author: ROTHSTEIN-YOUAKIM, Judge.

text:
    SOUTHGATE HOLDING, INC., Appellant, v. Karen K. HARTE, Tim Diego, and Windgate Global, LLC, Appellees.
    Case No. 2D16-5046
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018.
    James A. Staack and Kristine M. Reighard of Staack, Simms & Reighard, PLLC, Clearwater, for Appellant.
    Derrick M. Valkenburg of Shutts & Bowen, LLP, Orlando; and Joshua D. Miron of Shutts & Bowen, LLP, Fort Lauderdale (substituted as counsel of record), for Appellee Karen K. Harte.
    No appearance for remaining Appellees.
   ROTHSTEIN-YOUAKIM, Judge.

Southgate Holding, Inc. (Southgate), appeals a partial final summary judgment awarding Karen K. Harte $100,000 plus interest on her claim of breach of a partial assignment of a note and mortgage. Southgate argues that Harte failed to satisfy her burden of proving that there is no genuine issue of material fact regarding Southgate's affirmative defense of failure of consideration. We agree, and we reverse.

The pertinent facts are these:

Steve Georgiou, Flora Georgiou, and Anclote Marine Ways, Inc., a Florida Profit Corporation of which the Georgious were both officers, executed a $650,000 balloon note and mortgage in favor of various persons and entities, including Southgate. The mortgage identified certain parcels located in Pinellas County, Florida. In April 2010, Tim Diego, Southgate's only officer, executed on Southgate's behalf a partial assignment of its interest in the note and mortgage to Harte for consideration of $100,000.

The note ultimately was paid off, Diego executed a full satisfaction of the note and mortgage on Southgate's behalf, and the balloon payment was disbursed to the original holders, including Southgate. Thereafter, Harte filed suit against Southgate, Diego, and Windgate Global, LLC (Windgate), of which Diego is also the only officer, alleging that Southgate had failed to acknowledge its partial assignment of its interest to her and had instead forwarded her share to Windgate. Southgate answered that it had never received any of the money that Harte had agreed to pay for the partial assignment of its interest.

Harte filed a motion for summary judgment accompanied by multiple affidavits, including her own, and various documents that she asserts establish Southgate's acknowledgment of her $100,000 investment. She also subsequently filed her answers to Southgate's interrogatories. Southgate offered no legal argument in response but filed an affidavit from Diego-in which he averred that, among other things, Southgate had "not [been] aware" of Harte's purported interest-and two documents, one of which assertedly showed that on May 3, 2010, Harte had attempted to wire $100,000 to Southgate but that the attempt had failed due to insufficient funds.

"Summary judgment is proper only where the moving party shows conclusively that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law." Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So.3d 251, 253 (Fla. 2d DCA 2011) (first citing Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966) ; then citing Fla. R. Civ. P. 1.510(c) ). Because Southgate alleged failure of consideration as an affirmative defense, Harte's burden included conclusively refuting the factual basis for that defense. See id. (citing Morroni v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d DCA 2005) ). This is a high burden, as "the merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment." Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000) ).

The trial court's written order did not explain its reasoning in determining that no genuine issue of material fact existed as to Harte's claim for breach of the partial assignment, and we do not have a transcript of the summary judgment hearing. Upon our de novo review of the motion and the summary judgment evidence, however, we conclude that Harte has failed to establish that no genuine issue of material fact remains concerning whether Southgate ever received the $100,000 that Harte promised to pay for the partial assignment of Southgate's interest. Accordingly, we reverse the partial final summary judgment and remand for further proceedings.

Reversed; remanded.

CASANUEVA and MORRIS, JJ., Concur.

      Although Harte asserted claims against all of the defendants, this appeal concerns only count one, her claim against Southgate for breach of a partial assignment of mortgage.

      Diego also averred that the wire transfer had been directed to Southgate's general operations account and not to any investment account, "which would have been in keeping with [Southgate's] policies and procedures."

      The absence of a transcript does not preclude our review. See Houk v. PennyMac Corp., 210 So.3d 726, 730 (Fla. 2d DCA 2017) ("[H]earing transcripts ordinarily are not necessary for appellate review of a summary judgment." (quoting Shahar v. Green Tree Servicing, LLC, 125 So.3d 251, 254 (Fla. 4th DCA 2013) ) ).


source: Caselaw Access Project

author: Jay, J.

license: Public Domain

text:
    Brenden BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-975
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Jay, J.

Appellant was tried on the charge of armed robbery. The jury found him guilty as charged. On appeal, he raises four points for reversal. We find no error under any of the points and affirm on all four. We write only to address our affirmance on Point II because the relevant facts exemplify a permissible use of rebuttal argument in a criminal trial.

Under Point II, Appellant claims that the trial court erred when it denied defense counsel's request during closing arguments to respond to the State's rebuttal argument. Counsel maintained that the prosecutor's statements in her rebuttal argument improperly transcended the scope of the defense closing argument, and the trial court's failure to give defense counsel an opportunity to respond was similar to the denial of a re-cross examination when a new matter is raised on redirect.

We review a trial court's ruling on the propriety of closing argument for an abuse of discretion. See Cardona v. State , 185 So.3d 514, 520 (Fla. 2016). In the present case, we are not persuaded by Appellant's argument that the trial court abused its discretion. Instead, we view the prosecutor's rebuttal as a fair comment on defense counsel's closing. Our reasoning is set forth below.

The evidence at trial established that two men robbed the victim at gunpoint in the late night hours of December 19, 2015. While one of the robbers held a gun on the victim, the other robber grabbed her purse to find the keys to her car. Once it became clear that the keys were not in her purse-and because her screams for help were growing louder-the robbers settled on taking the victim's wallet, which contained a single dollar bill. They kept the dollar, but threw away the gun and the wallet after they fled. Neither item was recovered.

The police quickly responded to the scene of the crime, and the victim gave a clear description of the robbers' distinct attire. Within moments of a be-on-the-look-out ("BOLO") alert, another officer apprehended two men fitting the victim's description a half mile from the scene of the robbery. The initial responding officer drove the victim to where the men were being detained to conduct a "show-up." The victim was able to directly identify one of the men by both his attire and his face, but was only able to identify the second man by his attire. Appellant was that second man. Both men were taken into custody and interviewed by a robbery detective. During Appellant's interview, he admitted to having been with the other man-Derrick Matthews-earlier in the evening, smoking marijuana, but he denied being with Matthews when the robbery occurred.

At Appellant's trial, Derrick Matthews appeared as the State's key witness, having already pleaded guilty to the robbery. Matthews testified that Appellant was the man who had held the gun on the victim while directing Matthews to take her purse. Also testifying for the State was Detective Blankinchip, who revealed that after he had interviewed Appellant, he placed Appellant and Matthews alone together in an interview room that was wired for audio, allowing Detective Blankinchip to listen to their conversation. The detective testified that he heard Appellant tell Matthews: "Don't say sh*t."

During his closing argument, defense counsel urged the jury to place little weight on Derrick Matthews' testimony, insinuating that in exchange for his cooperation in incriminating Appellant, the State would argue on Matthews' behalf for a light sentence. As for Detective Blankinchip's testimony, counsel had this, and only this, to say:

Then the State called Officer Blankinchip and he [Appellant] honestly admitted that he was with Derrick Matthews earlier in the day smoking marijuana, but he didn't say anything about the subject incident. There's no confession or admission there. And Detective Blankinchip kind of sneered when he talked about my client Brenden Brown's refusal to talk any further. But he had to admit [on cross-examination], there's a lot of innocent people that wisely choose not to talk to the police. So you can't take any error for anything with somebody using their good judgment and not talking with a law enforcement officer. Maybe wait until they get a lawyer.

Counsel briefly discussed the remaining evidence and then exhorted the jury not to convict Appellant because the whole of the State's case depended on "Derrick Matthews' testimony, and he [was] a completely dishonest lying [and] unbelievable individual."

After the courtroom settled, the prosecutor stood to deliver her rebuttal argument. " 'Do not say sh*t,' " she began, quoting Appellant. Defense counsel did not object. The prosecutor continued: "That's what this defendant said to Derrick Matthews when they were together in the Interview Room the night that they robbed [the victim] at gunpoint." Still no objection. The prosecutor went on: "Ladies and gentlemen of the Jury, I want you to think based on the defense's Closing Argument, don't say sh*t about what, if the Defendant wasn't even there. If the Victim made up a second assailant and it was all Derrick Matthews." The defense was silent.

After the prosecutor finished her rebuttal argument, defense counsel requested a side-bar at which, out of the hearing of the jury, he argued that the State's rebuttal had exceeded the scope of his closing argument with the "Do not say sh*t comment." He pointed out that the comment was not addressed in his closing and the prosecutor's quote "kind of came out of the blue." Accordingly, he asked the trial court to permit him the opportunity to address "just that point." The trial court denied the request, finding that the prosecutor's argument was "fair comment" on defense counsel's "generic" reference to the detective's interview and his failure to address Appellant's subsequent statement to Matthews.

Defense counsel's closing argument deftly omitted any acknowledgment of Appellant's instruction to Matthews. That strategy left a monumental hole in the evidentiary narrative that the State had every right to fill in-to rebut defense counsel's argument that Appellant's only statement was that he was not a participant in the robbery and that Appellant "didn't say anything about the subject incident." In that respect, the State's rebuttal qualified as a legitimate, real-time reaction to defense counsel's synopsis of the State's evidence.

"The proper limit of a rebuttal is 'a reply to what has been brought out in the defendant's [closing] argument.' " Brown v. State , 18 So.3d 1149, 1151 (Fla. 4th DCA 2009) (quoting Heddendorf v. Joyce , 178 So.2d 126, 130 (Fla. 2d DCA 1965) ); see also Jackson v. State , 147 So.3d 469 (Fla. 2014) (holding that the prosecutor's comments made in rebuttal to the defense's closing arguments, which "implicitly rebuked the defense's closing arguments," were, instead, "a fair response to defense counsel's attack on the credibility of the State's witnesses"). Yet, a variant of that rule is also true. Certain facts may be strategically omitted in a closing argument in order to enhance the non-criminal explanation for the defendant's behavior. In those circumstances, the State's invited response-to facts that are in the record but omitted by defense counsel-falls within the appropriate boundaries of rebuttal argument. See Walls v. State , 926 So.2d 1156, 1166 (Fla. 2006) ("A prosecutor's comments are not improper where they fall into the category of an 'invited response' by the preceding argument of defense counsel concerning the same subject."); State v. Ling , 212 So.3d 530, 533 (Fla. 1st DCA 2017) ("Where defense counsel places an issue before the jury in closing argument, the prosecution is permitted to respond, and the defense may not be granted a new trial because the state 'rose to the bait.' ") (citation and internal quotations omitted); Lot v. State , 13 So.3d 1121, 1124 (Fla. 3d DCA 2009) ("[T]he State's comments were made in direct response to the defendant's closing argument that the defendant's easily-traceable actions indicate a non-criminal motive or intent.... [W]e hold that the trial court acted within its discretion by allowing the prosecutor's argument and denying the defendant's subsequent motion for a mistrial."); cf. Brown , 18 So.3d at 1150-51 (holding that the State's thirty-four-slide PowerPoint presentation on rebuttal-which included a photograph never introduced in the evidence and the name of a witness who never testified at trial-went far beyond its proper function as a reply to the defense's closing argument).

Here, at the close of defense counsel's argument, the jurors were left with the impression that Appellant's last word on the subject robbery was his statement to Detective Blankinchip that he did not commit the crime. The State, therefore, was entitled to remind them of Detective Blankinchip's testimony concerning what Appellant said to Matthews, as well as to argue any fair inferences from that testimony.

Accordingly, because the State's rebuttal did not come "out of the blue," but was invited by defense counsel's argument, we hold that the trial court did not abuse its discretion in denying defense counsel a second opportunity to address the jury.

AFFIRMED .

Winsor and M.K. Thomas, JJ., concur.


author: B.L. Thomas, C.J.

text:
    Beverly INMON, Surviving Spouse of Matthew Inmon (Deceased), Appellant, v. CONVERGENCE EMPLOYEE LEASING III, INC., Technology Insurance Company, and AmTrust North America of Florida, Appellees.
    No. 1D17-0815
    District Court of Appeal of Florida, First District.
    April 18, 2018
    John J. Rahaim II and Amie DeGuzman, Jacksonville, for Appellant.
    Rayford H. Taylor of Hall Booth Smith, P.C., Atlanta, and Heather Bryer-Carbone of Marshall Dennehey Warner Coleman & Coggin, Jacksonville, for Appellees.
   B.L. Thomas, C.J.

In this worker's compensation case, Claimant (the deceased Employee's spouse) appeals the judge of compensation claims' (JCC's) final order denying her claim for death benefits and funeral expenses under section 440.16, Florida Statutes (2014). In the order, the JCC found that no benefits were payable in accordance with subsection 440.09(3), Florida Statutes (2014), because the Employee's death was primarily occasioned by his intoxication. We reject Claimant's argument that the JCC was precluded from considering an intoxication defense under the circumstances of this case. Nevertheless, we reverse the denial of benefits because competent, substantial evidence (CSE) does not support the JCC's ultimate conclusion that the Employee's death was primarily occasioned by his intoxication.

Under subsection 440.09(3), compensation is not payable if the injury was occasioned primarily by the intoxication of the employee. Although section 440.09(7)(b) also provides that evidence of a certain blood alcohol level creates a presumption that injury or death was occasioned primarily by the intoxication of the employee, the Employer/Carrier (E/C) here were not entitled to the presumption due to their non-compliance with the collection and chain of custody procedures set forth in the administrative rules. See, e.g., European Marble Co. v. Robinson , 885 So.2d 502, 506-507 (Fla. 1st DCA 2004) (holding that lack of compliance with administrative rules on blood-alcohol testing precludes presumption that injury primarily occasioned by alcohol). Although the JCC found the blood alcohol testing did not sufficiently comply with the Florida Administrative Code to establish the intoxication presumption under section 440.09(7)(b), the results were admissible on other grounds as chain of custody and authentication were properly established.

"When the presumption in section 440.09(7)(b) does not apply, employer/carriers must 'establish, by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee.' " See Thomas v. Bircheat , 16 So.3d 198, 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group , 821 So.2d 455, 456 (Fla. 1st DCA 2002) ; see also Sterling v. Mike Brown, Inc. , 580 So.2d 832, 835 (Fla. 1st DCA 1991) (affirming JCC's order finding employee's injury was primarily caused by his intoxication even without presumption). Thus, our standard of review here is whether CSE supports the JCC's finding that the preponderance of the evidence proved the Employee's death was occasioned primarily by his intoxication, despite the inapplicability of the presumption.

The undisputed evidence establishes that the Employee, a construction helper, had been assigned to an out-of-town job with Employer-provided per diem and hotel accommodations. After work on April 15, 2015, the Employee's supervisor dropped the Employee off at a bar a few miles from his hotel. Later that evening, the Employee was struck and killed by a truck on US Highway 1. Surveillance video showed that the Employee was weaving in and out of the road shortly before the accident, but the incident itself was not video recorded. Claimant, who was talking with the Employee on his cell phone at the time he was struck, testified that that he was trying to flag down a ride, dropped his phone twice during their conversation, and appeared to her to be intoxicated, but functional. The E/C stipulated that the Employee was on travel status and within the course and scope of his employment when the accident occurred. Test results from the Employee's autopsy indicated a blood alcohol level in excess of the legal limit.

In support of their intoxication defense, the E/C presented the surveillance video along with the testimony of Corporal Gaugh, the traffic homicide investigator who was called to the scene to investigate the Employee's death. The JCC, however, excluded a good deal of the investigator's testimony based on hearsay, speculation, and the witness's lack of expertise as an accident reconstruction specialist. The JCC also sustained numerous objections to testimony from a private investigator hired by the E/C. Notably, the E/C did not present evidence from any of the potential eyewitnesses to the accident including the truck driver and another motorist who was behind the truck driver.

In this appeal, Claimant challenges both the sufficiency and admissibility of the evidence relied upon by the JCC when he determined that the Employee was intoxicated when he was killed and that his death was primarily occasioned by his intoxication. The JCC's determination involved findings of fact that must be upheld if any view of the evidence and its permissible inferences supports them. See Ullman v. City of Tampa Parks Dep't. , 625 So.2d 868, 873 (Fla. 1st DCA 1993) (holding factual findings are reviewed for CSE). Based on our review of the record, CSE supports the JCC's factual finding that the Employee was intoxicated at the time of his death, even if we were to find, as Claimant argues, that the blood alcohol test results should not have been admitted for any purpose. But just the fact that the Employee was intoxicated will not constitute CSE to support the JCC's ultimate conclusion that his death was primarily occasioned by his intoxication.

In the order on appeal, the JCC concluded that the accident was occasioned primarily by the Employee's intoxication based on his finding that the Employee was in the middle of the road at the time he was struck. In support, the JCC listed the following evidence: (1) the video showing the Employee "stumbling in and out of the road where cars were driving by him just minutes prior to the actual collision"; (2) damage on the driver's side of the truck "which allows a reasonable inference that [the Employee] was in the middle of the road when the [truck] hit its brakes"; and (3) the placement of the Employee's body in relationship to the final resting place of the truck that struck him. Assuming, for the sake of argument, that the Employee's presence in the middle of the road is both the cause of the accident and primarily a result of his intoxication, CSE does not otherwise support the JCC's finding that the Employee was in the road at the time of the collision.

Under the circumstances here, all three of the factual findings are of questionable probative value in establishing the Employee's location at the time of the accident. First, because the surveillance video does not show the collision itself, it is unclear why this footage alone makes it more likely than not that the Employee was in the road when he was struck. Second, the inference that the JCC drew from the damage on the truck might be reasonable if an accident reconstruction expert had provided an opinion establishing the middle of the road as likely the point of impact based on, for example, the tire skid marks. Without this evidence, and in the absence of eyewitness testimony, the possibility cannot be ruled out that the truck veered off the road for some reason unrelated to the Employee's presence and struck the Employee while he was standing somewhere off of the road. Third, the placement of the Employee's body in relation to the truck was established by Corporal Gaugh's testimony of what he observed on the scene after the Employee's body had been moved by emergency medical service personnel.

In short, the JCC's deduction that the Employee was in the road at the time of the collision is based on inferences with no direct evidence. Stacked upon this inference is the inference that the Employee could only have been in the road because he was intoxicated. This is an impermissible stacking of inferences to establish an essential finding of fact. See, e.g., Espada Enters., Inc., v. Spiro, 481 So.2d 1265, 1268 (Fla. 1st DCA 1986) (reversing deputy commissioner's award of death benefits where finding of compensability was based on certain assumptions and inferences rather than CSE) (citing Girdley Constr. Co. v. Ohmstede , 465 So.2d 594, 596 (Fla. 1st DCA 1985) (reversing deputy commissioner's finding that employee's death was result of compensable accident based on impermissible stacking of inferences) ).

Accordingly, we REVERSE the order below and REMAND for entry of an order awarding Claimant death benefits and funeral expenses under section 440.16.

Jay and M.K. Thomas, JJ., concur.

      Although the JCC found the blood alcohol evidence was insufficient, standing on its own, to establish the statutory presumption on causation, he accepted expert evidence that the Employee's blood alcohol level constituted intoxication.


author: Per Curiam.

text:
    Lee GREENFIELD, Appellant, v. TALLAHASSEE POLICE DEPARTMENT and City of Tallahassee Risk Management Department, Appellees.
    No. 1D17-3311
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for Appellant.
    Christopher J. Dubois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellees.
   Per Curiam.

Claimant argues that the Judge of Compensation Claims (JCC) erred in assessing a no-show fee for Claimant's failure to appear for an independent medical examination (IME) scheduled by the Employer/Carrier (E/C) and that the awarded fee was excessive. Because the E/C's notice to Claimant and his attorney of the scheduled IME was not in compliance with the statutorily-imposed notice requirements, and there was no evidence to support the $1,000 award for the review of records, we agree with Claimant and reverse the awards.

Paragraphs 440.13(5)(c)-(d), Florida Statutes (2010), require the E/C to "confirm the scheduling agreement in writing with the claimant and the claimant's counsel, if any, at least 7 days before the date upon which the [IME] is scheduled to occur," and no cancellation fee will be imposed if the E/C "fails to timely provide to the employee a written confirmation of the date of the examination pursuant to paragraph (c)."

Here, Claimant's attorney was notified on October 14, 2015, of the IME scheduled for October 19, 2015, less than seven days before the scheduled IME. There is no evidence that the E/C notified Claimant directly. Claimant's attorney replied to the E/C on October 16, explaining that because there was no way that the IME could be listed as a witness for the upcoming hearing, there was no purpose for Claimant to attend the IME. Claimant's attorney suggested that the exam be cancelled so as not to "risk losing any prepayment." Claimant did not attend the exam.

Following a hearing on the E/C's motion seeking an award of a no-show fee, the JCC entered an order awarding the fee and directed the E/C to ascertain from the doctor "what the no-show fee would have been if the [sic] Dr. Loeb was given cancellation notice on October 16, 2015," as that was to be the fee awarded in an addendum order. The E/C filed a notice with the JCC advising that the no-show fee would have been $1,750 with one business day's notice. No addendum order was entered.

After successfully defending a claim for a medical apparatus, the E/C filed a motion to tax prevailing party costs that included a request for reimbursement of the costs associated with the failed IME. Claimant asserted that the E/C was precluded from recovering a no-show fee because they did not give Claimant and his counsel timely notice of the upcoming exam. In the course of the hearing, the JCC described the notice requirement as a "technicality." The JCC awarded a no-show fee of $1,750 and a $1,000 charge for a records review, for a total of $2,750, bringing the total costs award to $4,863.33. Claimant does not dispute that the remaining costs awarded-$2,113.33-are due the E/C.

Because resolution of the E/C's entitlement to a no-show fee requires statutory construction, our review is de novo. See Lombardi v. S. Wine & Spirits , 890 So.2d 1128, 1129 (Fla. 1st DCA 2004). In construing a statute, courts must first look to its plain language. See Perez v. Rooms To Go , 997 So.2d 511, 512 (Fla. 1st DCA 2008).

Paragraph 440.13(5)(c) specifically requires that the carrier provide an employee and the employee's attorney, if any, seven days' notice-in writing-of an IME.

Here, the E/C's notice of the IME did not conform with the statutory notice required by paragraph 440.13(5)(c). Therefore, Claimant does not owe the E/C 50% of the no-show fee. Accordingly, that portion of the order awarding 50% of the no-show fee is reversed.

Claimant also challenges the award as being excessive. "The award of specific costs is reviewed by this court for abuse of discretion." Marton v. Fla. Hosp. Ormond Beach , 98 So.3d 754, 756 (Fla. 1st DCA 2012). In addition to the no-show fee, the JCC awarded the E/C the cost charged by Dr. Loeb for a review of the medical records.

Under no scenario was the cost for the records review awardable. Because it was not part of the no-show fee, it was not awardable on that basis. See id. at 758-59 (explaining that it was improper to include charge such as "[r]eserved time fee for updated IME" in no-show fee). If the charge was not associated with the no-show fee, it was not otherwise awardable as either a part of the IME exam or as part of any deposition preparation because those events never took place. Furthermore, the E/C did not establish that Dr. Loeb's testimony could be submitted into evidence at the upcoming hearing. Thus, the cost would not be one "necessary to maintain the claim." Id. at 757.

Accordingly, we REVERSE and REMAND for entry of an order awarding the E/C prevailing party costs of $2,113.33.

Wolf, Bilbrey, and Kelsey, JJ., concur.


author: PER CURIAM.

text:
    Jack E. DE LA PIEDRA, Husband, Appellant, v. Katherine M. DE LA PIEDRA, Wife, Appellee.
    No. 1D17-3203
    District Court of Appeal of Florida, First District.
    April 25, 2018
    Travis R. Johnson of Meador Johnson & Bushnell, P.A., Pensacola, for Appellant.
    John L. Myrick, Pensacola, for Appellee.
   PER CURIAM.

Jack De La Piedra appeals a temporary order setting alimony and child support, and requiring him to contribute a substantial sum toward his wife Katherine M. De La Piedra's attorneys' fees. He contends that these amounts were improperly calculated and that he does not have the ability to pay. We reverse.

The parties are in the midst of dissolution of marriage proceedings in the trial court. Appellant-husband works as an attorney and financially supported the family during the marriage, while Appellee-wife devoted her time to homemaking and raising the parties' three children.

The temporary order below requires Appellant to pay direct alimony ($2,500/month), child support ($330.72/month), and other in-kind alimony payments to cover Appellee's mortgage, medical and vehicle insurance, student loans, cell phone bills, and medical bills. See Williams v. Williams , 10 So.3d 651, 652 n.1 (Fla. 5th DCA 2009) (treating mortgage payments on behalf of the other spouse as in-kind alimony). In addition, the temporary order requires Appellant to pay $10,500 towards Appellee's attorney's fees.

Appellant claims that the court abused its discretion by awarding these amounts, which he lacks the ability to pay. While temporary alimony awards are within the trial court's sound discretion, there must be competent substantial evidence showing that the payee has a need and the payer has the ability to pay. Buchanan v. Buchanan , 225 So.3d 1002, 1003 (Fla. 1st DCA 2017) ; § 61.08(2), Fla. Stat. "If an award is in excess of a party's ability to pay, then it is not supported by competent, substantial evidence, and a trial court abuses its discretion by ordering such an award." Buchanan, 225 So.3d at 1003 (citing Hotaling v. Hotaling , 962 So.2d 1048, 1051 (Fla. 2d DCA 2007) ); see also § 61.071, Fla. Stat. (allowing for reasonable sum alimony pendente lite where a well-founded petition for alimony is filed). We must reverse the temporary alimony award in this case, because the record does not provide competent, substantial evidence that Appellant has the ability to pay, nor dispel Appellant's argument that the obligation exceeds 90% of his net monthly income, leaving him only "approximately $300.00 per month with which to support himself and his children, two of whom he exercises half of the time sharing with, and one who lives primarily with him."

We also find that the child support calculation amount improperly accounted for the alimony award. In calculating income for child support purposes, alimony must be included as income. See § 61.30(2)(a)(9), Fla. Stat.; Christensen v. Christensen , 147 So.3d 118, 119 (Fla. 1st DCA 2014). The spousal support amounts should also have been deducted from Appellant's income. § 61.30(3)(g), Fla. Stat. In this case, the worksheets used by the court did not include alimony in Appellee's income and did not account for all of the in-kind alimony. On remand, the trial court should account for all of the alimony awarded when calculating the child support amount.

Finally, Appellant contends that the court abused its discretion in requiring him to pay $10,500 toward Appellee's attorney's fees because he does not have the ability to pay that amount. The primary considerations for an award of attorney's fees under section 61.16, Florida Statutes, are the party's need and the other party's ability to pay. See, e.g. , Shawfrank v. Shawfrank , 97 So.3d 934, 936 (Fla. 1st DCA 2012). The trial court must take alimony and child support payments into account when determining whether the party has the ability to pay. See Haywald v. Fougere , 164 So.3d 786, 787 (Fla. 1st DCA 2015). Accordingly, when "the trial court has equalized incomes through its alimony award, the trial court abuses its discretion in awarding attorney's fees." Galligar v. Galligar , 77 So.3d 808, 813 (Fla. 1st DCA 2011). Because we are reversing the court's alimony and child support awards, the ultimate determination of whether Appellee is entitled to help with her attorney's fees will be intertwined with the court's remand determination. See Schroll v. Schroll , 227 So.3d 232, 238 (Fla. 1st DCA 2017). Thus, the trial court should revisit the issue of Appellee's entitlement to attorney's fees pursuant to section 61.16(1), "based on the extent to which the parties' respective financial circumstances are altered on remand." Id.

For these reasons, we reverse the temporary order and remand for further proceedings consistent with this opinion.

Lewis, Osterhaus, and Bilbrey, JJ., concur.


text:
    Norann D. WEBB, Charles A. Daniell, Claude O. Daniell, Roberta D. Jernigan, James E. Daniell, Alisa D. Lopez, Rebecca E. Daniell, Beth M. Daniell and Marc M. Daniell, Appellants, v. Judith D. BLUE, as Personal Representative of the Estate of Herbert Otis Daniell, Appellee.
    No. 1D17-1510
    District Court of Appeal of Florida, First District.
    April 25, 2018 Rehearing Denied June 4, 2018
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellants.
    Nicholas L. Bruce of Collins, Brown, Barkett, Garavaglia & Lawn, CHTD., Vero Beach, for Appellee.
   Jay, J.

In this appeal from various probate orders, we affirm in all respects and write only to address Appellants' claim that the trial court erred in finding that the decedent validly devised his homestead as part of the probate estate. Specifically, we reject Appellants' assertion that the decedent was required to specially devise his homestead to Appellee, a non-heir, where the decedent was survived by heirs.

I.

On August 21, 2016, the decedent, Herbert Otis Daniell, died testate with no surviving spouse or children. The decedent's last will and testament, executed on February 26, 2013, named Judith D. Blue ("Appellee") as the personal representative and sole beneficiary. The will included the following provision: "My entire estate is all property I own at my death that is subject to this will. I leave my entire estate to Judith D. Blue."

On October 4, 2016, Appellee filed a petition for administration. The petition and an inventory listed two estate assets: (1) the decedent's non-exempt homestead (valued at $136,236.00); and (2) the decedent's truck (valued at $12,000.00).

On February 9, 2017, relatives of the decedent ("Appellants") filed a Petition to Determine Homestead Status of Real Property. The petition asserted the real property was the decedent's homestead and descended to the decedent's legitimate heirs where there was no specific intent in the will to pass the homestead property to Appellee, who was at most a friend rather than legal heir of the decedent. Appellee objected to the petition on the ground that the decedent claimed a homestead exemption for ad valorem taxation purposes, but devised the property without homestead protection. Appellants responded that the will was prepared by a non-attorney and did not contain the language required to include homestead property into the estate.

On March 15, 2017, the trial court rendered an order that, among other things, denied the Petition to Determine Homestead Status of Real Property. Specifically, the court found that the decedent was not survived by a spouse or minor child and that the decedent could freely devise his homestead to anyone. The court further found that the decedent's will very clearly stated his intention to leave his entire estate, including his homestead, to Appellee. This appeal followed.

II.

Article X, section 4(c) of the Florida Constitution provides in pertinent part:

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child.

This constitutional provision " 'is designed to protect two classes of persons only: surviving spouses and minor children.' " City Nat'l Bank of Fla. v. Tescher , 578 So.2d 701, 703 (Fla. 1991) (quoting Wadsworth v. First Union Nat'l Bank of Fla. , 564 So.2d 634, 636 (Fla. 5th DCA 1990) ). Moreover, this "restraint on the right of an individual to devise property at death should not be extended beyond that expressly allowed by the constitution." Id.

As a result, "[w]hen there are no surviving minor children and the surviving spouse has waived her homestead rights, there is no constitutional restriction on the devise of the homestead." Stone v. Stone , 157 So.3d 295, 304 (Fla. 4th DCA 2014). In Stone , because there were no minor children and because the wife waived her homestead rights, the decedent's adult son was not entitled to seek the protection of the homestead devise restrictions and the decedent was free to devise his interest in the homestead property-without any constitutional restriction-to his adult daughter. Id.

Similarly, here, because the decedent was not survived by a spouse or by minor children, there was no constitutional restriction on the devise of the homestead. Thus, the homestead could be devised to heirs-the class of persons who could be a beneficiary under the laws of intestacy-in order to maintain the homestead's protections against creditors. Snyder v. Davis , 699 So.2d 999, 1003-05 (Fla. 1997). Alternatively, the homestead could be devised to someone other than an heir, which would render the homestead a general asset of the estate subject to administrative expenses and claims. Id. at 1005 (citing State, Dep't of Health & Rehab. Servs. v. Trammell , 508 So.2d 422 (Fla. 1st DCA 1987) ); see also In re Estate of Hamel , 821 So.2d 1276, 1279 (Fla. 2d DCA 2002) ("Florida courts have continued to hold that homestead does not become part of the probate estate unless a testamentary disposition is permitted and is made to someone other than an heir, i.e., a person to whom the benefit of homestead protection could not inure.").

"It is an elementary principle that a person can dispose of his or her property by will as he or she pleases so long as that person's intent is not contrary to any principle of law or public policy." McKean v. Warburton , 919 So.2d 341, 344 (Fla. 2005). "[O]nce the intent of the testator is ascertained, the entire will should be considered and construed liberally to effectuate the testator's intent." Id. The testator's intent to devise a homestead is " 'that which is manifest, either expressly or by necessary implication, from the language of the will, as viewed, in case of ambiguity, in the light of the situation of the testator and the circumstances surrounding him at the time it was executed, although technical words are not used[.]' " Pajares v. Donahue , 33 So.3d 700, 702-03 (Fla. 4th DCA 2010) (quoting Rewis v. Rewis , 79 Fla. 126, 84 So. 93, 94 (1920) ).

In this case, the decedent's will succinctly states: "My entire estate is all property I own at my death that is subject to this will. I leave my entire estate to Judith D. Blue." The first sentence simply means that the decedent's estate consists of all devisable property that the decedent owned at his death. Since it is undisputed that the decedent had no surviving spouse or minor children, the decedent's homestead constituted devisable property that the decedent owned at his death, rendering it part of the decedent's estate. Accordingly, the second sentence devised all of the decedent's estate-including his homestead-to Appellee.

Contrary to Appellants' assertions, there is no constitutional, statutory, or common law requirement that the decedent specifically devise his homestead to Appellee where the decedent is survived by heirs. Moreover, there is nothing in the decedent's will-or in the record-expressing the decedent's intent to leave his homestead to Appellants. Because it is undisputed that Appellee was merely a friend of the decedent, Appellee did not qualify as an heir under the laws of intestacy. See Trammell , 508 So.2d at 424 (holding that the decedent's "good friend" was not recognized as an heir under Florida law and was not entitled to the protection of the constitutional homestead provisions that exempt the decedent's property from forced sale). Thus, the trial court correctly concluded that the decedent's homestead became a part of the probate estate where a testamentary disposition was permitted and was made to someone other than an heir, i.e., a person to whom the benefit of homestead protection would not inure.

III.

Because the decedent's will expressed a clear intent to devise his homestead to Appellee, a non-heir, the homestead became part of the probate estate where the devise was permitted under article X, section 4(c). Accordingly, we affirm the trial court's denial of the Petition to Determine Homestead Status of Real Property as well as the court's other rulings challenged on appeal.

AFFIRMED .

B.L. Thomas, C.J., and Bilbrey, J., concur.


text:
    Miho Shiraishi MATTEO, Petitioner, v. Jerry Peter MATTEO, Respondent.
    No. 1D18-2005
    District Court of Appeal of Florida, First District.
    June 5, 2018
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Petitioner.
    No appearance for Respondent.
   Per Curiam.

The petition for writ of prohibition is DENIED .

Wolf, Jay, and Winsor, JJ., concur.


text:
    Jessie FLOYD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0855
    District Court of Appeal of Florida, First District.
    May 30, 2018
    Jessie Floyd, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Makar, Winokur, and Winsor, JJ., concur.


author: PER CURIAM:

text:
    STATE EX REL. Terry Lynn TERRY v. STATE of Louisiana
    No. 17-KH-0237
    Supreme Court of Louisiana.
    May 25, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ in part.


text:
    Raphael GUILLORY, Jr. v. R & R CONSTRUCTION, INC., et al.
    NO. 2018-C-0581
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. Jarvis BROWN
    NO. 2017-KO-1145
    Supreme Court of Louisiana.
    Louisiana June 1, 2018
    Denied.


text:
    Brooke PULLIN v. Linda A. CHAUVIN, BST Leasing, Inc. and State Farm Mutual Automobile Insurance Company
    NO. 2018-C-0572
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    Yvonne AINSWORTH, Individually and on Behalf of Her Deceased Mother, Sylvia Taylor v. AMERICAN HOME ASSURANCE COMPANY, Healthcare Casualty Insurance Limited, Aggreko, LLC, and Touro Infirmary
    NO. 2018-C-0582
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.
   WEIMER, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Glenn GUYN
    NO. 2017-KO-1082
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Randy ANDERSON
    NO. 2017-KO-1913
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.
   CRICHTON, J., recused.


author: WEIMER, J., recused.

text:
    Petrie and Bertha THOMPSON v. The CENTER FOR PEDIATRIC AND ADOLESCENT MEDICINE, L.L.C., Bernard Gaudin, PNP, Henry M. Peltier, M.D., Louisiana Medical Mutual Insurance Company, and American Casualty Company OP Reading, Pennsylvania
    NO. 2018-C-0583
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.
   WEIMER, J., recused.

CLARK, J., would grant.


text:
    Ronald H. BENNETT, et al. v. ETHYL CORPORATION, et al.
    NO. 2018-CC-0593
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. William ROSE, Sr.
    NO. 2017-OK-1542
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. Evelyn CLANTON
    NO. 2018-KK-0820
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. Keith BARRON
    NO. 2017-KO-1529
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. Damion SAVAGE
    NO. 2017-KO-1083
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE EX REL. Ronald NAQUIN v. STATE of Louisiana
    NO. 2017-KH-0619
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. Gary Lewis WALKER
    NO. 2017-KO-1101
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. Tyrone Lentrell POPE
    NO. 2017-K-1744
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. Nathaniel Allen MINGO
    NO. 2017-KO-1894
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. Patrick Seth JONES
    NO. 2017-KO-1905
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    SUCCESSION OF Bernadette Gaines GILBERT
    Succession of Bernadette Gaines Gilbert
    NO. 2017-C-2181
    Supreme Court of Louisiana.
    June 1, 2018
    Reconsideration denied.


text:
    In the MATTER OF the COMMITMENT OF C.G.W.
    NO. 2018-C-0326
    Supreme Court of Louisiana.
    June 1, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Richard HUDSON
    NO. 2017-K-1735
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.
   WEIMER, J., would grant.


text:
    Ricky A. CARVER v. Pamela Ann Sumler CARVER
    17-1055
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
   David C. Hesser, Hesser & Flynn, A Limited Liability Partnership, 2820 Jackson Street, Alexandria, LA 71301, (318) 542-4102, COUNSEL FOR PLAINTIFF/APPELLEE: Ricky A. Carver

Howell D. Jones, IV, Jones Law Firm, P. O. Box 14558, Alexandria, LA 71315, (318) 442-1515, COUNSEL FOR DEFENDANT/APPELLANT: Pamela Ann Sumler Carver

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and Van H. Kyzar, Judges.

SAUNDERS, Judge In this case, the appellant challenges the partition of community property formerly existing between the parties.

FACTS AND PROCEDURAL HISTORY:

Plaintiff, Ricky Carver ("Ricky"), and Defendant, Pamela Ann Sumler Carver ("Pamela"), were married on August 31, 1978. Ricky filed for divorce on December 9, 2009. Judgment of divorce was rendered on January 10, 2011. Of the Carvers' marriage, three children were born, one of whom remained under the age of majority at the time of divorce.

On May 11, 2010, Pamela filed a Motion to Partition Community Property, followed by a Sworn Detailed Descriptive List of all Community Property filed on January 24, 2011. Ricky filed a separate Sworn Detailed Descriptive List of all Community Property on March 9, 2011, to which Pamela filed a Traversal on October 14, 2011. Ricky responded by filing his own Traversal on December 12, 2011, and finally, by filing a Traversal/Amended Sworn Detailed Descriptive List on October 3, 2012.

Following a trial on the traversals, the trial court found in favor of Ricky and issued its written reasons on April 23, 2013. On October 11, 2013, Pamela filed a Motion to Reconsider, to which Ricky filed a Peremptory Exception of No Cause of Action. On December 18, 2014, the trial court issued written reasons for denying Pamela's Motion to Reconsider. A written judgment was not created until December 1, 2016. At the conclusion of the hearing, the trial court gave an oral ruling wherein it:

1. Fixed the fair market value of the community matrimonial home at $153,500.00;
2. Denied Pamela's request for reimbursement for rental value of the former matrimonial domicile;3. Denied each of the Carvers' requests for reimbursement of costs of improvements made to the former matrimonial domicile;
4. Decreed that all items contained in the residence at the time of separation are community;
5. Denied Ricky's claim for maintenance of the former matrimonial domicile;
6. Denied Pamela's request for reconsideration of rental reimbursements;
7. Ordered Ricky to cooperate upon his retirement, to affect a Qualified Domestic Order according to the Sims formula.

Pamela timely filed a motion for devolutive appeal. Pursuant to that motion, Pamela is presently before this court alleging three assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred by fixing a value for the community home contrary to the evidence.
2. The trial court erred in denying the reimbursement of rental value in and to the former matrimonial domicile.
3. The trial court erred by including as community property that which was inherited by and donated to Pamela from her ascendants.

ASSIGNMENT OF ERROR NUMBER ONE:

In her first assignment of error, Pamela argues that the trial court erred in fixing the value of the former matrimonial domicile. We find no merit to this contention.

An appellate court may not set aside a trial court's findings of fact in absence of manifest error unless it is clearly wrong. Stobart v. State, Through DOTD , 617 So.2d 880 (La.1993) ; Rosell v. ESCO , 549 So.2d 840 (La.1989).

Louisiana Revised Statutes 9:2801 sets forth the rules for partitioning community property and determining a party's reimbursement claims, and provides in pertinent part:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:
(1)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.

In Carmichael v. Brooks , 16-93, pp. 7-8 (La.App. 3 Cir. 6/22/16), 194 So.3d 832, 838 (citations omitted) this court noted:

It is well settled in Louisiana that the trier of fact is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. The trier of fact may accept or reject in whole or in part the opinion expressed by an expert. The effect and weight to be given expert testimony is within the broad discretion of the trial court. The decision reached by the trial court regarding expert testimony will not be disturbed on appeal absent a finding that the trial court abused its discretion.

In the instant matter, a review of the record reveals that the principal asset of the community is the former matrimonial domicile. The parties disagree as to its fair market value and retained experts to determine its value. Pamela's expert in the field of appraisal and residential property, George Thibodeaux, testified that the range of value for the former matrimonial domicile was from $158,000.00 to $165,000.00. In making this determination, Mr. Thibodeaux included comparables from the town of Leesville, in addition to comparables in Anacoco, the town in which the home is located. He admitted that his report was several years old and that his values "may be a little high, may be a little low."

Ricky's expert in the field of real estate, Zachary Hajighassem, opined a value range of $152,980.00 to $131,611.00, and that the home should be listed for sale at $139,944.00. Mr. Hajighassem's opinion was based on comparable properties all located in Anococo. Importantly, both experts used comparable sales from properties sold three to four years prior to trial, both testified that such discrepancies are common in property appraisals, and both confirmed the value that each placed on the property. After weighing the two competing expert opinions, the trial court found a value of $153,500.00. We find it was within its discretion to do so. The trial court was not required to prefer one expert over the other. Accordingly, we affirm the trial court's judgment on this issue.

ASSIGNMENT OF ERROR NUMBER TWO:

In her second assignment of error, Pamela argues that the trial court erred in failing to award a rental reimbursement for rental value associated with the former matrimonial domicile. We find no merit to this contention.

Under manifest error or clearly wrong standard of review, an appellate court must determine whether the trial court made a factual finding that was manifestly erroneous or clearly wrong and must review the record in its entirety to make this determination. Blackshear v. Golden Age Nursing Center , LLC , 14-723 (La.App. 3 Cir. 2/4/15), 158 So.3d 179.

In McCarroll v. McCarroll , 96-2700, p. 16 (La. 10/21/1997), 701 So.2d 1280, 1288 (emphasis in original), the Louisiana Supreme Court stated:

La.R.S. 9:374(C) provides for the award of rental payments for a spouse's occupancy of the family residence pending partition of the community:A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provision of R.S. 9:374(A) or (B)shall not be liable to the other spouse for rental for the use and occupancy, unless otherwise agreed by the spouses or ordered by the court.

The McCarroll court went on to state: "Public policy also weighs heavily against the retroactive award of rent under La.R.S. 9:374(C)... when the community is not partitioned for many years, the retroactive assessment of rent is extremely prejudicial to the occupying spouse." Id. At 1290.

In the instant matter, a review of the record reveals that Ricky enjoyed the continued use and occupancy of the family home from May 18, 2010, throughout these proceedings. However, he expended considerable time, labor, and expense in maintaining the eight-acre property, and there was no rental agreement between the parties. Moreover, in 2011, the minor child went to live with Ricky and remained there for a considerable amount of time, and in 2012, Ricky was designated the minor child's domiciliary parent. Given the record in its entirety, it was within the trial court's discretion to consider the needs and best interest of the child in addition to the considerable time, labor, and expense used to maintain the property in denying the retroactive award of rent. Accordingly, we affirm the trial court's judgment on this issue.

ASSIGNMENT OF ERROR NUMBER THREE:

In her third assignment of error, Pamela argues that the trial court erred by including as community property that which was inherited by and donated to her from her ascendants. We find no merit to this contention.

An appellate court may not set aside a trial court's findings of fact in absence of manifest error unless it is clearly wrong. Stobart , 617 So.2d 880 ; Rosell , 549 So.2d 840.

Louisiana Civil Code Article 2340 provides: "Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property."

Louisiana Civil Code Article 2341 provides:

The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.

In the instant matter, our review of the record reveals that it is devoid of any evidence that any of the items contained in the former matrimonial domicile at the time of separation were inherited by or donated to Pamela individually by her ascendants. Therefore, we agree with the trial court's finding that things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. Accordingly, we affirm the trial court's judgment on this issue.

CONCLUSION:

Pamela asserts three assignments of error: (1) the trial court erred by fixing a value for the community home contrary to the evidence; (2) the trial court erred in denying reimbursement of rental value in and to the former community home; and (3) the trial court erred by including as community property that which was inherited by and donated to Pamela from her ascendants. Finding no merit to Pamela's first assignment of error, we affirm the trial court's judgment that the fair market value of the former matrimonial domicile is $153,500.00. Finding no merit to Pamela's second assignment of error, we affirm the trial court's judgment that Pamela is not entitled to rental value in and to the former matrimonial domicile. Finally, finding no merit to Pamela's third assignment of error, we affirm the trial court's judgment that Pamela did not overcome the presumption that all movables in the house at the time of separation are community property.

Costs of these proceedings are assessed to Pamela Ann Sumler Carver.

AFFIRMED.


author: Judge Daniel L. Dysart

text:
    NEW ORLEANS RIVERWALK MARKETPLACE, LLC v. The LOUISIANA TAX COMMISSION and Errol G. Williams, in his Capacity as Assessor for the Parish of Orleans Norman S. Foster, as Ex-Officio Tax Collector for the City of New Orleans and the City of New Orleans
    NO. 2017-CA-0968
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 30, 2018
    Scott J. Sonnier, ATTORNEY AT LAW, 650 Poydras Street, Suite 1400, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE
    John J. Weiler, Christian N. Weiler, Reese F. Williamson, WEILER & REES, LLC, 909 Poydras Street, Suite 1250, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dennis R. Bagneris, Pro Tempore)
   Judge Daniel L. Dysart

This is an appeal by Erroll G. Williams, the Assessor for the Parish of Orleans ("Assessor") of a district court judgment reversing a ruling of the Louisiana Tax Commission ("Tax Commission") which found that plaintiff-appellee, the New Orleans Riverwalk Marketplace, LLC ("Riverwalk"), was not entitled to a refund of taxes it paid in 2012. For the reasons that follow, we reverse the district court's judgment and find that Riverwalk is not entitled to a refund of its 2012 ad valorem tax payment.

FACTS AND PROCEDURAL HISTORY

According to the Riverwalk's Petition for Judicial Review and Appeal of Decision of the Louisiana Tax Commission (the "Petition") filed on March 17, 2016, the City of New Orleans (the "City") issued tax bill numbered 103100121 to Riverwalk for the 2012 tax year. The bill assessed Riverwalk's property interest as follows: $2,284,450 for the land and $158,670.00 for the improvements. Riverwalk paid the tax bill in January, 2012.

According to the Petition, after the bill was paid, "Riverwalk and the Assessor determined that the land assessed in [the tax bill], and which was assessed and taxed to Riverwalk in the subject tax bill, was actually owned by the Port of New Orleans ["the Port"]." Riverwalk maintained that the land was exempt from taxation under the Louisiana Constitution. The Assessor corrected the error and made appropriate adjustments for the year 2013, and for each year thereafter.

On October 20, 2014, Riverwalk requested a refund from the Tax Commission. A hearing on Riverwalk's refund request was held by the Tax Commission on December 8, 2015. The Tax Commission issued its ruling on February 12, 2016, denying Riverwalk's "request for refund of taxes paid in error." Its ruling was based on the "evidence presented by all parties ... and based upon the entirety of the record," and the Tax Commission's finding that "Riverwalk accepted the valuation and withdrew [its] appeal." More particularly, the Tax Commission found as follows:

The request [by the Riverwalk for a refund of the 2012 ad valorem taxes paid to the City] was made timely; however, the request was made subsequent to the withdrawal of an appeal to the Orleans Parish Board of Review.
The Riverwalk appealed to the Board and indicated a total requested assessed value of $1,884,050. T.J. Schoenemann of Thomas Reuters, Inc., a Property Tax Service, represented Riverwalk at the time of the appeal. Mr. Schoenemann formed his value using the income approach, a very reliable approach to value land and improvement as a total. Riverwalk later withdrew the appeal and accepted the assessor's value of $2,273,080.
Mr. Schoenemann's appeal withdrawal states, "Please accept this correspondence as acceptance of the 2012 valuation or assessment number 103100121 and withdrawal of the pending protest ...." Emphasis is given to "acceptance of valuation", not land valuation or improvement valuation, but the acceptance of the 2012 valuation of Assessment Number 103100121.

Riverwalk then filed the instant action in Civil District Court for the Parish of Orleans on March 17, 2016, seeking a reversal of the Tax Commission's ruling and further seeking a refund of the taxes it maintains it erroneously paid. Named as defendants in this suit are the Tax Commission; the Assessor; Norman Foster, in his capacity as the City's ex-officio tax collector; and the City.

After briefing by the parties, a hearing was held on the Petition on May 5, 2017. The district court issued a final judgment on May 22, 2017, reversing the Tax Commission's denial of Riverwalk's request for refund, granting Riverwalk's request and ordering Mr. Foster, as the City's tax collector, to refund $369,648.22 to Riverwalk.

A suspensive appeal was timely taken by the Assessor.

Record on appeal

The record before us includes the following documents (the Administrative Record) and information submitted to the Commission and filed in the record in Civil District Court (listed in date order, where the date is known):

- A November 12, 2012 form 3103.A, Appeal to the Tax Commission, appealing the Board of Review on the assessment of Riverwalk's property. The form lists the Assessor's original fair market value of the improvement at $5,121,200 and the revised fair market value by the Board of Review at $3,000,000.
- A Form 3507 A Claim for Refund of Taxes Paid in Error (undated) indicating that the amount of taxes paid in error on January 17, 2012 was $368,648.22.
- A March 15, 2013 letter from the Assessor to Riverwalk advising that an assessment appeal for the 2013 tax year had been submitted to the Tax Commission and enclosing the Tax Commission 3103.A form and the Assessor's plea document.- A November 11, 2013 letter from the Assessor to Riverwalk advising that an assessment appeal for the 2014 tax year had been submitted to the Commission and enclosing the Commission 3103.A form and the Assessor's plea document.
- A 2014 Appeal to the Tax Commission summarizing the Assessor's fair market value, calculated at $84.13 per square foot (based on comparable sales data and the Board of Review's appraisal) and requesting that the Board of Review reject the request to lower the assessment and to uphold the Commission's 2014 assessment of $2,284,450 on the land and $768,180 on the improvements.
- A July 29, 2014 Tax Commission Decision following a June 3, 2014 hearing at which the Assessor challenged the value of Riverwalk's property; the Tax Commission agreed with the Assessor (in its Form 3103.A, above) that the fair market value for the improvements was $5,121,000 for the 2013 tax year.
- An October 14, 2014 letter from Scott Sonnier, attorney for Riverwalk, to the Commission, requesting a refund because the "taxes were paid on property that was erroneously assessed to the taxpayer." Attached as exhibits to this letter are:
- A City of New Orleans ad valorem tax bill for the year 2012 for $395,345.70;
- A copy of a January 17, 2012 check from Riverwalk paying the City the sum of $395,345.70; and
- A copy of the Orleans Parish Assessor's Office valuation summary for the Riverwalk's property for 2012 through 2014 and reflecting that the assessed value of the land for 2013 and 2014 is $0 (and reflecting a valuation of the land in 2012 of $2,284,450).
- A February 6, 2015 letter from the Assessor to the Commission regarding Riverwalk's request for a refund of the property taxes. The letter noted that the "taxpayer had consistently paid the taxes each year which included the land and building assessments because this allocation reduced the assessment of the building's valuation by 5%. After the property was sold in 2010 to the Howard Hughes Corporation, "[t]he practice of allocating the majority of the building value to the land assessment was obvious because it was common knowledge that the land along the riverfront ... is owned by the Port[,] a tax exempt agency." This resulted in a loss of tax revenue to Orleans Parish "because that portion of this commercial building value was only being assessed at 10% instead of the required 15%." The Assessor maintained that there had been no erroneous payment of taxes given the arrangement to allocate a "major portion of the building value to land" and because the payments by Riverwalk each year (on [its] $30,000,000 shopping center) were consensual. Attached as exhibits to this letter are:
- A Letter of Authorization executed by Riverwalk on August 12, 2011, by which Thomson Reuters (Property Tax Services) was appointed as Riverwalk's authorized representative "on all matters pertaining to ad valorem taxes;"
- An "Orleans Parish Board of Review Assessment Appeal Form BOR 3" filled out by T.J. Schoenemann, of Thomson Reuters on Riverwalk's behalf, appealing the assessment of the property at issue and requesting an assessment of $1,725,380 for the land and $158,670 for the improvements. The form contained in the record is undated (a handwritten date is contained on the form, but the copy is cut off and the date is incomplete); and
- A facsimile sent on September 20, 2011 to the then-Assessor for Orleans Parish, by which Mr. Schoenemann advised that the 2012 valuation of the assessment contained in tax bill number 103100121 was accepted with "withdrawal of the pending protest."
- A July 20, 2015 letter from the Commission to Riverwalk advising that, after a meeting on June 23, 2015, the Commission denied the request for a refund.
- The Commission's February 12, 2016 Order.

DISCUSSION

At the hearing on Riverwalk's Petition, the district court found that "there [was] a legal error in this case that the Tax Commission made by not considering the legality of the tax payment" which it concluded was "erroneous as a matter of law" and warranted Riverwalk's request for a refund.

This action was instituted pursuant to the provisions of La. R.S. 47:2132 which, under subpart A, authorizes "[a]ny person who has a claim against a political subdivision for ad valorem taxes erroneously paid into the funds of that political subdivision" to "present the claim to the Louisiana Tax Commission within three years of the date of the payment, in such form and together with such proof as the tax commission may require by its rules and regulations ...."

The Assessor contends that the Commission correctly denied Riverwalk's refund request for three reasons: (1) Riverwalk knew that it was not the owner of the land for which it voluntarily paid ad valorem taxes (because, he asserts, Riverwalk obtained a "favorable break on its overall ad valorem tax assessment"); (2) In 2012, Riverwalk challenged the assessment, but then withdrew its challenge; thus, Riverwalk did not pay the taxes erroneously nor under protest and, under La. R.S. 47:2132, relief may be obtained only when a taxpayer makes an erroneous payment; (3) Riverwalk did not meet its burden of proof to establish the erroneous payment of the taxes. The Assessor framed the issues for review by this Court as whether the Tax Commission's decision to deny the refund request is "[n]ot supported and sustainable by a preponderance of the evidence" (pursuant to La. R.S. 49:964 G), and whether Riverwalk is estopped from claiming a refund on equitable grounds, as the Tax Commission found.

Under the Louisiana Constitution, public property is exempt from taxation. See La. Const. Art. 7, § 21 ("In addition to the homestead exemption provided for in Section 20 of this Article, the following property ... shall be exempt from ad valorem taxation: (A) Public lands and other public property used for public purposes ....). It is under this constitutional provision that Riverwalk asserted that its payment was erroneous under La. R.S. 47:2132.

As Riverwalk acknowledges, the Louisiana Supreme Court has made clear that there are two challenges which may be made to property tax assessments. "One track encompasses challenges to the 'correctness of assessments' by the assessor, while the other track covers challenges to the legality of the tax levied." Gisclair v. Louisiana Tax Comm'n , 09-0007, p. 5 (La. 6/26/09), 16 So.3d 1132, 1135, citing Triangle Marine, Inc. v. Savoie , 95-2873, p. 3 (La. 10/15/96), 681 So.2d 937, 939. The Gisclair Court explained that "correctness challenges are directed at issues of regularity or correctness of the assessment, such as over-valuation and misdescription, while legality challenges are directed at issues involving claims that the assessment is void for radical defects that bring into question the existence of any valid assessment." Id. , 09-0007, 16 So.3d at 1136, citing Morgan's Louisiana & T.R. & S.S. Co. v. Pecot , 50 La. Ann. 737, 742-43, 23 So. 948, 950-51 (1898).

Thus, "under our jurisprudence, challenges to ad valorem property tax assessments are categorized as either challenges to the 'correctness of assessments' or challenges to the 'legality of assessments.' " Bass P'ship v. Gravolet , 12-0024, p. 16 (La. App. 4 Cir. 11/21/12), 105 So.3d 224, 234, writ denied , 12-2741 (La. 3/1/13), 108 So.3d 1176, quoting ANR Pipeline Co. v. Louisiana Tax Comm'n , 02-1479, p. 5 (La. 7/2/03), 851 So.2d 1145, 1148-1149.

As we recognized in Bass P'ship :

The nature of the challenge dictates the body in which our constitution grants jurisdiction to hear and resolve these disputes. Gisclair v. Louisiana Tax Comm'n , 09-0007, p. 5 (La. 6/26/09), 16 So.3d 1132, 1135.
The provision establishing the assessment correctness challenge is found in the Louisiana Constitution at Art. 7, § 18 E, which provides: "The correctness of assessments by the assessor shall be subject to review first by the parish governing authority, then by the Louisiana Tax Commission or its successor, and finally by the courts, all in accordance with procedures established by law." Under this provision, district courts in correctness challenges are merely granted appellate jurisdiction. ANR Pipeline , 02-4179, p. 6, 851 So.2d at 1149. However, pursuant to La. Const. Art. 7, § 3 and the interpreting jurisprudence, legality challenges are to be filed directly in the district court. Gisclair , 09-0007, p. 5, 16 So.3d at 1136 ; Triangle Marine , 95-2873, p. 4, 681 So.2d at 939 ; ANR Pipeline , 02-1479, p. 5, 851 So.2d at 1149.

Id. , 12-0024, pp. 16-17, 105 So.3d at 234. A correctness challenge, accordingly, seeks "to correct a value, no matter how erroneous that value may allegedly be, but does not seek to annul the assessment in toto" or one that "seeks to correct some aspect of the assessment." Id. , 12-0024, pp. 18-19, 105 So.3d at 234.

Conversely, "[a] challenge to the validity of a tax on exempt property is a challenge to the legality, not the correctness, of the tax." Triangle Marine , 95-2873, p. 6, 681 So.2d at 940. In Triangle Marine , vessel owners challenged the imposition of a tax on vessels on the basis that the tax was "illegal because their vessels enjoy a constitutional tax exemption." Id. , 95-2873, p. 5, 681 So.2d at 940 (emphasis supplied). The Court noted that the suit had properly been instituted "directly in district court pursuant to LSA-R.S. 47:2110 [which is] is the appropriate method for challenging a tax levy on exempt property." Id. , 95-2873, p. 6, 681 So.2d at 941. In reversing the lower courts' findings that the vessel owners had to first exhaust their administrative remedies under La. Const. art. 7, § 18 (E) before seeking a review in the district court (and later, the court of appeal), the Triangle Marine Court found that "[p]laintiffs properly proceeded in district court under LSA-R.S. 47:2110 to contest these taxes because a tax assessment on exempt property is illegal." Id. , 95-2873, p. 7, 681 So.2d at 941.

Importantly, in Triangle Marine , the Supreme Court noted that the vessel owners "properly instituted suit under LSA-R.S. 47:2110after tax payment under protest ." (emphasis added).

In this matter, while La. R.S. 47:2132 deals with the refund of taxes erroneously paid, and is the statute under which Riverwalk ostensibly filed this lawsuit, it is clear that the object of Riverwalk's action is not the refund of taxes erroneously paid, but a challenge to the validity of a tax on exempt property. As such, it is a legality challenge and Riverwalk improperly sought review of this assessment with the Tax Commission. The Tax Commission does not have jurisdiction to consider legality challenges; as noted, "[t]he correctness of assessments by the assessor shall be subject to review first by the parish governing authority, then by the Louisiana Tax Commission or its successor, and finally by the courts, all in accordance with procedures established by law." La. Const. art. 7, § 18 (E).

La. R.S. 47:2134, on the other hand, entitled "Suits to recover taxes paid under protest," recognizes the two distinct categories of challenges to ad valorem taxes. Subpart B concerns challenges to "the correctness of an assessment." Subpart C, however, concerns challenges to the legality of an assessment. It provides, in pertinent part, as follows:

C. (1) A person resisting the payment of an amount of ad valorem tax due or the enforcement of a provision of the ad valorem tax law and thereby intending to maintain a legality challenge shall timely pay the disputed amount due under protest to the officer or officers designated by law for the collection of the tax and shall give such officer or officers, notice at the time of payment of his intention to file suit for the recovery of the protested tax. The portion of the taxes that is paid by the taxpayer to the collecting officer or officers that is neither in dispute nor the subject of a suit contesting the legality of the assessment shall not be made subject to the protest. The taxpayer shall submit separate payments for the disputed amount of tax due and the amount that is not in dispute and not subject to the protest. Upon receipt of a notice, the protested amount shall be segregated and held by the collecting officer for a period of thirty days.
(2) A legality challenge suit must be filed within thirty days from the date of the protested payment. If a suit is timely filed contesting the legality of the tax or the enforcement of a provision of the tax law and seeking recovery of the tax, then that portion of the taxes paid that are in dispute shall be further deemed as paid under protest, and that amount shall be segregated and shall be further held pending the outcome of the suit. The portion of the taxes that is paid by the taxpayer to the collecting officer or officers that is neither in dispute nor the subject of a suit contesting the legality of the tax shall not be made subject to the protest.

La. R.S. 47:2134 (C) (emphasis added).

It is clear that Riverwalk initially challenged the valuation of the 2012 assessment and then withdrew that challenge, expressly accepting "the 2012 valuation of the assessment contained in tax bill number 103100121." It then sought a refund of the taxes it paid, claiming to have paid those taxes in error. While the record does not contain a dated copy of its request for a refund, in its Petition, Riverwalk indicates that the claim for a refund was made on October 20, 2014. Riverwalk maintains that the request for a refund was "timely." Indeed, a claim for taxes erroneously paid under La. R.S. 47:2132 (A) may be made "to the Louisiana Tax Commission within three years of the date of the payment." There is no jurisprudence defining the term "taxes erroneously paid." However, as we have found, this is not simply a case of an erroneous payment, but rather, a challenge as to the legality of the tax assessment.

Under La. R.S. 47:2134 C, a challenge to the legality of an ad valorem tax must pay the tax under protest and then file suit within thirty days of the date of the payment. The record contains no evidence that Riverwalk paid the tax at issue herein under protest. Moreover, it paid the tax in January, 2012 and its request for a refund was admittedly first made in October, 2014. Clearly, Riverwalk did not file its suit (after paying the tax under protest) within thirty days of its payment. Our decision is consistent with our limited jurisprudence on this issue. In Side by Side Redevelopment, Inc. v. Marshall , 09-1430, p. 3 (La. App. 4 Cir. 6/30/10), 43 So.3d 1059, 1061, a suit seeking a determination that a charitable organization should not owe taxes on its property, this Court recognized that "[t]o challenge the validity of a tax imposed by the City of New Orleans, the taxpayer must first pay the tax under protest .... Only the timely payment of the contested tax preserves the right to litigate the validity of the tax in court." The Court then found that the organization's "failure ... to timely pay the tax under protest prohibited the district court from hearing a challenge to the validity of that tax." Id. See also , Wright v. Cingular Real Estate Holdings of La., L.L.C. , 09-1825 (La. App. 1 Cir. 7/1/10), 2010 WL 2637907 at *3 ("if Cingular believed the 2003 tax assessment was erroneous, it could have paid the assessed amount 'under protest' and sought recovery of the payment").

CONCLUSION

Based on the foregoing, we find that the trial court erred in determining that Riverwalk is entitled to a refund of the taxes paid in 2012. We therefore reverse the trial court's judgment.

REVERSED

      The Port owns the land upon which Riverwalk's mall is located; Riverwalk owns the improvements and leases the land from the Port.

      The result of this judgment is that Riverwalk's total ad valorem tax liability for 2012 would be $25,697.48.

      The entity is listed as "N.O. Riverwalk Assoc. c/o The Riverwalk." The record contains no information as to whether this company and plaintiff-appellee, New Orleans Riverwalk Marketplace, LLC, are in fact the same entity. For purposes of this opinion, we assume that they are.

      Riverwalk contends that the standard of review is found within the Administrative Procedure Act, La. R.S. 49:950. Under La. R.S. 49:964 A(1), "a person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review ...." Review is obtained by instituting proceedings "by filing a petition in the district court of the parish in which the agency is located within thirty days after the transmittal of notice of the final decision by the agency[.]" La. R.S. 49:964 B. Subpart G provides for judicial review of the administrative body's ruling and allows the court to "affirm the decision of the agency or remand the case for further proceedings." It further allows the court to reverse or modify the decision or remand for further proceedings when certain conditions are found and the ruling reflects that "substantial rights... have been prejudiced."
      As discussed more fully herein, this suit was improperly classified as a suit to recover taxes erroneously paid, and as such, the Administrative Procedures Act, and its review process, are inapplicable.

      La. R.S. 47:2110 is now La. R.S. 47:2134. It was repealed and substantially reenacted by 2008 La. Acts, No. 819, § 1. It was amended in 2009 to add to subparts B and C separate provisions for a challenge to "the correctness of an assessment" and a "legality challenge."

      We note that there are several Attorney General Opinions applying La. R.S. 47:2132. For example, Op. Atty. Gen., No. 07-0228 (dated 9/4/07), dealt with the issue of the payment of taxes on property for which a homestead exemption had not been filed and for which the homeowner sought a refund of taxes "erroneously paid" (ultimately concluding that the three year period for a refund of taxes erroneously paid applied).