio Membreno was challenged under substantive due process grounds. The same rational basis test applies to an equal protection challenge. Silvio Mem-breno, 188 So.3d at 19-20. In Silvio Membre-no, Judge Logue has provided both an academic synthesis of and a practical approach to Florida's rational basis test. We note that, when the trial court entered its order on appeal, it did not have the benefit of Silvio Membreno's incisive rational basis practicum.

      . We note that during the proceedings below, pursuant to rule 1.071 of the Florida Rules of Civil Procedure and section 86.091 of the Florida Statutes, Garrido gave the required notice to the Florida Attorney General of the constitutional question in this case. The Attorney General did not join the case as a party or otherwise participate in the proceedings. Ordinarily, the Court would have the benefit of the Attorney General's defense of the constitutionality of a Florida statute.

      . "REQUIRED BENEFITS. Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured ... to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease .... ” § 627.736(1), Fla. Stat. (2013).


author: FERNANDEZ, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Jose R. FERNANDEZ and Sandra Fernandez, Appellees.
    No. 3D16-1441
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.
    Green & Ackerman, P.A. (Boca Raton); Russo Appellate Firm, P.A., Elizabeth K. Russo and Kevin D. Franz, for appellant.
    Alvarez, Carbonell, Feltman & DaSilva, PL and Paul B. Feltman, for appellees.
    Before SUAREZ, C.J., and EMAS, and FERNANDEZ, JJ.
   FERNANDEZ, J.

Appellant State Farm appeals the trial court’s non-final order compelling appraisal. We reverse because appellees Jose R. Fernandez and Sandra Fernandez failed to comply with their post-loss obligations.

On October 28, 2005, the insureds, Jose and Sandra Fernandez, made an insurance claim with State Farm for damage to then-house that occurred on October 24, 2005, as a result of Hurricane Wilma. The insureds claimed damage to them outdoor terrace lights, three outdoor ceiling fans, gutters, a crack on the inside of then-swimming pool wall, some missing pool tiles, and water on the pool bathroom floor.

State Farm investigated the claim in November 2005 and sent the insureds a letter advising them that although damage to the gutters and ceiling fans were within the policy’s coverage, the repair costs were less than the $4,870 policy deductible. The letter advised them that all other claimed damages were not covered under the policy, thus, no payment was issued to the insureds. The insureds did not contact State Farm to advise of any further damage.

In April 2010, the insureds’ public adjuster sent State Farm a demand for appraisal on their behalf, claiming that Hurricane Wilma caused $142,733.81 in damages, representing the cost to repair or fully replace the roof, outdoor ceiling fans, lights and ceramic tiles, the pool bathroom, the swimming pool and an exterior wood fence and ornamental iron fence. State Farm wrote to the insureds on April 24, 2010 requesting “any and all documentation relating to repairs made to your property since the date of loss which will serve to validate the date of loss, the cause of loss, and the scope of your claimed damages/repairs.” The letter also reminded them of their obligations under the policy and their duty after loss to file a Sworn Proof of Loss. State Farm then sent the insureds another letter on April 29, 2010, reserving rights as to coverage because of possible violations of the insureds’ post-loss obligations under the policy.

Approximately one week later, the insureds submitted a one-page Sworn Proof of Loss, claiming Hurricane Wilma caused $142,733.81 in dwelling damages. They did not attach any documentation supporting their claims. State Farm acknowledged in writing receipt of the Proof of Loss “in form only” and stated it was “unable to determine the validity of the claimed amount as noted on your Sworn Statement in Proof of Loss.”

On July 7, 2010, State Farm inspected the insureds’ property. State Farm then requested that they submit to an examination under oath. After State Farm had to reschedule the examination twice for the insureds’ failure to appear, the insureds eventually appeared at their examination under oath on February 1, 2011, but did not provide any documentation for their claims. State Farm requested documentation for them supplemental claim two more times, but the insureds never replied. On June 8, 2011, State Farm denied coverage.

On November 27, 2013, the insureds sued State Farm for breach of the insurance contract. They later moved to compel appraisal and abate the action. State Farm denied that the insureds were entitled to an appraisal because they failed to comply with all conditions of the policy regarding the insureds’ duties after loss. After the trial court held an evidentiary hearing on their motion to compel, the trial court granted the insureds’ motion.

We agree with State Farm that the trial court erred in compelling appraisal because the insureds failed to comply with all of their post-loss obligations. It is well-settled in Florida that all post-loss obligations must be satisfied before a trial court can exercise its discretion to compel appraisal. State Farm Florida Ins. Co. v. Hernandez, 172 So.3d 473 (Fla. 3d DCA 2015); State Farm Florida Ins. Co. v. Cardelles, 159 So.3d 239 (Fla. 3d DCA 2015); United States Fidelity & Guaranty Co. v. Romay, 744 So.2d 467 (Fla. 3d DCA 1999). The record before us reflects that the insureds failed to comply with all of their post-loss obligations by failing to: give immediate notice of the alleged additional damage to their property; protect their property from further damage; keep an accurate record of their expenditures; provide State Farm with any of the requested records and documents to support their supplemental claim; and submit a sworn proof of loss within 60 days after the loss, according to the terms of the insurance policy in question.

Accordingly, we reverse the trial court’s order compelling appraisal. We decline to address State Farm’s contention that the policy was void due to alleged material misrepresentations made by the insureds.

Reversed.


author: LOGUE, J.

text:
    ALL COUNTIES SURPLUS LLC, Tatiana Escalada, and Carlos Mesber, Appellants, v. FLAMINGO SOUTH BEACH I CONDOMINIUM ASSOCIATION, INC., Marysol Tobon and Mar Y Sol International Realty, LLC, Appellees.
    No. 3D16-1219
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017
    Michael Farrar, for appellants.
    Garcia-Menocal Irías & Pastori LLP, and Jorge Garcia-Menocal; The Bravo Law Firm, PLLC, and Jason Bravo, for appellees.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

In this post-foreclosure dispute, Tatiana Escalada and Carlos Mesber, the original owners of real property that was the subject of a foreclosure action, seek review of the trial court’s order disbursing surplus funds from the foreclosure sale to Marysol Tobon and Mar Y Sol International Realty, LLC, the third party purchasers of the property. The third party purchasers, in turn, have cross-appealed the trial court’s denial of their objections to the foreclosure sale. We reverse the trial court’s order as to the disbursement of the surplus funds, but affirm as to the denial of the objections to the sale.

A final judgment of foreclosure was entered and the property was ultimately sold to the third party purchasers. The foreclosure sale price of the property exceeded the amount of the final judgment of foreclosure. The original owners filed motions to have the surplus funds transferred to them.

Meanwhile, the third party purchasers filed an objection to their own purchase of the property, alleging irregularities in the sale. They alleged their bid on the property was a mistake because they were unaware of a superior lien on the property. They also alleged that they had consulted with an attorney who assured them the property was a good investment, but they later discovered that the attorney represented the original owners of the property.

Following an evidentiary hearing where testimony was heard from one of the third party purchasers, Ms. Tobon, and the attorney she purportedly consulted, the trial court denied the objection to the sale. The trial court also specifically found that “a return of monies in excess of the plaintiffs judgment to the original owners would be inequitable and unjust” and ordered that “[a]ny funds in excess of the Association’s judgment plus accrued maintenance since the judgment are to be returned to [the third party purchasers].” These findings and the consequent return of surplus funds to the third party purchasers were erroneous.

The original owners correctly argue that the trial court improperly returned the funds exceeding the amount of the foreclosure judgment to the third party purchasers. The third party purchasers commendably and properly confessed error on this point. “[Distribution of surplus foreclosure proceeds is governed by a plain and unambiguous statutory procedure which clearly provides that the owner of record is entitled to the surplus proceeds.” Pineda v. Wells Fargo Bank, N.A., 143 So.3d 1008, 1011 (Fla. 3d DCA 2014); see § 45.032(2), Fla. Stat. (2012) (“There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim.”). Furthermore, “[n]either the statutes nor the case law governing distribution of surplus foreclosure sale proceeds provides a mechanism authorizing a third-party purchaser to obtain the surplus.” Pineda, 143 So.3d at 1011.

Accordingly, we reverse the order on appeal to the extent it denied the motion for surplus funds filed by All Counties Surplus LLC and awarded any surplus funds to the third party purchasers, and remand with instructions that the improperly disbursed surplus funds be deposited back into the court registry, that the court consider any appropriate motions for surplus funds, and' for further proceedings consistent with this opinion and section 45.032, Florida Statutes.

On cross-appeal, the third party purchasers seek review of the portion of the trial court’s order denying their objections to the sale. The trial court treated the objection as a motion to vacate the sale and conducted an evidentiary hearing. After the hearing, the trial court entered findings that the third party purchasers had never hired the attorney at issue; Ms. Tobon, one of the third party purchasers, who was a real estate broker herself, had not conducted any bona fide investigation of the property; and the third party purchasers had bid on the property over thirty times during the online auction. Based on these findings, the trial court denied the objection.

“Trial courts’ judgments pertaining to set asides of judicial foreclosure sales are now, as they always have been, subject to review by way of an abuse of discretion standard.” Arsali v. Chase Home Fin. LLC, 121 So.3d 511, 519 (Fla. 2013). There is no transcript of the evidentiary hearing in the record. As such, “we are unable to evaluate the evidence and testimony presented at trial to ascertain whether or not the trial court’s findings and reasoning ... were well-founded.” Shojaie v. Gables Court Prof'l Ctr., 974 So.2d 1140, 1142 (Fla. 3d DCA 2008); see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). For these reasons, we affirm the trial court’s denial of the objection to the sale.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

      , The statute specifies the circumstances under which the presumption is rebuttable.


text:
    Royce REED, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1358
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J. and LAGOA and SCALES, JJ.
   PER CURIAM.

Affirmed. Wilson v. State, 880 So.2d 1287 (Fla. 3d DCA 2004).


author: EMAS, J.

text:
    Jorge GUZMAN, Petitioner, v. Daniel JUNIOR, etc., et al., Respondents.
    No. 3D17-313
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for respondent.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Petitioner Jorge Guzman has filed a petition seeking issuance of a writ of habeas corpus, to remedy his alleged illegal incarceration. Guzman asserts that the trial court ordered him to be held without bond, without conducting a proper hearing, and without making the necessary findings required under sections 907.041 and 903.046, Florida Statutes (2017), and Florida Rules of Criminal Procedure 3.131 and 3.132.

The material facts are not in dispute: While out of custody awaiting trial on his case, Guzman failed to appear in court on January 18, 2017. An alias capias warrant was issued for his failure to appear, and he was subsequently arrested on that warrant on February 9, 2017. He remained in custody and, on February 10, was taken before the trial judge. At that hearing, Guzman’s counsel requested that the court set a bond in the case, and advised the court that this was the first time Guzman had failed to appear in court. The trial court denied the request for bond, ordered that Guzman be held without bond, and set the case for trial. The trial court conducted no further hearing and made no findings in support of its denial of Guzman’s request for bond.

This petition followed and, commendably, the State has conceded error in this regard. Florida law mandates that, before a court may order a defendant held without bond (i.e., pretrial detention) under these circumstances, the trial court must find

a substantial probability, based upon a defendant’s past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that ...
The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.

§ 907.041(4)(c)7., Fla. Stat. (2017). See also Art. I, § 14, Fla. Const.; Fla. R. Crim. P. 3.131(a); State v. Blair, 39 So.3d 1190 (Fla. 2010); Mendoza v. Cross, 143 So.3d 1155 (Fla. 3d DCA 2014); Ginsberg v. Ryan, 60 So.3d 475 (Fla. 3d DCA 2011).

The trial court in the instant case failed to conduct a sufficient hearing and failed to make the requisite findings that Guzman willfully violated a condition of his pretrial release and that no condition of release could reasonably protect the community from risk of physical harm to persons or assure Guzman’s presence at trial. Further, the State had not filed any motion for pretrial detention pursuant to rule 3.132.

We therefore grant the petition and quash the order below, but withhold formal issuance of the writ. Consistent with this opinion, the trial court shall immediately conduct a hearing to consider Guzman’s jnotion for bond or other conditions of pretrial release, make the necessary findings, and issue an order as may be appropriate. This opinion shall become effective immediately, notwithstanding the filing of any motion for rehearing.

      . It is unclear whether Guzman’s initial pretrial release was on monetary (i.e,, bond) or non-monetary (e.g., release on recognizance) conditions. However, it is clear that his pretrial release was revoked when he failed to appear in court on January 18, 2017.


author: LEWIS, J.

text:
    Marcus GOGGINS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1216
    District Court of Appeal of Florida, First District.

      Opinion filed February 16, 2017

      Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Appellant, Marcus Goggins, appeals his convictions and sentences for use of another person’s identification without consent and grand theft and raises three issues, only one of which merits discussion and reversal. Appellant contends that the trial court erred in admitting collateral act evidence where the evidence showed only his propensity to commit bad acts. We agree and, therefore, reverse Appellant’s convictions and sentences and remand.

The charges against Appellant in this case were filed after someone opened a cell phone account in the name of a woman living in West Virginia without the woman’s consent and four cell phones associated with the account were sent to Appellant’s address. Before trial, the State filed a notice of intent to offer evidence of other crimes, wrongs, or acts, including the fact that prior to the incident dates charged in this case, Appellant was found to be in possession of personal identification information of a woman who lived in North Dakota along with a credit card and checks containing her name. The address listed on the checks and other items containing the woman’s name was Appellant’s address. The State also sought to admit evidence showing that a notebook was found in a storage unit that had been rented by Appellant before being auctioned for failure to pay. The notebook contained personal identification information belonging to other individuals. There was also mail containing Appellant’s address, though none of it was addressed to Appellant. The mail, some of which was opened, contained credit cards in the names of other individuals. Appellant filed a motion in limine to preclude the State from offering this evidence.

During the hearing on Appellant’s motion, defense counsel argued in part, “I feel like these are ... just attempts to show the propensity, which is not admissible. ... I feel like the case that’s in front of the Court currently, is not the strongest ... and I feel by adding this evidence, the State is trying to make it a stronger case.” The prosecutor argued:

[Appellant], I believe will, or if he does, try to make the argument that this was somehow a mistake by Verizon or some other entity, the shipping company, or what-have-you; Whatever it was it was a mistake. I’m not involved. I didn’t do it. It was a mistake that these things were sent to my address, then this evidence becomes very relevant to show the absence of a mistake. And that’s why we’re asking to bring it in, that the—his possession of all of these other identities and information, is probative to show that it’s not a mistake, and that’s why Williams Rule evidence is allowed, and should be allowed in this case.

After defense counsel argued that the collateral act evidence could become relevant halfway through the trial, at which point the trial court could say “Okay, State, door’s been opened,” he contended that “without that argument being made or any evidence being introduced to mistake ... I just don’t see it being required for them to establish their burden of the elements charged.” The trial court denied Appellant’s motion and found the collateral act evidence relevant and admissible.

During Appellant’s trial, the prosecutor argued in part during opening statements, “I suspect that they will say you can’t prove [Appellant] is the one that ordered those phones and I will say to that you are correct, we cannot prove [Appellant] is the one who ordered the phones.” The prosecutor contended, however, that “based on all the evidence and everything that you’re going to hear today and all of this other activity that involves his address and the fact that he’s the only one living at that address, there should be no doubt, when you hear all the evidence, that he was involved .... ” Defense counsel argued in part, “Somebody ordered some phones using Carrie Bates’ personal information. Those phones ended up at a residence that [Appellant] was staying at. That’s it. ... That’s all the evidence is going to show you.”

The State first called Carrie Bates, who testified that a Verizon cell phone account was opened in her name without her authorization and that phones had been delivered to 562 Northwest 50th Boulevard in Gainesville. A detective testified that Appellant told him that he lived at that address. A third witness testified that she had visited Appellant’s address on two occasions, that he was the only person there during those times, and that the residence had one bed.

Thereafter, the trial court instructed the jury that the evidence it was about to receive concerned “other crimes, wrongs, or acts allegedly committed by the defendant” and should be considered for the “limited purpose of proving the absence of mistake or accident.” The State then called three witnesses—the former manager of the storage facility where Appellant had rented a storage unit, the individual who purchased the contents of Appellant’s storage unit after his items were auctioned for failure to pay, and a detective who testified about the notebook discovered in the storage unit and other items found in Appellant’s possession.

The jury found Appellant guilty as charged on both counts. The trial court adjudicated Appellant guilty and sentenced him to five years’ imprisonment on both counts with the sentences to run concurrently. This appeal followed.

Section 90.404(2)(a), Florida Statutes (2014), provides that “[s]imilar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Similar fact evidence is “inadmissible when the evidence is relevant solely to prove bad character or propensity.” Id. Whether a relevant material fact is in issue in a case is not necessarily established by a defendant’s plea of not guilty, which denies each essential element of the charged offense, but must be determined from the particular facts and circumstances involved in each case, i.e., “has the defendant put such fact in issue.” Thomas v. State, 599 So.2d 158, 163 (Fla. 1st DCA 1992). “To open the door to evidence of prior bad acts, the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled.” Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997). A trial court’s decision to admit collateral act evidence is reviewed for an abuse of discretion. Easterly v. State, 22 So.3d 807, 814 (Fla. 1st DCA 2009). The erroneous admission of collateral act evidence is presumptively harmful and may be found harmless only if the State establishes that there is no reasonable possibility that the error contributed to the verdict. Thomas, 599 So.2d at 163.

We agree with Appellant’s argument on appeal that the trial court erred in admitting the collateral act evidence. We find it telling that the State argued that the evidence would become “very relevant to show the absence of a mistake” if the defense tried to make the argument that “this was somehow a mistake by Verizon or some other entity, the shipping company.” The defense made no such argument at trial. Instead, defense counsel argued that someone else had committed the offenses. Contrary to the State’s argument on appeal, defense counsel’s argument during opening statements did not open the door to the admission of the evidence.

The State alternatively argues that if defense counsel’s opening statements did not open the door to the evidence, the evidence was nonetheless admissible because the very nature and facts of the case raised an issue as to Appellant’s involvement in the offenses. However, because there was no material fact in dispute other than whether Appellant committed the crimes at issue, the only thing the collateral act evidence showed was Appellant’s propensity to commit bad acts. There is little doubt that learning of Appellant’s other activities created the impression that Appellant regularly engages in identity theft and certainly could have caused the jury to find him guilty notwithstanding the State’s lack of evidence as to the two charged crimes.

In Jackson v. State, 140 So.3d 1067, 1069 (Fla. 1st DCA 2014), a case the State argues is distinguishable from this case, the appellant appealed his judgment and sentence imposed after he was found guilty of burglary of a dwelling and battery and argued that the trial court erred in admitting evidence of two previous incidents involving the victim. Id. During the appellant’s trial, the appellant’s ex-girlfriend claimed that the appellant broke into her apartment and attacked her with a knife. Id. The State’s collateral act evidence, which the trial court ruled was admissible, consisted of testimony about two prior incidents in which the appellant allegedly attacked the victim. Id. at 1070. In reversing and deeming the admission of the collateral act evidence improper, we reasoned that although intent was an element of the crimes for which the appellant was found guilty, intent was not a material issue in dispute. Id. Moreover, the appellant did not claim self-defense, accident, or mistake with respect to the alleged battery but instead simply claimed that he was not at the apartment on the night of the incident, and his counsel argued that the victim’s allegations were not credible. Id. As to the battery charge, we explained that the probative value of the prior incidents seemed to be premised on the logic that because the appellant attacked the victim in the past, he had the requisite intent to commit the battery at issue. Id. at 1072. We set forth, however, that that was “precisely the type of reasoning against which the Williams rule is intended to protect.” Id.

The State’s argument that Jackson is distinguishable is meritless. Although the facts in this case are different, this case is similar to Jackson in that Appellant, like the appellant there, did not claim accident or mistake. Moreover, just as in Jackson where the evidence at issue showed the appellant’s propensity to commit bad acts, the collateral act evidence in this case served the same purpose. As such, the trial court abused its discretion in admitting the evidence. See Moss v. State, 169 So.3d 223, 229 (Fla. 1st DCA 2015) (“M.A.’s testimony establishes only that [the appellant] has a propensity to touch women’s bodies offensively, without their consent. This type of propensity evidence is inadmissible and presumptively harmful.”); Harden v. State, 87 So.3d 1243, 1246-47 (Fla. 4th DCA 2012) (holding that the evidence of a prior incident of domestic violence against the victim which was offered to show motive and intent was inadmissible because motive and intent were not at issue and “the earlier incident of domestic violence did nothing more than demonstrate appellant’s propensity for violence against his girlfriend”); Pratt v. State, 1 So.3d 1169, 1170-71 (Fla. 4th DCA 2009) (reversing the admission of collateral crime evidence that the appellant beat his wife three times in the eighteen months preceding the charged crime to show motive or intent because the appellant denied committing the charged crime and “[n]either party did anything to make motive or intent significant to any contested fact”); Foburg v. State, 744 So.2d 1175, 1178 (Fla. 2d DCA 1999) (“The only purpose served by the State’s introduction of the Williams rule evidence was to imply that because [the appellant] had committed similar acts seventeen to twenty years ago, he must have committed the acts with which he was now charged.”); Roberts v. State, 662 So.2d 1308, 1310 (Fla. 4th DCA 1995) (reversing the admission of collateral crime evidence offered to show intent and absence of mistake because those issues “[were] not actually in dispute”).

Accordingly, we reverse Appellant’s convictions and sentences and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

WOLF and WETHERELL, JJ., CONCUR.