author: Gross, J. Ciklin, J.,

text:
    The WATERVIEW TOWERS CONDOMINIUM ASSOCIATION, INC., a Florida corporation not-for-profit, Laura Bennett, Helen Bossman, and Thomas J. O’Neill, individually, Appellants, v. CITY OF WEST PALM BEACH, a Florida Municipal Corporation, and Palm Harbor Hotel, LLC, a foreign limited liability company, Appellees.
    No. 4D16-2858
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, Robert Swee-tapple of Sweetapple, Broeker & Varkas, PL, Boca Raton, and John R. Eubanks, Jr. of Breton, Lynch, Eubanks & Suarez-Mu-rias, P.A., West Palm Beach, for appellants.
    K. Denise Haire and Douglas N. Year-gin, Office of the City Attorney, West Palm Beach, for appellee, City of West Palm Beach.
    Brucé S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, and Joseph Ianno, Jr. and Henry S. Wulf of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee, Palm Harbor Hotel, LLC.
   Gross, J.

We hold *that unit owners and a condominium association have standing to enforce . certain development restrictions contained in condominium documents, as defined in the declaration of condominium.

Overview

The property central to this litigation is owned by the City of West Palm Beach. It is bordered on the west side by Flagler Drive, on the east side by Lake Worth, on the north side by 5th Street, and on the south side by 1st Street.'

It is a single piece of property, divided into three parcels: R-l, C-l, and C-2. The parcels are aligned like this:

Palm Harbor Hotel, LLC (the “Hotel”) wants to build a hotel and parking garage on parcel C-2. The neighbors living in the condominium tower located on parcel R-l oppose the Hotel’s plans.

This action was brought by The Water-view Towers Condominium Association, Inc. and three individuals who own residential units in the condominium (collectively, the “Plaintiffs”) against the City and the Hotel.' The Plaintiffs asked the circuit court to declare that the Hotel’s plans violated development restrictions found in various documents.

Historical Background

In 1968, the City leased the parcel to the West Palm Beach Marina, Inc. for 99 years. In 1979, the City Commission passed Ordinance 1456-79 which permitted the City to amend the lease. The City, as lessor, and the Marina, as lessee, executed the “Consolidated and Amended Lease” (the “Lease”). Both parties to the Lease anticipated future development of the property. While a portion of the property was to be maintained as a marina, the remainder of the property could be used in almost any manner.

Article XXX, section 5 of the Lease is important because it contains two development restrictions the Plaintiffs seek to enforce in this action, the “View Restriction,” and the “Unanimity Provision.” The relevant language reads:

Art. XXX — Miscellaneous Provisions
It is further mutually covenanted and agreed by and between both of the parties hereto as follows:
Section 5. Lessee agrees that it will use good site planning and architectural design so that the buildings will fit into the character of the downtown area of West Palm Beach or enhance the same,-and retain the waterfront characteristics of the area. There are 1,573,35 feet of waterfront view, measured on a north-south line, -presently existing, of which Lessee agrees to retain open and free from building obstructions as viewed from Flagler Drive [62.82%]. All development of the Leasehold Premises herein shall be pursuant to a site plan to be approved by resolution or motion of the City Commission unanimously passed, and any modification, change or amendment thereto shall require a unanimous vote of approval of same by the City Commission of the City of West Palm.

Under Article XXXVI of the Lease, entitled “Condominium Provisions,” the parties agreed that the entire property would be submitted to condominium ownership in accordance with the Condominium Act. The plan for the “leasehold condominium” was to divide the property into a residential and a commercial portion. The residential portion would be further divided into 132 units, and the commercial portion would be divided into two units. The operation of both the residential and commercial portions would be conducted by the Association.

In addition to the development restrictions set forth above, the Plaintiffs sought a declaration that development of Unit C-2 is limited to a four-story building with surface parking only. The Plaintiffs’ argument relies on the following language found under Article XXXVI of the Lease:

... The Commercial Portion will include boat dockage facilities, a marina office with related facilities, and surface parking; additionally, a commercial building having approximately one hundred (Í00’) feet of frontage on Flagler Drive and not exceeding four (If) stones in height may be constructed on the Commercial Portion.

The following definitions found within the “Condominium Provisions” of the Lease are relevant to this appeal:

1. “Condominium Documents” means' in the aggregate the “Declaration” (as hereinafter defined), Articles, By-Laws, this Lease and all of the instruments and documents referred to therein.
q. “Lessee” means in the first instance West Palm Beach Marina, Inc....; and in the second instance upon [the Marina’s] assignment of the Lease ... to LRI, “Lessee” means LRI; and finally, after Submission and upon assignment of the First Unit, “Lessee” means the Unit Oivners.

One of the documents “referred to” by the Lease is a -site plan. In June of 1979, “Site Plan 7” was unanimously approved by the City -Commission. The Plaintiffs argue that language in Site Plan 7 imposes the same four-story height restriction as well as a square footage restriction on -the future development of Unit C-2. Site Plan 7 contains this “NOTE:”

THE COMMERCIAL STRUCTURE SHALL NOT EXCEED FOUR STORIES IN HEIGHT AND 20,000 Sq. Ft. IN AREA. THE COMMERCIAL STRUCTURE MAY BE LOCATED ANYWHERE SOUTH OF THIRD STREET, PROVIDED ITS LOCATION IS IN COMPLIANCE WITH THE CITY OF WEST PALM BEACH ZONING ORDINANCES. LESSEE MAY BUT IS NOT REQUIRED TO BUILD THE COMMERCIAL STRUCTURE. •

Shortly after the Lease was executed, it was -assigned by the Marina to Leisure Resorts, Inc. (“LRI”). In 1981, LRI established a condominium on the entire leased parcel by filing of the “Declaration of Condominium of The Waterview Towers, A Condominium” (the “Declaration”). The condominium, including residential and commercial units, was named “The Water-view Towers, A Condominium.”

■ Although: not attached to the Declaration, the Lease is referenced throughout the document and, significantly, the Lease and all documents referenced therein are included in the Declaration’s definition of the term “Condominium Documents:”

1. “Condominium Documents” means in the aggregate this Declaration, the Articles, By-Laws, the Lease and all of the instruments and documents referred to therein.

In addition to the development restrictions in the Lease (and its referenced documents), the'Plaintiffs sought a declaration that development of Unit C-2 is limited to a' single commercial building, not exceeding severity-five feet in' height, with no more than one-hundred feet of frontage along Flagler Drive. The Plaintiffs’ argument relies on the following language of the Declaration:

... The Commercial Unit, designated as “C-2” on the Survey shall contain parking facilities which maybe used as determined by the C-2 Commercial Unit Owner and the Developer reserves the right for and on behalf of the C-2 Commercial Unit Owner to construct a commercial building (“Commercial Structure”) within the C-2 Commercial Unit not exceeding seventy five (75) feet in height with approximately one hundred (100) feet of frontage on Flagler Drive.

More than 25 years after establishing the condominium, in 2007, LRI sold parcels C — 1 and C-2 to Leisure Resorts, LLC (“Leisure Resorts”). The parties executed a Warranty Leasehold Estate Deed and Partial Assignment of Lease Agreement which transferred all of LRI’s interest in parcels C-l and C-2, including “any and all remaining rights ... held by Grantor as ‘Developer’ under the Declaration and/or as the owner of the Units.”

Current Dispute

In 2009, the City and Leisure Resorts executed a Development Agreement recognizing Leisure Resorts’ intent to develop Unit C-2 to include a hotel and a parking garage (the “Development Agreement”). A diagram titled “Site Plan No. 8” was attached to the Development Agreement. The conceptual site plan had been approved by Resolution 239-07 in 2007 by the City Commission.

In the Development Agreement, the City gave “conceptual approval” to development of Unit C-2 in accordance with Site Plan No. 8. Both parties agreed to “work cooperatively for a period of up to three (3) years ... towards a revised site plan ... in lieu of [Site Plan No. 8].”

In the Development Agreement, the City expressly waived any right it may have had as Lessor to enforce the provisions of Article XXX, section 5 of the Lease “with respect to the Approved Site Plan [Site Plan No. 8] or any Revised Site Plan.” The City and Leisure Resorts also agreed that the Development Agreement did not “constitute an amendment or modification of any of the terms and provisions of the Consolidated Lease,” and none of the Condominium Documents were modified or amended to reflect the new development plan for Unit C-2.

After executing the Development Agreement, Leisure Resorts subleased Unit C-2 to the Hotel. The sublease is subject to the terms and conditions of the Lease, the Declaration, and the Development Agreement.

Sometime in 2013, the Hotel applied to rezone Unit C-2 so it could build an eight-story hotel with an attached three story parking garage. The City approved the rezoning.

Because of their opposition to the proposed development of Unit C-2 (which had been a parking lot since the early 1980’s), the Association and two R-l unit owners filed a petition for writ of certiorari in the circuit court. A three judge panel ruled that the petitioners were denied due process by the City and quashed the 2014 Development Orders. The circuit court appellate panel held that the Association and R-l Unit Owners had standing to participate in the “quasi-judicial” zoning proceedings due to their special relationship with the land.

In this case, the Plaintiffs sought a declaration that the Association and Unit Owners have the right to enforce the development restrictions found in the referenced documents and that future development of Unit C-2 is limited to the building of:

1. A single commercial office building;
2. Not exceeding four (4) stories;
3. Not exceeding ... [75 feet] in height;
4. Not exceeding ... [100 feet] of total frontage on Flagler Drive;
5. All of which may only utilize surface parking.

The Plaintiffs further sought a declaration that “any proposed construction on the C-2 Upland Parcel ... must be unanimously approved by the City Commission.” As an affirmative defense,' both' the’ City and the Hotel averred that the Plaintiffs lacked standing to enforce the development restrictions.

After a non-jury trial, the circuit court ultimately issued an aménded final judgment, containing the following rulings:

Plaintiffs lack standing to enforce the subject lease against the Commercial Unit Owner. Only the CITY has standing to enforce, modify or waive provisions of the Lease with respect to the Commercial Portion, including the ability to waive the provisions of Article XXX, Section 5 of the Lease.
Plaintiffs’ standing to enforce the Declaration against the Commercial Portion is limited to provisions regarding the height and width of the commercial building which may be located on the C-2 Commercial Unit as set forth in Arti-ele V, paragraph D of the Declaration. There are no other restrictive covenants applicable to the Commercial Units, specifically the C-2 Commercial Unit.
Development of the C-2 Commercial Unit is not limited to a single four (4) story office building containing a maximum of 20,000 square feet.
The currently approved, development and use of the C-2 Commercial, Unit consists of a commercial structure. and parking facilities as shown on Site Plan No. 8, the provisions of which are not challengeable because the applicable statute of limitations to challenge Site Plan No. 8 has expired.
The Development Agreement is not a statutory development agreement requiring compliance with Chapter 163 and, further, any challenges to the Development Agreement and Site Plan No. 8 are barred, by the applicable Statute of Limitations.
The Association and the Residential Unit Owners do not have the right under the Lease to consent or approve any development plans for the Commercial Units. While Plaintiffs are permitted to participate as 'parties in quasi-judicial proceedings before the City Commission, they are not co-lessees of the Com-méreial Portion. They have a partial assignment of the Lease as to their units and an undivided portion of the common elements. The Commercial Units are not common elements of the Association.

This is the Plaintiffs’ appeal from the Amended Final Judgment.

The Plaintiffs Have Standing to Bring an Action Against Any Unit Owner Not Complying with the Condominium Documents, which include the Lease

We find that Article XXII of the Declaration grants standing to the Plaintiffs and that the Hotel and the City are bound by the Declaration.

The City’s interest in the property is subject to the provisions of the Declaration because, as a lessor, the City consented to its execution. Both parties to the Lease agreed “that a leasehold condominium shall be created pursuant to the [Condominium] Act .... ” The parties further agreed that upon .the recording of the Declaration, the “Condominium Provisions” found at Article XXXIV “shall supplement the Lease.”

By statute,

[a] person who joins in, or consents to the execution of, a declaration subjects his interest in the condominium property to the provisions of the declaration.

§ 718.104(6), Fla. Stat. (1981). Because the City expressly consented to the execution of the Declaration, the City’s interest ,in the property is subject to the provisions of the Declaration pursuant to section 718.104(6).

The Hotel and the City argue that the residential unit owners lack standing to enforce the Declaration against the commercial unit owners. We disagree and find the Declaration clear and unambiguous on this issue. The drafter of the Declaration was aware of the mixed-use development being created and was meticulous. He knew how to allocate rights and remedies to each category of Unit Owner being created. When.the drafter wanted to distinguish between Commercial and Residential Units and Commercial and Residential Unit Owners, he did so.

For instance, Exhibit C to the Declaration is entitled “Schedule of Shares.” It apportions the “percentage share in Common Elements, Common Expenses . and Common Surplus.” This Exhibit is referenced throughout the Declaration because it allocates to each unit owner their “share” of these items. Exhibit C lists all of the residential units and then lists the two commercial units, assigning shares to every unit. This shows that when he intended to delineate between the residential unit owners and the commercial unit owners, the drafter used precise language.

Á sécond example of the drafter’s delineation between the residential and commercial units is found regarding voting rights. Under the Declaration, membership in the Association is divided into three classes — residential, C-l, and C-2. Membership on the Board is divided into the same three classes.

A third example of the drafter distinguishing between the residential and commercial units is found under the section entitled “Description of Improvements.” There the drafter refers to the survey, differentiates , between the “Residential Portion” and the “Commercial Portion,” and explains that “Residential Limited Common Elements are reserved for the exclusive use of, the Residential Units.”

A fourth example of the drafter’s delineation between the residential and commercial units is found under the section entitled “Occupancy and Use Restrictions.” There, the drafter carefully spelled out the rules applicable to the “Residential Units” (addressed under subsection A) and the rules applicable to the “Commercial Units” (addressed under subsection B).

When the drafter reached Article XXII of the Declaration, entitled. “Remedies for Violation,” he did not delineate between Residential and Commercial Unit Owners. The Article provides:

Each Unit Owner shall be governed by and shall--comply with the Act, all of the Condominium Documents and all amendments to the Condominium Documents. Failure to do so shall entitle the Association, any Unit Owner, [or Mortgagee] to bring an action for injunctive relief,-damages or both, and such parties shall have all other rights and remedies which may be available at law or in equity.

The Hotel is bound as the “Unit Owner” of Unit C-2. Under the quoted Article, the Hotel “shall comply” with “all of the Condominium Documents.” By definition in' the Declaration,'one of the Condominium Documents is the Lease. The second sentence quoted above gives both the Association and any Unit Owner the right to bring an action against a noncomplying unit owner. Again, the language used is clear and unambiguous. This paragraph of the Declaration bestows standing on the Association and each Unit Owner whenever any other Unit Owner fails to comply with the Condominium Documents.

Under the express language of the Declaration, any Unit Owner and the Association, may bring an action when another Unit Owner violates the Lease (a Condominium Document). We find the circuit court erred when it made the blanket declaration that “Plaintiffs lack standing to enforce the subject lease against the Commercial Unit Owner” and that “only the City has standing' to enforce, modify or waive provisions of the Lease with respect to the Commercial Portion.”

The Unit Owners Have Standing as Co-lessees and Grantees from a Common Grantor to Enforce the Restrictive Covenants Found in the Lease against the Owner of Unit C-2

Under-the Lease, the City is the lessor and both the commercial and residential unit owners are lessees. The Lease defines • “Lessee” as “the Unit Owners” “upon the assignment of the First Unit.”

Each residential unit owner received a “partial assignment” of the Lease. Under the partial assignments, the unit owners were referred to as “Grantees,” and each grantee assumed and accepted from the grantor “the leasehold rights and obligations” enumerated in the partial assignment. Each grantee was obligated to pay his portion of the rent and operating expenses due under the Lease and received certain “leasehold rights.”

The residential unit owners seek to use their status as “co-lessees” to enforce building restrictions found in the Lease against the owner of Unit C-2, a co-lessee. The provisions the unit owners seek to enforce are:

1. The View Restriction and the Unanimity Provision contained in Article XXX, Section 5,
2. The Four-Story Height and Surface Parking Restrictions contained in Article XXXVI.
3. The 20,000 Square Footage Restriction found in Site Plan 7 incorporated into the Lease at Article XXX, section 5.

These building restrictions are restrictive covenants, “equitable rights arising out of the contractual relationship between and among the,- property owners.” Cudjoe Gardens Property Owners Ass’n, Inc. v. Payne, 779 So.2d 598, 598-99 (Fla. 3d DCA 2001).

While covenants restraining the free use of realty are not favored, “in order to provide the fullest liberty of contract and the widest latitude possible in disposition of one’s property, restrictive covenants are enforced so long as they are not contrary to public policy, do not contravene any statutory or constitutional provisions, and so long as the intention is clear and the restraint is within reasonable bounds.” Hagan v. Sabal Palms, 186 So.2d 302, 308-09 (Fla. 2d DCA 1966).

: Restrictive covenants may be enforced ’ by grantees among or between themselves where the grantees obtained their property from a common grantor and the restrictive covenants were placed in the transferring instrument as part of “a general plan of deyelopmént or improvement,” or a “general building scheme.” Id. at 307. ‘Whether restrictions in deeds are part of a general scheme is to be determined by the intention of the parties, as gathered from the words used, interpreted in the light of all the circumstances and the pertinent facts known to the parties.” Id.

Where there is no general building scheme, a restrictive covenant can be enforced between grantees inter sese where the covenant provides mutual or reciprocal benefits to the grantees. Rea v. Brandt, 467 So.2d 368 (Fla. 2d DCA 1985).

Basically, the right to enforce a restrictive covenant requires proof that the covenant was made for the benefit of the party seeking to enforce it. Osius v. Barton, 109 Fla. 556, 147 So. 862 (Fla. 1933). A subsequent grantee who seeks to enforce a restrictive covenant created by a common grantor against another subsequent grantee of a separate parcel of realty must show that the covenant was intended to apply to both parcels. Osius.

Id. at 369.

Even where there is no general building scheme and no reciprocal benefit among grantees, a restrictive covenant may be enforced by one neighbor against another where the restriction is found to be a negative easement or equitable servitude on the land. See Fiore v. Hilliker, 993 So.2d 1050 (Fla. 2d DCA 2008) (finding waterfront lot owner could be prevented from blocking view of adjacent owner by a negative easement created by the common grantor).

Here, the restrictive covenants imposed by the Lease on Unit C-2 are enforceable by the unit owners inter sese because (1) they were part of a general building scheme; and (2) the restrictions provided mutual and reciprocal benefits to all of the unit owners.'

The general building scheme is revealed by the unambiguous language of the Lease. The parties agreed that the property would be developed as a single mixed-use condominium. The entire condominium was to be developed pursuant to a “site plan” that had to be unanimously approved by the City Commission. The developer/lessee agreed to “maintain the character of a marina on a portion of the property” and “use good site planning and architectural design so that the buildings will fit into the character of the downtown area of West Palm Beach or enhance the same, and retain the waterfront characteristics of the area.” The developer/lessee further agreed to “retain open and free from building obstructions” sixty-two percent of the “waterfront view.”

This general building scheme contemplated a mixed-use development where all unit owners would benefit from the presence of the marina, the view, and the unique waterfront character of the area.

“Building restrictions imposed by a grantor on lots, being evidently for the benefit, not only of the grantor, but also of his grantees and subsequent successors in title, the burden, as well as the benefit, of the restrictions is an incident to ownership of the lots, because in a neighborhood scheme the burden follows the benefit.” Hagan, 186 So.2d at 307. The development restrictions found in the Lease, drafted to further the general building scheme, are enforceable by each of the unit owners among or between themselves. Id. at 308. Equity does not permit the owner of unit C-2, which has benefitted from the general building scheme, to disregard the restrictions that bind the other unit owners simply because unit C-2 permits a commercial use.

Similarly the restrictive covenants are enforceable by the residential unit owners because they were imposed for the benefit of all the unit owners. Building restrictions have been held to be enforceable by neighbors on the adjacent property. See Rea, 467 So.2d 368; Palm Point Property Owners’ Ass’n of Charlotte Cty., Inc. v. Pisarski, 626 So.2d 195 (Fla. 1993).

In Rea, the restrictive covenant stated “no water lot shall have a fence.” When one property owner sought to enforce the covenant against an adjacent owner, the court found that the restriction was “clearly intended to benefit and burden more than a single water lot. The restriction was in the chain of title or deed of each property. Thus, there was a mutual and reciprocal beneficial interest running to the adjacent parcels held by appellants and appellees.” Rea, 467 So.2d at 370 (finding appellants in violation of the restrictive covenant and directing them to remove their fence).

In Palm Point, an association sought to enjoin a lot owner from violating deed restrictions (building a pool, stem wall, and dock). While the supreme court found that the association lacked standing because the covenants were not made for its benefit, the court noted that individual property owners “clearly have standing to enforce the covenants.” Id. at 198 (emphasis added) (affirming the Second District’s finding that “any one” of the individual property owners “could sue to enforce the restrictions at issue in this case.” Palm Point Property Owners’ Ass’n of Charlotte Cty., Inc. v. Pisarski, 608 So.2d 537, 538 (Fla. 2d DCA 1992)).

Here, restrictive covenants were imposed on the entire condominium; every unit was burdened by and benefited from the development restrictions. The view restriction enhanced the character of the condominium, inspiring its name: The Wa-terview Towers, A Condominium. The limit on the number of stories and the square footage restrictions further preserved the view while controlling the number of people and traffic on the parcel. The unanimity provision helped protect the general building scheme from a change in the political winds.

In sum, each of the restrictions which the residential unit owners, as co-lessees, seek to enforce on Unit C-2 benefitted the entire condominium. Under Osius and its progeny, the development restrictions are enforceable by each of the grantees (unit owners) from the common grantor (the City).

The Association Has Standing Under The Condominium Act And Florida Rule Of Civil Procedure 1.221

The Condominium Act provides that an association may institute an action “in its name on behalf of all unit owners concerning matters of common interest to most or all unit owners.” § 718.111(3), Fla. Stat. (2014). Similarly, Rule 1.221 provides:

[A] condominium association ... may institute ... actions or hearings in its behalf on behalf of all association members concerning matters of common interest to the members, including, but not limited to: (1) the common property, area, or elements ....

Fla. R. Civ. P. 1.221.

“This court has recognized that an association may sue and be sued as the representative of condominium unit owners in an action to resolve a controversy of common interest to all units.” Four Jay’s Const. Inc. v. Marina at Bluffs Condo. Ass’n, Inc., 846 So.2d 555, 557 (Fla. 4th DCA 2003); see generally Homeowner’s Ass’n of Overlook, Inc. v. Seabrooke Homeowners’ Ass’n, Inc., 62 So.3d 667 (Fla. 2d DCA 2011).

Under the Declaration, the Association is responsible for the operation of the entire condominium. The commercial parcels are part of the condominium. While the commercial parcels are not “common elements,” because they are part of the condominium,, they are part of the “common property” and the “common area.”

An aerial view of the property reveals that the unit owners share points of ingress and .egress off Flagler Drive. In addition, the residents’ pool and a portion of the marina directly abut Unit C-2. Any structure on C-2 will affect the use and enjoyment of the entire condominium property (including light, view, and noise). For these reasons, development of Unit C-2 concerns a matter of “common interest” to members of the Association. ,

Because Unit C-2 is part of the common property, and because development of the common property involves matters of common interest to members of the Association, the Association had standing under the Condominium Act and Florida Rule of Civil Procedure 1.221 to pursue this action.

Development Restrictions Limit the Future Development of Unit C-2

1.Development Restrictions in the Declaration Run . With the Land.

By statute, “All provisions of the declaration are enforceable equitable servi-tudes, run with the land, and are effective until the condominium is terminated.” § 718.104(7), Fla. Stat. (1981).

By their Second Amended Complaint, the Plaintiffs sought a declaration that development on Unit C-2 was limited to a single commercial building, not exceeding 75 feet in height, and not exceeding 100 feet of total frontage on Flagler Drive — all development restrictions found in the Declaration. The City and the Hotel concede that they were bound by these restrictive covenants.

The trial court granted the Plaintiffs’ prayer for declaratory relief in part, finding there were enforceable restrictive covenants in the Declaration regarding the height and width of the commercial building. However, the order went too far by finding that there are “no other restrictive covenants applicable” to Unit C-2 and that the only restrictive covenants enforceable by any of the Plaintiffs are those regarding “the height and width of the commercial building.” This was error.

The trial court was not asked to scour the Declaration for restrictive covenants enforceable by the Plaintiffs, Indeed, there are at least three additional restrictive covenants found in the Declaration that are enforceable by the Plaintiffs:

1. The Association would have standing to enforce the requirement that Unit C-2 “contain parking facilities.”
2. The Association would have standing to establish and enforce rules and regulations regarding easements and rights of way crossing Unit C-2.
3. The Association and Unit Owners would have standing to enforce the requirement that the C-2 Unit Owner conduct a lawful commercial enterprise,

The only restrictive covenants found in the Declaration that the Plaintiffs raised in this case are those with regard to height and width of the commercial building. Thus, we reverse the trial court’s order to remove all language that forecloses the Plaintiffs’ rights to enforce the restrictive covenants contained in the Declaration though not raised, in this litigation.

2. The Unit Owners are Entitled to . > Enforce Restrictive Covenants Contained in the Lease. .

As indicated above, the individual Plaintiffs have standing to enforce the restrictive covenants foimd in the Lease against the owner'of Unit C-2. The following development restrictions are affected by the conclusion reached in this section:

The trial court therefore erred when it found that “Development of the C-2 Commercial Unit is not limited to a single four (4) story office building containing a maximum of 20,000' square feet.”

3. Because the Lease and Declaration are Ambiguous on the Issue of Two Commercial Buildings on Unit C-2, the Documents Cannot be Read to Preclude a Parking Garage.

The Plaintiffs argue that only one commercial building can be built on Unit C-2 and-because of this “one building” restriction, a parking garage cannot be built along.with a hotel. The Hotel and the City maintain that in addition to a commercial building, .a “parking facility” may also be placed on Unit C-2, and that the “parking facility” may be a multi-level garage. . •

The relevant language reads:

' “Restrictive covenants are not favored and are to be strictly construed in favor of the free and unrestricted use of real property.” Wilson v. Rex Quality Corp., 839 So.2d 928, 930 (Fla. 2d DCA 2003). “Any doubt as to the meaning of the words used must be resolved against those seeking enforcement.” Id.

The documents do not specify a limitation on the nature of the potential parking. A “parking facility” is a broad term that includes structures like a garage. The Lease’s reference to “surface parking” does not mean that all parking had to be surface parking. Given the strict construction imposed on restrictive covenants, the ambiguous tension between “parking facilities” and “surface parking” in the Declaration and the Lease supports the position of the Hotel and the City on this issue.

4. The Trial Court Erroneously Found That Site Plan No. 8 Is The “Currently Approved Development.

Plaintiffs argue that the trial court’s holdings regarding Site Plan No. 8 were erroneous. The trial court held:

The currently approved development and use of the C-2 Commercial Unit consists of a commercial structure and parking facilities as shown on Site Plan No. 8, the provisions of which are not challengeable because the applicable statute of limitations to challenge Site Plan No, 8 has expired.

“Site Plan No. 8,” however, was merely a “conceptual plan” needing additional governmental approvals to become final.

The “conceptual site plan” was approved by the City Commission “in its capacity as the land owner” — not in its governmental capacity. The Resolution approving the conceptual site plan states that the plan is “deemed to be ‘Site Plan No. 8’ under the Marina Lease.” Although the Lease’s Unanimity Provision was satisfied as evidenced by Resolution 239-07, the “conceptual site plan” attached to the Resolution still needed governmental and regulatory approvals and permits.

The Ordinances and Resolutions in evidence do not establish that the conceptual site plan ever received the requisite governmental approval. Thus, while Site Plan No. 8 is the currently-approved “site plan” under the Lease, the trial court’s holding that it is the “currently approved development and use of the C-2 Commercial Unit” was too broad.

For these reasons, we reverse the Amended Final Judgment and remand to the circuit court for proceedings consistent with this opinion.

Klingensmith, J., concurs. Ciklin, J., dissents with opinion.

Ciklin, J.,

dissenting.

I respectfully dissent.

The plaintiffs below are not lessees of the commercial portion of the subject plat and do not have standing to take independent legal action to enforce the underlying lease.

The 1981 Declaration of Condominium does not grant or authorize the plaintiffs to enforce any restrictions in the Lease particularly because the Declaration clearly delineates between the “Residential Portion” and “Commercial Portion” of the property and Article XII. B. provides that the commercial lessees “may conduct any commercial enterprises on the Commercial Portion to the extent permitted by law and the Lease” and that “[njothing contained in this Declaration shall limit the right of the Commercial Unit Owners or their assigns, lessees, or licensees to conduct commercial enterprises on the Commercial Portion.”

Clearly, the interplay between Article XIX, section 1, Article XXII, and Article XXX of the lease contemplates multiple uses of the property and even permits commercial lessees to change uses and site plans provided that the City’s duly elected policy makers — in a quasi-judicial setting — exercise their discretion to permit such changes. As a historical matter of fact, the 2009 Development Agreement between the City and Leisure Resorts, LLC (Palm Harbor’s sublessor) modified the lease requirements of Article XXX, section 5 to actually require the City Commission’s unanimous consent of any changes to the site plan — again, after a full quasi-judicial hearing before the West Palm Beach City Commission.

Nothing in the Declaration of Condominium or the laws of the State of Florida supports the notion that the plaintiffs have standing to enforce, modify, waive or contest provisions of the Lease with respect to the Commercial Portion. Nor do they have standing under the condominium documents to oversee or challenge use of the property approved by the City in its proprietary capacity.

Ultimately, of course, all power rests with the plaintiffs through the power of the ballot box, but until that time, the duly elected members of the West Palm Beach City Commission have the unbridled discretion to make all decisions pertaining to the commercial portion of the subject property.

The plaintiffs assert that the “Amended Final Judgment is inconsistent” because it “provides standing” ... to enforce .., restrictions ... on the frontage and height of any new structure on the [commercial] parcel,” while denying standing “to enforce other more detailed restrictions.” In fact, the Lease and Development Agreement addressed frontage and height and once the City Commission approved Site Plan 8 in June 2007, and incorporated it into the 2009 Development Agreement, the issues of height and frontage under the lease were resolved. (The only remaining restriction on the development of the C-2 unit was the 100’ width and 75’ height size limitation contained in Article V.D. of the Declaration).

In my opinion, the trial court properly found that the 2009 Development Agreement was not governed by Chapter 163 and, notwithstanding that judicial determination, the time to challenge the 2009 Development Agreement, including Site Plan 8, has expired in any case.

I would affirm.

      . The marina, parcel C-l, was the subject of City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, 714 So.2d 1060 (Fla. 4th DCA 1998), approved, 746 So.2d 1085 (Fla, 1999). That case held that the City’s ownership interest in parcel C-1 extended only to the "land immediately beneath the four piers, referred to by the trial court as the 'footprint' of the piers.” Id. at 1066.

      . All emphases supplied unless otherwise noted,

      . We note that Article XXX, section 5 includes both the View Restriction and the Unanimity Provision set forth above.

      . The Hotel is bound by the sublease from Leisure Resorts.

      . This argument also supports the Plaintiffs’ standing under Florida Statutes section 718.303(1) (2016) (allowing actions by both “the association or by a unit owner against ... a unit owner” who fails to "comply with [the] documents creating the association.”)


source: Caselaw Access Project

author: Damoorgian, J.

license: Public Domain

text:
    Catherine M. PILEGGI, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2780
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]

      Bruce L. Udolf of Bruce L. Udolf, PA, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.-
   Damoorgian, J.

Catherine Pileggi (“Defendant”) appeals her judgment of conviction for second degree murder. Defendant raises two arguments on appeal: (1) the trial court erred in denying her motion for judgment of acquittal; and (2) she was denied due process by not being given the opportunity to perform an independent autopsy. The State cross-appeals, arguing that in the event of reversal, the court improperly denied the State’s request to limit the jury instruction on the justifiable use of deadly force.' We affirm Defendant’s conviction without further comment. Recognizing that our decision on Defendant’s appeal renders the State’s cross-appeal moot, we nonetheless address the State’s contention that the justifiable use of deadly force instruction as given was wrong.

Defendant was charged with the murder of her longtime boyfriend. At'trial, Defendant admitted that she shot and stabbed the Victim, but claimed that she-was a battered woman and did so in self-defense. Both-sides presented substantial evidence to support their respective positions. Because self-defense was an issue, when it came time to charge the jury, the court read the following instruction which was modeled after Standard Jury Instruction 3.6(f):

An issue in this case is whether the defendant acted in self-defense.
It is a defense to .the crime of murder in the. second degree and to the lesser included crime of manslaughter if the actions of [Defendant] constituted the justifiable use of deadly force.
Deadly force means forcé likely to cause 'death or great bodily harm.
The use of deadly force is justifiable if the defendant reasonably believed that Such force is necessary to prevent imminent death or great bodily harm to her while resisting:
1) Another’s attempt to murder her; or
2) Any attempt to commit manslaughter or aggravated assault upon her; or
3) Aiiy attempt to commit manslaughter or aggravated assault upon or in any dwelling occupied by her,
[Defendant] was justified in'using deadly force if she reasonably believed that such force was necessary to prevent imminent death' or great bodily harm to herself or the imminent commission of a forcible felony such as first degree murder or second degree murder or manslaughter against her.
If [Defendant] was not otherwise engaged in unlawful activity and was .in a place she had a right to be, then she had no duty to retreat and had the right to stand her ground.

This instruction was based, in part, on the wording of section 782.02 of the Florida Statutes which provides that:

The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which such person' shall be.

§ 782.02, Fla. Stat. (2010).

It was also based, in part, on the “Stand Your Ground" law. As it read in 2010, section 776.012 of Florida’s Stand Your Ground law stated, in pertinent part:

[A] person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

§ 776.012, Fla. Stat. (2010).,

To that end, section 776.013(3) of the Stand Your Ground law stated;

A person who is not engaged in unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

§ 776.013(3), Fla. Stat. (2010).

The State does not dispute that;the standard jury instruction given accurately tracks the language of section 782.02 and the Stand Your Ground law, but argues that the inclusion of language tracking section 782,02 was incorrect. The State’s position is based on its argument that the Stand Your Ground law “revised the subject matter’’ of section 782.02 and in doing só, “implicitly” replaced and repealed section 782.02. Specifically, the State argues that section ■ 782.02 is “positively repugnant” with the Stand Your Ground law because section 782.02 does not contain the adjective “imminent” when referencing the threat to the person using self-defense nor does it require a “forcible felony” as referenced in the Stand Your Ground law. We disagree.

It is well settled that “repeal of a statute by implication is not favored and will be upheld only where irreconcilable conflict between the later statute and earlier statute shows legislative intent to repeal.” Town of Indian River Shores v. Richey, 348 So.2d 1, 2 (Fla. 1977). The Stand Your Ground law essentially establishes that a person has no duty to retreat and may use deadly force if he or she reasonably believes deadly force is necessary. § 776.012, Fla. Stat. (2010); § 776.013(3), Fla. Stat. (2010). Section 782.02, in turn, echoes the reasonableness element of Stand Your Ground Law by providing that the use of deadly force is justified “when a person is resisting any attempt to murder such person or to commit any felony upon him or her.” § 782.02, Fla. Stat. (2010).

We hold that the two. statutes are not irreconcilable and, indeed, compliment each other. Our holding is based on the well-established principle that it is reasonable for a person subject to a felonious attack to believe deadly force is necessary to stop oneself from, being killed or prevent serious bodily injury. Our conclusion that there is no conflict in these laws has been tacitly recognized by courts considering the adequacy of standard.instruction 3.6(f). See Cruz v. State, 189 So.3d 822, 831 (Fla. 4th DCA 2015) (holding that “the standard instruction on the justifiable use of deadly force is a correct statement of the law”); Wyche v. State, 170 So.3d 898, 905 (Fla. 3d DCA 2015) (“Jury Instruction 3.6(f) is an accurate statement of the law on the use of deadly force, and there is no conflict between any of the sections contained in Chapter 776 or any conflict within Jury Instruction 3.6(f).”). Accordingly, the court did not err in giving the standard jury instruction on the justifiable use of deadly force.

Affirmed.

Conner and Forst, JJ., concur.


author: Kuntz, J.

text:
    Pamela B. STUART, individually and as Trustee of The J. Raymond Stuart Revocable Trust dated January 2, 1990, as amended, and the Marital Deduction Trust and the Non-Marital Deduction Trust created thereunder, Appellant, v. Catherine S. RYAN and Deborah A. Stuart, as Beneficiaries of The J. Raymond Stuart Revocable Trust dated January 2, 1990, as amended, and the Marital Deduction Trust and the Non-Marital Deduction Trust created thereunder, Appellees.
    No. 4D16-3921
    District Court of Appeal of Florida, Fourth District.
    [November 29, 2017]

      Pamela B. Stuart, Vero Beach, pro se.
    David P. Hathaway of Dean, Mead, Eg-erton, Bloodworth, Capouano & Bozarth, P.A., Orlando, for appellees.
   Kuntz, J.

Pamela Stuart appeals the court’s order approving a plan of distribution for her father’s estate. Ms. Stuart argues the court erred when it determined that, while she qualified for the exemptions our state constitution provides to residents over their homestead, her wrongful acts as trustee of the estate required the imposition of an equitable lien against her homestead interest. We agree the equitable lien would have been improper if the properties were, in fact, her homestead.. However, here, neither property was Ms. Stuart’s homestead. Therefore, we affirm.

Florida’s homestead exemption is robust, and the Florida Constitution provides that “[t]here shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon ... the following property owned by a natural person ... (1) a homestead.” Art. X, § 4(a)(1), Fla. Const. Pursuant to our constitution, this homestead protection can only be breached in limited situations: “(1) government entities with a tax lien or assessment on the property; (2) banks or other lenders with a mortgage on the property which originated from the purchase of the property; and (3) creditors with liens on the property which originated from work or repair performed on the property.” Art. X, § 4(a), Fla. Const.

We are required to liberally apply the homestead exemption and strictly construe the exceptions. Butterworth v. Caggiano, 605 So.2d 56, 58, 61 (Fla. 1992) (citations omitted). Therefore, the availability of exceptions not found in the constitution is questionable. However, it is true that, as we recently recognized, our supreme court created a fourth exception for alimony creditors. See Spector v. Spector, 226 So.3d 256, 259 (Fla. 4th DCA 2017) (citing Anderson v. Anderson, 44 So.2d 652 (Fla. 1950)). And, what appear to be other exceptions can be found in various cases throughout our state’s history. See, e.g., Caggiano, 605 So.2d at 60-61 n.5. But, as the court explained in Caggiano, each of those situations is factually distinct and nearly all involve application of the homestead exemption in a manner that complies with the plain language of our constitution. Id. (“Most of those cases involve equitable liens' that were imposed where proceeds from fraud or reprehensible conduct were used to invest in, purchase, or improve the homestead. .. -. Other relevant cases cited involve situations where an equitable lien was necessary to secure to an owner the benefit of his or her interest in the property.”). The court’s skepticism regarding the availability of additional exceptions is not surprising, as both the legislature and the courts are powerless to create exceptions to Florida’s homestead exemption not found in our constitution. Id. at 61.

Therefore,'we would limit the exceptions to the constitutional homestead exemption to those specifically stated in the Florida Constitution and, because'we are compelled to do so, those specifically recognized by the Florida Supreme Court. See, e.g. Palm Beach Sav. & Loan Ass’n, F.S.A. v. Fishbein, 619 So.2d 267, 270 (Fla. 1993); see also Anderson, 44 So.2d at 652.

But, whether or not the court in this case had the authority to impose the equitable lien against Ms. Stuart's purported homestead interest in the property presumes it was her homestead. In this case, the- availability of an exception is unnecessary, as the court incorrectly determined the property was her homestead. Ms. Stuart testified that she had a Florida driver’s license, was registered to vote in Florida, and joined a community church in the area. While she testified that she “intended” to make her permanent residence in Florida at some point in the future, she also testified that she spent an average of only fifty-nine days in the state each year from 1998 through 2013. Her current permanent residence is in Washington, D.C., and she executed a reversible mortgage on that property as recently as 2013. Notably, she was simultaneously seeking to have the court determine two separate pieces of property in Florida as her homestead. See Art. VII, § 6(b), Fla. Const, (“Not more than one exemption shall be allowed by any individual or family unit ....”). Nevertheless, her principal residence being in the District of Columbia, Ms. Stuart was not entitled- to the benefits of Florida’s homestead protection.

The court erred in its' conclusion that due to Ms. Stuart’s wrongful actions an equitable lien could be imposed on her homestead-property. Instead, the equitable lien could be imposed because Ms, Stuart was not a permanent resident entitled to claim the benefits of the homestead exemption. Therefore, the court’s order is affirmed.

Affirmed.

Levine and Forst, JJ., concur.

      . We affirm all other issues raised on appeal without further comment.


author: Gerber, C.J.

text:
    Lisa Marie MACCI, P.A., Appellant, v. Stacy D. JAEGER and Robert M. Jaeger, D.O., Appellees.
    No. 4D16-2838
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2017]

      Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellant. ■
    Stacy D. Jaeger, Wellington, pro se.
    Rick Ruz, Coral Gables, for appellee Robert M. Jaeger.
   Gerber, C.J.

■The former wife’s attorney appeals from the circuit court’s final order essentially denying the attorney’s motion to enforce a retaining lien against the former husband’s undifferentiated arrearage of both alimony and child support held in the attorney’s trust account. We affirm.

The former wife’s attorney’s agreement to provide legal services in the former wife’s dissolution action stated, in pertinent part:

It is specifically agreed that the Law Firm shall have and is hereby granted all general, possessory and retaining liens and all equitable, special and attorney’s charging liens upon the client’s interest in any and all real, personal and intangible property within the jurisdiction of the court for any balance due, owing and unpaid and such lien or liens shall be related back to the date of this agreement and shall be superior in dignity to any other lien subsequent to the date hereof.

The former husband became delinquent on alimony and child support. The former wife’s attorney provided services towards obtaining the arrearage, which the former husband deposited into the former wife’s attorney’s trust account. The former husband’s deposit of the arrearage was not differentiated between the alimony and child support.

The former wife’s attorney then sought to enforce a retaining lien against the undifferentiated arrearage held in her trust account. However, a magistrate recommended that the circuit court order the former wife’s attorney-to release the undifferentiated arrearage to the former wife.

The former wife’s attorney filed an exception to the magistrate's report and recommendation. The attorney again sought to enforce a retaining lien against the undifferentiated arrearage held in her trust account.

The circuit court accepted the magistrate’s report and recommendation, and denied the former wife’s attorney’s motion to enforce the retaining lien. The circuit court’s ruling relied upon an earlier opinion which we issued in this dissolution action, holding that “a charging lien may not apply against an award of past due undifferentiated support accruing during the pendency of the divorce proceedings.” Jaeger v. Jaeger, 182 So.3d 697, 698 (Fla. 4th DCA 2015) (“Jaeger I”). The circuit court concluded that our holding on the charging lien also should apply to a retaining lien.

This appeal followed. The former wife’s attorney argues that the court erred in relying on our holding in Jaeger I, because no case prohibits an attorney from applying a retaining lien against undifferentiated support.

In response, the former wife and the former husband argue that the reasons for prohibiting an attorney from applying a charging lien against undifferentiated support also should prohibit an attorney from applying a retaining lien against undifferentiated support.

. We agree with the former wife and the former husband. In Jaeger I, we relied on Fuqua v. Fuqua, 88 Wash.2d 100, 558 P.2d 801 (1977), for the following reasoning, which remains applicable here:

We see no reason to allow assertion of a lien against support monies which are, after long delay, made available to children who have been deprived of the benefit of adequate support on a regular basis. The fact that such children may have managed to get along, though deprived of adequate support for some time, certainly does not compel the conclusion that those support monies are in any way less important to the welfare of the children involved than they were at the time awarded. Indeed, it is quite likely that the back support would be needed to satisfy indebtedness incurred by the custodian on behalf of the family during the period in which the family was without adequate support.
[T]he trial court concluded that those funds were commingled and not readily severable. Once having determined that an attorney’s lien could not be asserted against child support, the trial court concluded that the lien in question, even if purportedly limited in its application to maintenance alone, could not properly be asserted against any portion of the commingled fund. We find the trial court’s conclusion that this fund was not readily severable to be amply supported by the record. We also agree that an attorney’s lien may not be asserted against any portion of funds paid in satisfaction of a judgment which includes commingled child support.

Id. at 805-06.

Similar to our holding in Jaeger I, even if the retaining lien could have been enforced against that portion of the undifferentiated arrearage which constituted alimony, the magistrate also found that the award was for the necessities of life for the spouse. “A trial court is bound by a [magistrate’s] factual findings and recommendations unless they are clearly unsupported by the evidence and clearly erroneous.” Glaister v. Glaister, 137 So.3d 513, 516 (Fla. 4th DCA 2014) (citation omitted). Although the circuit court did not reject the magistrate’s findings of fact, competent substantial evidence supported the magistrate’s findings.

Based on the foregoing, we affirm the circuit court’s acceptance of the magistrate’s report and recommendation, and denial of the former wife’s attorney’s motion to enforce a retaining lien against the undifferentiated arrearage.

Affirmed.

May and Levine, JJ., concur.


author: Gross, J.

text:
    Marcia SUPRIA, Appellant, v. GOSHEN MORTGAGE, LLC, in substitution for the original Plaintiff Christiana Trust, a Division of Wilmington Savings Fund Society Fsb, as Trustee for Stanwich Mortgage Loan Trust, Series 2012-13, Appellee.
    No. 4D16-4356
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2017]

      Catherine A. Riggins, Miami, for appellant.
    Thomas Wade Young and Joseph B. Towne of Lender Legal Services, LLC, Orlando, for appellee.
   Gross, J.

In this mortgage foreclosure case, the underlying mortgage was passed around like the flu, giving rise to a complexity of ownership that frustrated the appellee’s attempts to demonstrate standing at trial. To the answer brief, the appellee attached a chart of the ownership lineage of the mortgage and note, with different types of arrows pointing in all directions, a valiant effort which demonstrated that the transfer history here defies pictorial representation.

On the original note, Cénterpointe Financial, Inc. is the lender. There is no blank indorsement from Centerpointe. There was an allonge purporting to effect a transfer, but the allonge was lost and not produced at trial. Appellee conceded at trial that it was not a holder of the note, but contended that it qualified as a non-holder in possession with the rights of a holder.

“A nonholder in possession may prove its right to enforce the note through: (1) evidence of an effective transfer; (2) proof of purchase of the debt; or (3) evidence of a valid assignment.” Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So.3d 884, 885 (Fla. 4th DCA 2016). “A nonholder in possession must account for its possession of the instrument by proving the transaction (or series of transactions) through which it acquired the note.” Id. (citing Murray v. HSBC Bank USA, 157 So.3d 355, 358 (Fla. 4th DCA 2015)).

Therefore, “[t)q prove standing as a nonholder in possession with the rights of a holder, the plaintiff must prove the chain- of transfers starting with' the first holder of the note.” PennyMac Corp. v. Frost, 214 So.3d 686, 689 (Fla. 4th DCA 2017): (citing Murray, 157 So.3d at 357-58). “Where the plaintiff ‘cannot prove.that [a transferor] had any right to enforce the note, it cannot dei-ive any right from, [the transferor] and is not a nonholder in possession of the instrument with the rights of a holder to enforce.’” PennyMac, 214 So.3d at 689 (quoting Murray, 157 So.3d at 359).

Here, the first assignment of the note was invalid, because nothing in evidence demonstrated that the assignor had the authority to transfer or assign an interest in the note. Similarly, a second assignment was also invalid because nothing demonstrated that the- assignor had an interest in the note that it could transfer. Among other problems, the third and fifth assignments transferred the mortgage, but not the note. The fourth assignment was infirm because of the problems with the earlier assignments.

One legal problem created by the third and fifth assignment is that a “mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment of the debt creates no right in the assignee.” Tilus v. Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2016). “ ‘[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt’ — not the other way around.” Peters v. Bank of N.Y. Mellon, 227 So.3d 175, 180 (Fla. 2d DCA 2017) (quoting Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938)). The oblique reference in the assignments of mortgage to “moneys now owing” was not sufficient to- transfer an interest in the note. See Jelic v. BAG Home Loans Servicing, LP, 178 So.3d 523, 525 (Fla. 4th DCA-2015).

Because appellee failed to establish its standing to foreclose, we reverse the final judgment and remand for the entry of judgment for the appellant.

May and Klíngensmith, JJ., concur.


author: Conner, J.

text:
    Waltoguy ANFRIANY and Mirelle Anfriany, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, in Trust FOR the REGISTERED HOLDERS OF ARGENT SECURITIES, INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-W4, Appellee.
    No. 4D16-4182
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2017]

      Brian K. Korte and Scott J. Wortman of Korte & Wortman, P.A., West Palm Beach, for appellants.
    Julissa Rodriguez and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, and C. Wade Bowden and Tyrone Adras of Greenberg Traurig, P.A., West Palm Beach, for appellee.
   Conner, J.

The appellants (collectively “Anfriany”) petitioned for certiorari to review the trial court’s order vacating their entitlement to attorney’s fees and costs in the underlying foreclosure action initiated by the appellee, Deutsche Bank National Trust (“the Bank”). This Court ordered that the case be treated as a final appeal pursuant to Florida Rules of Appellate Procedure 9.110 and 9.030(b)(1)(A).

Anfriany raises substantive issues regarding the application of judicial estoppel to bar his entitlement to fees and costs, and a procedural issue. Because the trial court applied the wrong standard in dismissing the entitlement based on judicial estoppel, we reverse and remand for further proceedings. We do not address the procedural issue raised.

Background

The Bank filed the underlying foreclosure action against Anfriany and others in 2008. The trial court granted the Bank’s voluntary dismissal without prejudice. In May 2011, Anfriany, through foreclosure counsel, moved to tax attorney’s fees and costs. In May 2012, the trial court granted the motion and ordered that Anfriany was entitled to reasonable attorney’s fees and costs (“the fee entitlement order”), and if the parties could not agree on the amount, Anfriany would set the matter for an evi-dentiary hearing.

In May 2013, Anfriany filed a Chapter 11 voluntary bankruptcy petition, represented by separate bankruptcy counsel. The petition included bankruptcy schedules and a statement, of financial affairs, which required Anfriany to disclose and list the value of “all personal property of the debtor of whatever kind,” including “contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims.” Anfriany did not list any assets in the contingent claims category. When An-friany amended his personal property schedule later that year, he again did not list such assets. In 2014, the bankruptcy court confirmed Anfriany’s reorganization plan based on his affidavits and disclosures. Subsequently, the bankruptcy court granted Anfriany’s motion to temporarily and administratively close the case. Because it was a Chapter 11 bankruptcy, Anfriany’s debts were not discharged under the approved reorganization plan.

In October 2015, Anfriany requested the trial court in the foreclosure action to hold an evidentiary hearing on his motion for attorney’s fees and costs. The purpose of the hearing was “to determine the reasonable amount of attorney’s fees and costs.”

In September 2016, the Bank moved to vacate the fee entitlement order. In the motion, the Bank asserted that Anfriany’s claim for attorney’s fees was barred by judicial estoppel because. Anfriany failed to disclose in his bankruptcy case his award of entitlement to attorney’s fees and costs, which was a contingent and unliquidated asset. The Bank argued that Anfriany therefore misled “the bankruptcy court and creditors to believe that he had fewer assets from which he could pay his creditors.” Thus, because Anfriany was taking inconsistent positions before the bankruptcy and foreclosure courts, the Bank asserted that judicial estoppel should bar his recovery.

In his written response to-the motion, Anfriany argued that judicial estoppel did not bar his claim for fees and costs. Anfria-ny asserted that, because a Chapter 11 bankruptcy petition does not discharge his debts, he did not deprive any creditors of their rights to collect amounts owed; thus, no parties were prejudiced by his omission. Additionally, Anfriany argued that he himself was unaware that attorney’s fees are legally classified- as an “asset” and his bankruptcy counsel was unaware of the attorney’s fees claim; thus, the omission was not an attempt to conceal assets.

A hearing was held on the Bank’s motion to vacate, and the trial court made the following conclusion:

Okay. Relying upon the case of Coastal Plains, which is 179 F.3d 197, which says, “Considering judicial estoppel for bankruptcy eases,” it doesn’t say Chapter 7. It says for bankruptcy cases. “The debtor’s failure to satisfy statutory disclosure is ‘inadvertent’ only when in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.”
That seems to very clearly apply to the facts of this case, so I believe the Court has no discretion. But under a common sense interpretation of that language, even if the Court had discretion, it seems like its discretion is limited.
Because the record states in this case that — well, the record does not indicate that the debtor lacked knowledge of the undisclosed claims. Clearly, the debtor had no motive for concealment, whether it’s inadvertent or not, it doesn’t carry any weight, and the Court is obligated’to find that judicial estoppel applies and bars the further pursuit of the attorney’s fees claims. . •

As such, the trial court granted the Bank’s motion.

Anfriany gave notice of appeal.

Appellate Analysis

We employ a mixed standard of review of a judicial estoppel claim. See Bueno v. Workman, 20 So.3d 993, 997 (Fla. 4th DCA 2009). “To the extent the trial court’s order is based on factual findings, [the appellate court] will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.” Id. (quoting Foreclosure FreeSearch, Inc. v. Sullivan, 12 So.3d 771, 774 (Fla. 4th DCA 2009)).

. Anfriany raises two substantive issues regarding the application of judicial estop-pel to bar his claim for fees and costs. First, he argues that the fee award was not his asset, but an asset of his attorney. Second, he argues the trial court improperly failed to consider the nature of the bankruptcy filing (reorganization of debt versus discharge of debt) and whether his failure to disclose was inadvertent. We affirm without discussion the first argument; we address the second argument.

“Judicial estoppel-is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial, including quasi-judicial, proceedings.” Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla. 2001) (quoting Smith v. Avatar Props., Inc., 714 So.2d 1103, 1107 (Fla. 5th DCA 1998)). This Court has explained that judicial estoppel “protects the integrity of the judicial process and prevents parties from making a mockery of justice by inconsistent pleadings and playing fast and loose with the courts.” Grau v. Provident Life & Accident Ins. Co., 899 So.2d 396, 400 (Fla. 4th. DCA 2005) (internal quotations and citations omitted). Judicial estoppel is imposed because “intentional self-contradiction is being used as a means of obtaining an unfair advantage in a forum provided for suitors seeking justice.” Scar- ano v. Cent. R. Co. of N.J., 203 F.2d 510, 513 (3d Cir. 1953) (emphasis added).

Our supreme court in Blumberg described the doctrine of judicial estoppel under Florida law as follows:

In order to work an estoppel, the position assumed in the former trial must have been successfully maintained. In proceedings terminating in a judgment, the positions must be clearly inconsistent, the parties must be the same and the same questions must be involved. So, the party claiming the estoppel must have been misled and have changed his position; and an estoppel is not raised by conduct of one party to a suit, unless by reason • thereof the other party has been so placed as to make it to act in reliance upon it unjust to him to allow ■that first party to subsequently change his position. There can be no estoppel where both parties are equally in possession of all the facts pertaining to. the matter relied on as m estoppel, where the conduct relied on to create the es-toppel was caused by the act of the party claiming the estoppel, or where the positions taken involved solely a ■ question of law.

Blumberg, 790 So.2d at 1066 (emphasis added) (quoting Chase & Co. v. Little, 116 Fla. 667, 156 So. 609, 610 (1934)).

In Grau, we noted that Blumberg “reshaped” and “broadened” the Florida doctrine of judicial estoppel announced in 1934 by the court in Chase & Co. in three ways. Grau, 899 So.2d at 399. The court: (1) recognized an exception to the general rule that there be mutuality of parties between an earlier proceeding and the later one in which judicial estoppel is applied; the court held that mutuality of the parties is not required where “special fairness and policy considerations” compel application of the doctrine; (2) “appears to have dispensed with the Chase & Co. requirement that the ‘party claiming the- estoppel must have been misled and have changed his position’ by the other party’s, conduct in the earlier suit’.’; and (3) held that a jury verdict .met the requirement of successfully maintaining a position in a. prior suit, even though no final judgment was entered. Id. at 399-400.

Grau described the post-Blumberg rule of judicial estoppel as follows:

A claim or position successfully maintained in a former action or judicial proceeding bars a party from making a completely inconsistent claim or taking a clearly, conflicting position in a subsequent action or judicial proceeding, to the prejudice of the adverse party, where the parties are the same in both actions, subject to the “special fairness and policy considerations” exception to the mutuality of parties requirement.

Id. at 400 (footnotes omitted). Additionally, we observed in Grau that “[t]he ‘prejudice’ component of judicial estoppel occurs when ‘the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing' party if not estopped.’ Id: at 400 n.3 (emphasis added) (quoting New Hampshire v. Maine, 532 U.S. 742, 751, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)); see also S. Fla. Coastal Elec., Inc. v. Treasures on Bay II Condo Ass’n, 89 So.3d 264, 269 (Fla. 3d DCA 2012) (stating that the positions must be “inherently inconsistent”).

In this case, the trial court erred by failing to properly apply the Florida doctrine of judicial estoppel. Instead, the trial court relied on In re Coastal Plains, Inc., 179 F.3d 197 (5th Cir. 1999), a Fifth Circuit case, to conclude that judicial estoppel applied. Below, both parties cited to Florida and federal cases discussing judicial estoppel, but failed to alert the trial court that “the elements of judicial estoppel under federal law in such cases ‘may not be identical to the. elements usually required under state law in Florida.’” Montes v. Mastec N. Am., Inc., 132 So.3d 1195, 1198 n.2 (Fla. 3d DCA 2014) (quoting Losacano v. Deaf & Hearing Connection, 988 So.2d 66, 70 n.2 (Fla. 2d DCA 2008)).

Thus, because the trial court did not apply the Florida judicial estoppel doctrine as iterated in Blumberg and Grau, we are compelled to reverse. We conclude that judicial estoppel does not bar the claim for attorney’s fees for two reasons.

First, as stated in Blumberg, “[tjhere can be no estoppel where both parties are equally in possession of all the facts pertaining to the matter relied on as an estoppel.” 790 So.2d at 1066 (quoting Chase & Co., 156 So. at 610). Here, the Bank was a creditor in the bankruptcy proceeding and was as aware of the fee entitlement order as Anfriany.

Second, Anfriany’s asserted inconsistent position of not disclosing the fee entitlement order in the bankruptcy proceeding did not “derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Grau, 899 So.2d at 400 n.3 (quoting New Hampshire, 532 U.S. at 751, 121 S.Ct. 1808). In other words, .the record fails to show any prejudice to the Bank. Anfriany’s entitlement to fees had already been fully litigated, and no assertions by Anfriany in the bankruptcy proceeding were inconsistent with the facts justifying the fee entitlement order. The trial, court made a specific finding that Anfriany had no motive to conceal the fee entitlement order in the bankruptcy proceeding. If there was no motive to conceal, the facts do not support either a finding or conclusion that “intentional self-contradiction is being used as a means of obtaining an unfair advantage in a forum provided for suitors seeking justice.” Id. at 401 (emphasis added) (quoting Scarano, 203 F.2d at 513).

Instead, the record before us leads us to the same conclusion this Court reached in Gram To apply judicial estoppel to Anfria-ny’s entitlement to fees and costs would bestow a -windfall in favor of the Bank. Therefore, we quash the trial court order vacating and dismissing Anfriany’s entitlement to attorney’s fees and costs based on judicial estoppel and remand the case to the trial court for further proceedings.

Reversed and remanded.

Damoorgian and Forst, JJ., concur.

      . We note that the case law from this and other districts after Grau contends that judicial estoppel has an element of misleading the other party on a factual matter upon which the other party relied. See Bueno, 20 So.3d at 997 ("The elements of judicial estoppel are the same as equitable estoppel, with the add'ed elements of successfully maintaining a position in one proceeding, while taking an inconsistent position in a later proceeding, in which the same parties and questions are involved.”) Fintak v. Fintak, 120 So.3d 177, 186 (Fla. 2d DCA 2013) (holding that for judicial estoppel to apply, "the party claiming estoppel must have relied on or been misled by the former position" and' "the party seeking estoppel must have changed his or her position to his or her detriment based on the representation").

      . In his reply brief) Anfriany raises issues regarding the lack of “evidence” to support the trial court’s decision and the burden of proof for judicial estoppel. However, because these two issues were never raised below or in the initial brief, we state no opinion on these issues. See United Auto. Ins. Co. v. Hollywood Injury Rehab Ctr., 27 So.3d 743, 744 n.1 (Fla. 4th DCA 2010) (“That issue was not raised in this case until the filing of the reply brief. Matters argued for the first time therein will not be considered by the reviewing court.”). "


text:
    Norris SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-0518
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jéssenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant, initially charged with two counts of robbery with a weapon or firearm, successfully moved to sever the counts and proceeded to a jury trial on one of the two counts, where the jury found him guilty.

At sentencing, defense counsel took issue with the presentence investigation report, where the probation officer cited to “a pending open case” — one different than the charges in this case — of which the Defendant had not yet been tried or convicted. The assistant state attorney prosecuting this third charge appeared at sentencing and provided the court with general information about the charge. The court proceeded to ask questions regarding the specific facts at issue in this other charge, such as whether the charges were similar to the crime for which the Defendant had been convicted.

While orally sentencing the Defendant, the court discussed this third charge, stating: “On the eve of the verdict of guilty in [Count I], [the Defendant] was charged in a third count or a third charge at the same location with the same information of sexual battery — armed sexual battery, correct? .... And robbery with a firearm.” The court proceeded to sentence the Defendant to thirty years’ imprisonment.

On appeal, the Defendant raises multiple issues as to both his conviction and his sentence. We find merit only in his argument that the trial court erred by considering a crime he had neither been tried for nor convicted of at the time of sentencing. Therefore, we affirm his conviction, but vacate his sentence and remand for resen-tencing.

We review the court’s sentence de novo. Norvil v. State, 191 So.3d 406, 408 (Fla. 2016). In Norvil, the State recommended the court consider a new charge pending against the defendant. Id. at 407. The court inquired about the pending charge and “declined to sentence the defendant as a youthful offender, and instead sentenced him to twelve years in prison.” Id. at 408. We affirmed the court’s consideration of the new charge, but the Florida Supreme Court quashed our decision, holding that “the arrests and convictions considered by a trial judge in sentencing occur ‘prior to the time of the primary offense,’ and not subsequent to the primary offense.” Id. at 409 (quoting § 921.0021(6), Fla. Stat. (2010)). The supreme court then “adopt[ed] the following bright line rule for sentencing purposes: a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.” Id. at 410.

In Norvil, the supreme court, stated that “the State failed to show that the trial court did not rely on the pending charge resulting from the subsequent arrest for burglary of a dwelling.” Id. at 409. Here, it is not clear that the court actually considered the new crime when sentencing the Defendant. However, in light .of the court’s comments regarding the new crime as it handed down the sentence, the State failed to satisfy the burden imposed by Norvil, as it did not show that the court did not rely on the new crime when it sentenced the Defendant.

In light of Norvil, we have since vacated a defendant’s sentence and remanded for resentencing when a court considered subsequent crimes, even though the sentence was within the statutory limits. Johnson v. State, 204 So.3d 521, 522 (Fla. 4th DCA 2016). We must do the same here.

We affirm the Defendant’s conviction. However, due to the court’s apparent consideration at sentencing of a subsequent crime for which the Defendant had neither been tried nor convicted, we vacate the Defendant’s sentence and remand for re-sentencing.

Conviction affirmed, sentence vacated, and remanded for resentencing.

Levine and Forst, JJ., concur.

      . In a separate proceeding, a jury found the Defendant guilty as charged in Count II.


author: Damoorgian, J,

text:
    Richard TAFFE, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4262
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J,

Appellant, Richard Taffe, appeals the trial court’s order revoking his probation and sentencing him to fifteen years as a Habitual Felony Offender. Appellant argues that this Court should reverse because: l)-the evidence was insufficient to support, the trial court’s finding that Appellant violated his probation by committing the offense of witness tampering, and 2) one of the offenses for which the trial court found Appellant in violation, aimed kidnapping, was not alleged in the charging affidavit.. We affirm the . revocation of Appellant’s probation but remand for modification of the order to remove the armed kidnapping finding as discussed below.

Background

Appellant pleaded no contest to one count of- felon in possession of-a firearm and was sentenced to three years of probation; As a condition of his probation, Appellant was required to live without violating the law. While on probation, Appellant was arrested and charged with several offenses "stemming from an armed robbery and kidnapping. Based on the foregoing,' the State filed an Affidavit of Violation of Probation (VOP) which alleged that Appellant violated his probation by committing the new law offenses of: 'robbery with a firearm, aggravated assault with a firearm, armed false imprisonment, felony" battery, burglary of a conveyance, grand- theft, .and witness tampering.

At the VOP hearing, the State’s evidence established that Appellant and two other men set up a bogus electronics transaction with a cellular phone store owner and, during the process, kidnapped and held the victim at gunpoint. While holding the victim hostage in a car, Appellant and one of his co-defendbnts discussed what they should do with the victim. Appellant .stated that they should kill the victim to keep him from talking to the police. The co-defendant objected and told the victim that they would let him live, but threatened that they would kill the victim and his family if he ever spoke to the police. The co-defendant then took the victim’s driver’s license from his wallet before shoving the victim out of the car and onto the side of a road.

. Considering the foregoing evidence, the court revoked Appellant’s probation, finding that he committed all of the new law violations, alleged ip the State’s affidavit of VOP as well as the offense of armed kid-: napping.

Analysis

a) The Witness Tampering Finding

On appeal, Appellant argues that the court erred in finding that he violated his probation by committing the offense of witness tampering. Section 914.22 provides, in pertinent'part, that a person commits the crime of witness tampering when that person:

(1) [Kjnowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to: .
(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense ¿...

§ 914.22(1)(e), Fla. Stat. (2013). Accordingly, to prove the offense of witness tampering, the State must prove that through some knowing act, threat, or attempted act, “the accused specifically intended to hinder, delay, or prevent the communication of information regarding a crime to a law enforcement officer.” Gill v. State, 622 So.2d 92, 93 (Fla. 2d DCA 1993).

Appellant admits that the State established that he threatened to kill the victim in order to prevent him from speaking to police, but argues that this' threat did not constitute tampering because there was no evidence that the victim was attempting to contact law enforcement when the threat was made. In support of his position, Appellant relies upon a line of cases from the First District which stand for the proposition that in order to support a-conviction for witness tampering under section 914.22(l)(e), the State is required' “to present evidence that the victim was attempting to contact law enforcement during the time of the-incident.” McCray v. State, 171 So.3d 831, 832 (Fla. 1st DCA 2015) (citing Thompson v. State, 153 So.3d 996 (Fla. 1st DCA 2015) and Longwell v. State, 123 So.3d 1197 (Fla. 1st DCA 2013)). We reject this authority and instead adopt the Second District’s holding in McCloud v. State, 224 So.3d 842, 846 (Fla. 2d DCA 2017).

Certifying conflict with McCray, the Second District held that “section 914.22(l)(e) does not require the State to present evidence showing that the witness or victim ‘was attempting to contact law enforcement during the time of the incident.’ ” McCloud, 224 So.3d at 846 (quoting McCray, 171 So.3d at 832). In arriving at this conclusion, the McCloud court looked to the plain language of section 914.22(l)(e), which notably does not in-elude any language providing that the witness must be attempting to contact law enforcement when the tampering occurs. Id. It therefore reasoned that the First District improperly “add[ed] another element to a crime that is otherwise clearly defined.” Id. Additionally, the McCloud court reasoned that “if we were to interpret the statute as the First District has done, the State’s case would be dependent upon the actions of the witness rather than on those of the defendant. Such an interpretation not only severely restricts the statute’s applicability, but it also contravenes the plain meaning of the statute and could lead to absurd results.” Id. (footnote omitted).

In our view, there is simply nothing within the plain language of the witness tampering statute requiring the State to prove the witness was attempting to contact law enforcement when the threat was made. Instead, the statute only requires the “State to prove that the accused knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement ‘relating to [not during] the commission or possible commission of, an offense.’” Id. (quoting § 914.22(l)(e), Fla. Stat.). Indeed, as outlined by the Second District, adopting the logic of the First District in this case would lead to an “absurd result.” Here, there is no way that the victim could have tried to contact law enforcement at the time his life was threatened because he was being held hostage at gunpoint. This scenario illustrates that under the law as delineated by the First District, a defendant could never be held criminally hable for witness tampering so long as the defendant ensures that the witness is unable to contact law enforcement at the time the threats are made. In other words, so long as a defendant kidnaps a witness, cuts their phone lines, or destroys their cell phone before threatening them in order to prevent the witness from contacting law enforcement, there can be no witness tampering. This logic, by any measure, would lead to an absurd result. See Quarantello v. Leroy, 977 So.2d 648, 654 (Fla. 5th DCA 2008) (recognizing that courts “must abide by the rule of státutory construction that requires [courts] to interpret a statute to avoid absurd or unreasonable results”).

Based on the foregoing, we hold that the evidence was sufficient to support the court’s finding that Appellant violated his probation by committing the offense of witness tampering.

b) The Armed Kidnapping Finding

Next, Appellant argues that the court fundamentally erred when it found Appellant in violation' of his probation for committing the new law violation of armed kidnapping where the State did not allege this in its charging affidavit. “An' affidavit upon which a revocation is based must set forth the basic facts of the alleged violations.” Bourne v. State, 869 So.2d 606, 607 (Fla. 1st DCA 2004). “Thus, revoking a defendant’s probation based upon a violation that was not charged is error.” Id. In this case, the State did not allege that Appellant committed the new law violation of armed kidnapping in the VOP affidavit. Therefore, as the State properly concedes, the trial erred in finding that Appellant violated his probation by committing the offense of armed kidnapping.

Conclusion

Appellant has not demonstrated that the court erred in finding him in violation of his probation for committing the new law offenses of robbery with a firearm, aggravated assault with a firearm, armed false imprisonment, felony battery, burglary of a conveyance, grand theft, and witness tampering. However, Appellant has demonstrated that the court erred in finding him in violation for committing the offense of armed kidnapping. Despite the court’s error, there are sufficient valid grounds remaining upon which the trial court properly revoked Appellant’s probation. Accordingly, we affirm Appellant’s probation revocation and sentence, but remand with instructions to strike the armed kidnapping finding. Id. '

Affirmed and remanded with instructions.

Warner and Taylor, JJ., concur.