text:
    Howard DOZIER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-0850
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    Howard Dozier, Punta Gorda, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 10, 2016 order dismissing Petitioner’s pro se petition for writ of habeas corpus filed in Case No. 2016-CA-5941 (1975-CF-00748), in the Ninth Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, EVANDER and LAMBERT, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph ALBERTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3306
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    James S. Purdy, Public Defender, and Brittany N. O’Neil, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the revocation of Appellant’s probation, but remand for entry of an order identifying the conditions of probation that Appellant violated.

AFFIRMED and REMANDED.

ORFINGER, TORPY and BERGER, JJ., concur.


text:
    Dudley WHITFIELD, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1598
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Dudley Whitfield, Jr., Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton and Lori N. Hagan, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant’s conviction and sentence for attempted second-degree murder with a weapon, but we do so without prejudice to Appellant to file a motion pursuant to Florida Rules of Criminal Procedure 3.800(a) or 8.850, if he can do so in good faith.

AFFIRMED.

SAWAYA, LAMBERT, and EDWARDS, JJ., concur.


text:
    William WACKER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-5575
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017
    William Wacker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the July 25, 2016, Order Dismissing Successive Motion for Post-Conviction Relief as Untimely in Santa Rosa County Circuit Court case number 2006-CF-864. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice' of appeal. Fla. R. App. P. 9.141(c)(6)(D).

ROWE, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Issac L. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4992
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017
    Issac L. Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the July 8, 2015, Order Denying Motion for Post-Conviction Relief in Alachua County Circuit Court case numbers 01-2006-CF-000841-A, 01-2005-CF-001428-A, 01-2005-CF-001528-A, 01-2005-CF-001631-A, and 01-2004-CF-003788-B. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

ROWE, OSTERHAUS, and WINOKUR, JJ„ CONCUR.


text:
    Howard Carl MCLEES, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D15-4827
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017
    Howard Carl McLees, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the June 11, 2015, Order Denying Motion for Postconviction Relief in Columbia County Circuit Court case numbers 2006-932-CF and 2006-1012-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

ROWE, OSTERHAUS, and WINOKUR, JJ„ CONCUR.


text:
    TJM MAC LLC, Appellant, v. MIDFIRST BANK, Marvalyn Lambert and Deersong Homeowners’ Association, Inc., Appellees.
    Case No. 5D17-112
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 5, 2017
    Isaac Manzo and J. Randy Edmonson of Manzo & Associates, P.A., Orlando, for Appellant.
    Nicole R. Ramirez of EXL Legal, PLLC, St. Petersburg, for Appellee Mid-first Bank.
    No Appearance for other Appellees.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Midfirst Bank’s Concession of Error, we reverse the Final Judgment of Foreclosure and remand this matter to the trial court for further proceedings.

REVERSED and REMANDED.

ORFINGER, TORPY, and EVANDER, JJ,, concur.


text:
    Omar T. ALSTON, Appellant, v. Sheimira HAINES, Appellee.
    Case No. 5D16-2947
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 5, 2017
    Omar T. Alston, Monticello, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Omar Alston appeals the summary denial of his motion to vacate an injunction against repeat violence. The final judgment granting the injunction was entered in January 2011 and was to remain in full force and effect until further order from the court.

In 2016, Alston filed a motion to vacate the injunction. In the motion, Alston alleged that because he was currently serving a ten-year sentence on unrelated charges, his circumstances had changed since entry of the injunction. Alston claimed that the injunction was prohibiting his eligibility for a lower custody and housing level and was preventing his participation in “courses and education classes, rehabilitation programs, jobs, and transferring to certain facilities.” The trial court denied the motion without affording Alston a hearing. We reverse.

We have previously addressed this issue in similar contexts and concluded that an evidentiary hearing is required on a motion to modify or dissolve an injunction when the motion is legally sufficient. See, e.g., Bennett v. Abdo, 167 So. 3d 522 (Fla. 5th DCA 2015); Raymonvil v. Lewis, 46 So. 3d 139 (Fla. 5th DCA 2010). Because Alston’s motion was legally sufficient in this case, he was entitled to an opportunity to be heard. Cf. Woolley v. Nelsen, 183 So. 3d 476 (Fla. 2d DCA 2016) (holding that a hearing was required on motion to dissolve an injunction when inmate alleged injunction was preventing him from obtaining a lower custody level, taking advantage of rehabilitation programs, or transferring to a facility closer to home).

REVERSED and REMANDED for an evidentiary hearing.

COHEN, C.J., BERGER, J. and JACOBUS, B.W., Senior Judge, concur.

      . Alston filed a previous motion that was denied by the court without prejudice because it failed to "allege grounds ... to form a basis to vacate or rescind the injunction.”


text:
    Christie SPIKES, Appellant, v. Shane FONVILLE, Appellee.
    CASE NO. 1D17-0802
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017

      Curtis W. Brannon, Crestview, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. The Court declines to abate the appeal as requested by the appellant in the response to the Court’s March 27, 2017, order. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009) (dismissing appeal rather than allowing lower court to enter a final order where an indeterminate amount of judicial labor remained to be done before a final order could be entered).

KELSEY, WINOKUR, and WINSOR, JJ., CONCUR.


text:
    SCRAP, INC., G.S.I. Recycling, Inc., and D & S of Pensacola, Inc., Petitioners, v. Richard ADAMS, Eulaine Adams, Malinda Anderson, Mary Matthews, Henry Atkins, Jacqueline Atkins, Lucy Mae Bell, Betty Brown, Clayton Brown, Jr., Clayton Brown, III, Ossie Brundridge, Carol Brundridge, Mary Casey, Willie Davison, Emma Davison, Giavanie Pearson, Mcbether Hill, Audrey Hogan, Lillie Mae Johnson, Deborah Legrant, Evelyn Lovette, Clinton Madison, Gertrude Adams, Eula Madison, Mary McCann, Joseph Miller, Lucille Miller, Clarence Sampson, Ronnie Sampson, Floyd Peacock, Johnnie Peacock, Alconric Peavy, Veronica Posey, Mary Louise Postell, Stephen Russo, Annette Smith, Verna Stephen, Ronald Stewart, Anna Stewart, Hubert Thompson, Carol Thompson, Sylvester Washington, Vernon Washington, Easter Welch, Maggie White, Franklin Willis, Winder Maurice Willis, Antangila Willis, and Brandon Barge, Respondents.
    CASE NO. 1D16-5757
    District Court of Appeal of Florida, First District.
    Opinion filed May 9, 2017
    W. David Jester and Jessica L. Scholl of Galloway, Johnson, Tompkins, Burr & Smith, PLC, Pensacola, and Robert O. Beasley of Litvak, Beasley, & Wilson, LLP, Pensacola, for Petitioners.
    No appearances for Respondents.
   PER CURIAM.

Petitioners seek certiorari review of an order consolidating multiple cases for trial. Petitioners have failed to demonstrate that they will be irreparably harmed by the order of consolidation as the order is subject to review on direct appeal. See Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., Inc., 48 So.3d 976, 986 (Fla. 3d DCA 2010), disapproved on other grounds by Aubin v. Union Carbide Corp., 177 So.3d 489 (Fla. 2015). Accordingly, the petition for writ of certiorari is denied.

ROBERTS, C. J., LEWIS and WINSOR, JJ., CONCUR.


author: Per Curiam. Klingensmith, J.,

text:
    Nicole BECKFORD, Appellant, v. Adrian DROGAN, Appellee.
    No. 4D16-947
    District Court of Appeal of Florida, Fourth District.
    [January 27, 2017]
    Rhea P. Grossman, Fort Lauderdale, for appellant.
    Lydia A. Worden and Celia E. Henry of Beaulieu-Fawcett Law Group, P.A., Del-ray Beach, for appellee.
   On En Banc Consideration of Appellee’s Motion for Attorney’s Fees

Per Curiam.

The appellee moved for attorney’s fees in this paternity action. We grant the ap-pellee’s motion, and as fashioned below, we recede from Gilbertson v. Boggs, 743 So.2d 123 (Fla. 4th DCA 1999). We now apply the plain meaning of the first sentence of section 742.045, Florida Statutes (2016), which has remained identically worded for more than 25 years.

The statute was and remains unambiguous and, in fact, is crystal clear. This court has neither the function nor prerogative to speculate on—or engage in—construction of a statute that continues to convey an unequivocal meaning.

Since 1991, section 742.045, in pertinent part, has been straightforward:

The court may from, time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings.

§ 742.045, Fla. Stat. The statute allows for the award of attorney’s fees in “any proceeding under this chapter.” It is axiomatic that this would include any appellate proceedings necessary to maintain or defend an action under the chapter.

Gilbertson did not consider the statutory context or the history of the statute in determining that it did not authorize attorney’s fees on appeal. 743 So.2d at 128. Instead, it wrongly concluded that because the Legislature later ■ enacted- a specific inclusion of appellate attorney’s fees in section 61.16, Florida Statutes, it must have impliedly rejected" such an inclusion of appellate fees in section 742.045. Id. It relied solely on Starkey v. Linn, 727 So.2d 386, 388 n,3 (Fla. 5th DCA 1999), which in a footnote stated that the statute did not authorize attorney’s fees by comparing it to the then current version of section 61.16 which included a specific reference to ap~ p'ellate attorney’s fees: “It is almost identical to section 61.16, but for the conspicuous absence of authority to award appellate fees.” Gilbertson, 743 So.2d at 128 (quoting Starkey, 727 So,2d at 388 n.3). Reliance on that footnote led us to the wrong conclusion.

We thus recede from Gilbertson and grant attorney’s fees to the appellee, conditioned upon a showing of need and ability to pay, and remand for the trial court to make that determination, as well as the amount of a reasonable fee, should need and ability be established. We also certify conflict with Starkey.

Conflict certified.

Ciklin, C.J., Warner, Gross, Taylor, May and Conner, JJ., concur.

Forst, J., recused.

Klingensmith, J., dissents with opinion, in which Damoorgian, Gerber, Levine and Kuntz, JJ., concur.

Klingensmith, J.,

dissenting.

“As with the interpretation of any statute, the starting point of analysis is the actual language of the statute.” Miles v. Parrish, 199 So.3d 1046, 1048 (Fla. 4th DCA 2016) (quoting Conservation All. of St. Lucie Cty., Inc. v. Fla. Dep’t of Envtl, Prot., 144 So.3d 622, 624 (Fla. 4th DCA 2014)). “If the language is clear and unambiguous, there is no need to resort to the rules of statutory construction; the statute must be given its plain and obvious meaning.” Id. (internal quotation marks omitted) (quoting Conservation All. of St. Lucie Cty., 144 So.3d at 624). “Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992).

In 1991, the Legislature adopted section 742.045, Florida Statutes, as part of the chapter of statutes entitled “Determination of Parentage,” containing the following attorney’s fees provision:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings.

§ 742.045, Fla. Stat. (emphasis added).

Eight years later, this court found the Legislature clearly intended for appellate fees not to be awardable in paternity actions under section 742.045. See Gilbertson v. Boggs, 743 So.2d 123, 128 (Fla. 4th DCA 1999) (“[W]e hold that the trial court erred in awarding appellee temporary appellate fees and costs ... where [the appellant’s] action sought to establish paternity and visitation pursuant to Chapter 742 and there is no authority under that chapter for appellate fees.”).

Gilbertson gave effect to the plain statutory language that clearly does not include appeals within its scope. The phrase “any proceeding under this chapter” advises that a court may award fees related only to proceedings brought pursuant to section 742.045. The language used in the statute is limiting, and does not expand the availability of attorney fees to proceedings other than paternity actions litigated in a lower tribunal. It does not state that fees are awardable for “any proceeding” without limitation, or for “any proceeding arising from this chapter.” Under both hypothetical wordings, an award of fees would not necessarily be limited to actions occurring in a lower tribunal, and might arguably be broad enough to include post-judgment or interlocutory appellate matters. Yet, while the statute specifically identifies enforcement and modification actions as “proceedings” under chapter 742, Florida Statutes, nothing within the entirety of that chapter identifies “any proceeding under this chapter” to include appeals. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (“We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable. Instead, we must give effect to the text Congress enacted .... ” (footnote omitted)); Pavelic & LeFlore v. Marvel Entm’t Grp., 493 U.S. 120, 126, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989) (“Our task is to apply the text, not to improve upon it.”). If the Legislature had intended to extend the effect of this section to other proceedings separate and apart from those maintained in the lower tribunal, it would have so stated.

Inserting missing language into section 742.045 by judicial interpretation, or ignoring the words “under this chapter,” is not akin in this ease to correcting a mere drafting or clerical error; rather, it changes the entire meaning of the statute to allow fee awards in circumstances not authorized therein. This court should not effectively include verbiage where such a revision “would substantively change the entire meaning of the statute in a manner contrary to its plain meaning.” Fla. Dep’t of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 324 (Fla. 2001). “Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so. A court’s function is to interpret statutes as they are written and give effect to each word in the statute.” Id. (footnote omitted).

My view of section 742.045 adds nothing to the plain statutory language, nor does it lead to either an unreasonable result or produce a result demonstrably at odds with the intentions of its drafters. Because the wording of section 742.045 is not ambiguous, unreasonable, or illogical, we may not go beyond its clear wording and plain meaning to expand its reach. See Palm Beach Cmty. Coll. Found., Inc. v. WFTV, Inc., 611 So.2d 588, 589 (Fla. 4th DCA 1993). To do so would extend or modify the express terms of the statute, which would be an improper abrogation of legislative power. See Oruga Corp., Inc. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141, 1144 (Fla. 3d DCA 1998) (citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984)).

As such, creating an appellate attorney’s fee award under section 742.045 by amending or rewriting the statute is the Legislature’s job, not ours. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla. 1993) (holding that the court could not expand the scope of the plain language of a statute awarding attorney’s fees, as “the Legislature, rather than [the] Court” would be “the proper party to do so”). This court’s opinion in Gilbertson appropriately applied the plain meaning of the statute to deny an award of appellate fees under section 742.045. Therefore, I respectfully dissent.

Damoorgian, Gerber, Levine and Kuntz, JJ., concur.

      . The Second District Court of Appeal has also certified conflict with Starkey on this issue. See B.K. v. S.D.C., 122 So.3d 980, 982-83 (Fla. 2d DCA 2013).


author: Gross, J.

text:
    D.V., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1876
    District Court of Appeal of Florida, Fourth District.
    [March 22, 2017]
    As Clarified on Denial of Rehearing April 26, 2017

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Tolstoy famously wrote that “[a]ll happy families are alike; each unhappy family is unhappy in its own way.” The sad tale of the unhappy family in this case would have challenged the ability of any juvenile judge to do the right thing. In the end, the trial judge imposed a sentence contrary to the notion of juvenile justice set forth in the Florida Statutes and described by the United States and Florida Supreme Courts.

The child appellant was born and raised outside of Florida. He had little contact with his biological father. When the child was 12, his mother died. For a while, the child lived with his maternal grandmother in Pennsylvania.

There came a time when the child moved to Florida to live with his biological father, stepmother, and the stepmother’s children, whom his father had adopted. The living situation deteriorated. The child was depressed. He did poorly in school. He chafed under the rules of the house', which were new to him. The father and the stepmother responded with punishment. They accused him of laziness. One by one, they took away his possessions until he was left with nothing but school work and a spartan bedroom.

The child began to act out. He stole money from a stepbrother’s bedroom. The father and stepmother installed locks on the family’s doors to guard against the child’s thievery. The child accused his father and stepmother of child abuse, which he later retracted. After the abuse allegations, according to the stepmother, the family stopped interacting with the child, “playing with him stopped, conversations were kept to a minimum ... basically he was avoided.” The child remained in Florida.

The child received some psychological treatment and was diagnosed with depression. The father and stepmother did not participate in therapy to the extent desired by the therapist.

One day at school, the child hand wrote a note with a school Mend. The note said:

I, [friend] will be hitman for hire for [child] to murder [stepmother], [father], and [stepbrother]. I am aware that if I do not go through with it I will not get paid. Money in question we agreed upon was 1200 dollars. I will leave in an hour or two within the murder.

The friend signed the note and returned to his school work. The Mend knew the child had a lot of anger toward his father, but thought that the child was “joking around.” They never discussed the note again and the friend gave it no thought. He did not know where the child lived. He did nothing to prepare for the deed described in the note.

Several weeks later, the father found the note in the child’s room in a pants pocket. He called the police.

The child was taken into custody and interrogated for five hours at the police station. The child said a lot of things about his family that people say to therapists but not to police officers. The child did not have $1,200 and a search of his room uncovered no money.

The state charged the child with three counts of solicitation to commit first degree murder, contrary to sections 782.04(1) and 777.04(2), Florida Statutes (2015). The state did not charge the Mend with any crime.

After the presentation of evidence at the delinquency hearing, the trial judge found the child guilty as charged. On appeal, the child challenges the sufficiency of the evidence of solicitation. To evaluate such a challenge, an appellate court accords great deference to the trial court on questions of fact, the credibility of witnesses, and the weight given to the evidence. See Blanco v. State, 702 So.2d 1250, 1252 (Fla. 1997). If weight is given to certain portions of the child’s interrogation and to the stepmother’s testimony, there is legally sufficient evidence to support the guilty verdict. See J.WJ. v. State, 994 So.2d 1223, 1224 (Fla. 1st DOA 2008). We therefore affirm the trial court’s findings of delinquency.

The Disposition Hearing

The Department of Juvenile Justice (“DJJ”) submitted a predisposition report recommending supervised probation along with individual, group, and family therapy. Due to the child’s history of self-harm, it was deemed important for those around the child to monitor his symptoms and levels of depression. The report stated that the child would benefit from “intensive outpatient services that [provide] mental health treatment” and aside from his “behavior/attitude,” there was no reason the child could not be “successful in an academic setting.”

According to the Positive Achievement Change Tool (“PACT”), the child was at a moderate risk to re-offend. The child had no previous delinquency history. The DJJ asserted he “should be afforded the opportunity to receive community based services.” The evaluation observed that the child had “significant mental health issues which [could] be addressed via outpatient therapy.” If the child was permitted to live with his grandmother, she could monitor him closely and ensure his participation in any outpatient treatment.

The DJJ also recommended that the child’s “family actively participate in therapy.” The father refused to do so, but the grandmother was willing to participate and offer the necessary support. The DJJ advised that it could submit an “Interstate Compact application” for the grandmother and the court could conduct status review hearings. For these reasons, the DJJ recommended probation with adjudication withheld.

If the court disagreed with the probation recommendation, then the DJJ recommended a non-secure residential program to meet the child’s “intensive mental health needs,” Since the child had never been to a residential program, the DJJ stated he “need[ed] to begin his stay at the least restrictive level.”

This recommendation was consistent with documentation from the child’s Baker Acts, which indicated-that the father refused to participate in therapy sessions and no one in the family called or visited the child. A psychiatrist opined that “going home to his father and stepmother is an unsafe placement for” the child.

The Grandmother’s Testimony

The child’s grandmother testified. A month after the child moved to Florida, the father and stepmother cut off the grandmother’s communication with the child; they refused to let her visit the child in Florida. She offered to take the child back to live with her in Pennsylvania. She was willing to provide the psychological care that the DJJ had recommended in the report.

The grandmother offered a lengthy letter from the stepmother. In it, the stepmother’s dislike for the child and his maternal family is palpable—his presence had destroyed the stepmother’s happy family dynamic.

Testimony from Detention Center Staff

A variety of employees from the regional juvenile detention center, where the child had been held the previous 50 days, testified on his behalf.

The designated mental health counselor had 20 years of experience in dealing with abused children. She first met the child when he arrived at the detention center and she interacted with him every day. She described the child as “different than most of the youth we get in the detention center”; he was anxious and withdrawn, characteristic of a child who had never before been detained. The child showed signs that he had been abused or traumatized.

The mental health counselor described the child as “a great kid” who was friendly and likeable and who got along well with everyone; he was not defiant or combative. She recommended outpatient therapy and a “supportive, nurturing environment” and was concerned about what the child would be exposed to if he were sent to a residential program. With the proper structure and support, she believed the child’s needs could be “adequately met in the community.” She was concerned with the long-term effects on the child’s development because he was not the type of antisocial or conduct disorder child typically placed in a maximum risk facility.

A nurse from the detention center testified that, unlike many children at the center, the child was not disrespectful or defiant. She was usually cautious around the children, but she had no fear of the child, calling him “the highlight to [her] day.” The nurse agreed with the DJJ’s recommendation, believing the child should be placed in a loving environment; she did not “feel like a locked secured area [was] the answer for him.” The nurse said she would “be happy to even take him home.”

A school transition specialist testified that as a guidance counselor at the detention center, she participated in the child’s staffing, which was her first interaction with the child. She found the child cooperative, with no bad attitude. The child’s teachers told the specialist that he was “a nice kid” and very respectful. She had participated in hundreds of staffings and based on everything she had heard, she recommended that the child “get counseling in the community and possibly have the opportunity to go back to his grandmother.”

A volunteer from the detention center reached out to the defense and asked to testify on the child’s behalf. She had taught a religious education class at the center for 6 1/2 years and “was very impressed with [the child].” The volunteer explained that the class was optional and the child had chosen to attend; she believed the child was “at the cusp of manhood” and it would “make a great deal of ... difference what kind of environment he’s in.” The volunteer believed the child deserved a chance.

The juvenile detention center superintendent, who had worked for the DJJ for 30 years, also testified on the child’s behalf. She approached the defense because she had special concerns about the child. During the time the child was detained, he had “maintained an outstanding behavior.” He was “very cooperative, he’s respectful, he ha[d] maintained a level three status from day one.”

The superintendent explained that level three status was for the “honor kids”; it was “very difficult” to achieve and the child had maintained that status throughout his stay at the center. She had “never seen that done” since the behavior management system was implemented. The superintendent agreed with the DJJ’s recommendation for probation because, based on her observation, the child was special. He was “bright and smiley,” got along with everyone, helpful, and loved to read.” The superintendent felt compelled to testify on the child’s behalf. She did not-believe a commitment program would benefit the child because he needed counseling and a loving, caring environment. .

The State’s Evidence Regarding Placement

The state played portions of the video interrogation.

A social worker who interacted with the child after he contacted DCF about abuse thought the child should be “in a setting where he can receive intensive individual, family, and group therapy along with consistent medication management.” She thought the child needed residential treatment but did not recommend a particular level.

The stepmother’s testimony contrasted sharply with every other witness. She insisted the child was dangerous and had been suspended from school for an incident involving a knife, but could not explain why the child’s school records did not indicate any suspension. Although she testified at the delinquency trial that the family put locks on their doors because the child was a thief, she claimed at the disposition hearing that the locks were implemented because they were afraid of the child.

The Sentence

The judge departed from the DJJ recommendation and committed the child to the DJJ for placement at a maximum risk facility.

The judge did not think he had the ability to send the child back to the grandmother in Pennsylvania, but would not do so even if he could because it would “give [the child] what he looked for from the beginning of this.” The judge said that the child “actually wins by sending him back to Pennsylvania because that’s in fact what he’s wanted for years, resulting in the criminal act that’s before the court to get here.” The trial court focused on punishment for “the most seiious [offense] known to man.” He said that “protection of the community” required the sentence he imposed.

Discussion

For the act of writing the note signed by the child’s friend, the trial court sentenced the child, who had no previous delinquency incidents, to a maximum risk x-esidential program. Section 985.03(44)(d), Florida Statutes (2015) describes this level of commitment as including “juvenile correctional facilities and juvenile prisons,” which “do not allow youth to have access to the community.” “Facilities at this commitment level are maximum-custody, hardware-secure with perimeter security fencing and locking doors,” 24-hour supervision, and single cell occupancy. Id. “Placement in a program at this level is prompted by a demonstrated need to protect the public.” Id.

In cases involving actual homicides committed by juveniles, the United States Supreme Court has recognized that “children are constitutionally different - from adults for purposes of sentencing.” Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2464, 183 L.Ed.2d 407 (2012). The Court recognized three significant gaps between children and adults that justify the difference in sentencing:

First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impul-sivity, and heedless risk-taking. Second, children are more vulnerable -... to negative influences and outside pressures, including from their family and peers; they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as well formed as an adult’s; his traits are less fixed and his actions less likely to be evidence of irretrievable depravity.

Id. (internal citations omitted). The Court observed that “[bjecause the heart of the retribution rationale,” which often informs adult sentencing, “relates to an offender’s blameworthiness, the case, for retribution is not as strong with a minor as with an adult.” Id. at 2465 (internal citations omitted); see also Landrum v. State, 192 So.3d 459, 463-64 (Fla. 2016).

Reflecting the values contained in the Supreme Court’s discussion in Miller, Florida’s statutory scheme for juvenile offenders emphasizes “rehabilitation as the principal means by which to achieve the goal of preventing delinquent children from becoming adult offenders.” P.W.G. v. State, 702 So.2d 488, 491 (Fla. 1997) (internal citation omitted). The legislature has identified some of the purposes of Chapter 985 as:

(c) To provide an environment that fosters healthy social, emotional, intellectual, educational, and physical development; to ensure secure and safe custody; and to promote the health and well-being of all children under the state’s care.
(d) To ensure the protection of society, by providing for a comprehensive standardized assessment of the child’s needs so that the most appropriate control, discipline, punishment, and treatment can be administered consistent with the seriousness of the act committed, the community’s long-term need for public safety, the prior record of the child, and the specific rehabilitation needs of the child ....
(g) To provide children committed to the department with training in life skills, including career and technical education, when appropriate.
(h) To care for children in the least restrictive and most appropriate service environments to ensure that children assessed as low and moderate risk to reof-fend are not committed to residential programs, unless the court deems such placement appropriate.

§ 985.01(l)(c)(d)(g) & (h), Florida Statutes (2015).

To implement the values identified in section 985.01, the legislature has provided a roadmap for disposition hearings in section 985.433, Florida Statutes (2015), which places great weight on the DJJ recommendations in a predisposition report.

In its report, the DJJ is required to “recommend to the court the most appropriate placement and treatment plan, specifically identifying the restrictiveness level most appropriate for the child if commitment is recommended.” § 985.433(7)(a). Any penalty imposed on the child is “designed to encourage responsible and acceptable behavior and to promote both the rehabilitation of the child and the protection of the community.” § 985.433(9). The report shall include a variety of considerations, such as the type and seriousness of the offense, public safety, sophistication and maturity of the child, criminal history, and the child’s rehabilitative needs. § 985.433(6)(a-h).

If a court determines a child should be adjudicated and committed to the custody of the DJJ, that determination must be in writing or on the hearing record and include specific findings for the reasons the court chose commitment. § 985.433(7). If the court deviates upward from the DJJ’s ■ recommended commitment level, it “shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the [DJJ].” § 985.433(7)(b); see also E.A.R. v. State, 4 So.3d 614, 618 (Fla. 2009) (recognizing “it would defeat the legislative scheme of chapter 986 to allow the juvenile court to depart ... for just any ‘reason’ ”).

In E.A.R., the supreme court reined in the discretion of trial judges to deviate upward from the DJJ recommendations by requiring a significant level of detail supported by both the record of the disposition hearing and the characteristics of various restrictiveness levels. Applying the statutory framework, the supreme court determined that to deviate from a DJJ recommendation, the trial court must:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels ... including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels (the DJJ possesses the expertise to provide this information); and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile—in the least restrictive setting—and maintaining the ability of the State to protect the public from further acts of delinquency.

E.A.R., 4 So.3d at 638; see also B.N. v. State, 39 So.3d 515, 517 (Fla. 4th DCA 2010).

Additionally, the trial court’s explanation for deviating from the DJJ’s recommendation

must provide a legally sufficient foundation for “disregarding” the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unre-habilitated child poses to the public.

Id.

“While a trial court, working routinely with juveniles, may have insight into the types of programs provided at certain juvenile detention facilities, E.A.R. requires a trial court place that knowledge on the record if the judge intends to rely on these types of findings to support deviations.” D.R.R. v. State, 94 So.3d 680, 683 (Fla. 4th DCA 2012) (internal citation omitted). These reasons must sufficiently explain why the court’s decision provides for the child “the most appropriate dispo-sitional service in the least restrictive available setting.” E.A.R., 4 So.3d at 638 (quoting § 985.03(21)).

Following E.A.R., courts have reversed sentencing rationales that would easily have passed muster in adult court. In S.B. v. State, we reversed a trial court’s deviation from the DJJ recommendation that was based on the “seriousness of offense to community; protection of community requires commitment; offense was aggressive, premeditated and willful; record and previous criminal history; no prospect for adequate protection of public and no likelihood for rehabilitation in a community service program.” 16 So.3d 256, 257 (Fla. 4th DCA 2009); see also D.B. v. State, 12 So.3d 875 (Fla. 4th DCA 2009) (relying on E.A.R. to reverse a departure sentence citing only the seriousness of the offense and protection of the community from such crimes); L.A.G. v. State, 58 So.3d 393, 394 (Fla. 2d DCA 2011) (recognizing that “the nature of the charge is not a sufficient reason to depart from the D.J.J.’s recommendation.”) (internal citation omitted).

Here, the trial judge focused excessively on the characterization of the crime, which sounds worse than the details of its execution, and the need for punishment and retribution. The trial judge emphasized the details of the note, writing as a justification for the sentence that it was serious, premeditated, and against persons, not property. Assuming that he did not have the power to do so, the trial judge did not explore the possibility of the child’s return to Pennsylvania under an interstate compact for juveniles recognized by section 985.802, Florida Statutes (2015). The trial court’s excessive concern with not giving in to bad juvenile behavior ignored the goal of juvenile justice to achieve the best outcome for the child. The trial judge myopically focused on the surface of bad behaviors while the experienced professionals looked behind the bad behaviors to design a path to a favorable outcome for the child. This record does not support a juvenile prison sentence. Although he characterized the DJJ recommendation as “wholly deficient,” the judge offered no discussion about why high risk residential commitment was superior to less restrictive sentencing options.

Based on the foregoing, we reverse the disposition order and the child’s placement in a maximum risk facility.' The child shall be released to the detention center in the 19th Judicial Circuit pending a detention hearing for placement pending the new disposition. The case is remanded to the circuit court for the imposition of a new disposition in accordance with section 985.01(c), Florida Statutes (2016): “[t]o provide an environment that fosters healthy social, emotional, intellectual, educational, and physical development; to ensure secure and safe custody; and to promote the health and well-being of all children under the state’s care,”

The Department of Juvenile Justice shall prepare an updated predisposition report for the trial court’s use in developing a plan of probation, pursuant to sections 985.0301(5)(b)l and 985.433(7)(c) & (9), Florida Statutes (2016). If possible, the juvenile’s probation shall be transferred to Pennsylvania, pursuant to the Interstate Compact on Juveniles, section 985.801, Florida Statutes, et seq.

All proceedings on remand shall be handled by a circuit judge other than the judge who imposed the sentence in this case.

May and Damoorgian, JJ., concur.


author: WOLF, J.

text:
    Damani SPENCER, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-5663.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2015.

      Baya Harrison, III, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jessica DaSilva, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his convictions for two counts of attempted second-degree murder, attempted robbery, and carrying a concealed firearm. He raises two issues on appeal. The first issue is whether the jury instruction on manslaughter given by the trial court constituted fundamental error because it failed to instruct on justifiable or excusable homicide. The second issue is whether fundamental error occurred because the evidence was wholly insufficient to prove carrying a concealed firearm. As to the first issue, we are reluctantly required to reverse the attempted second-degree murder convictions based on State v. Lucas, 645 So.2d 425 (Fla.1994). We, however, certify a question of great public importance as to this issue. As to the second issue, we affirm because appellant’s statements to police, coupled with the testimony of the victims, were sufficient evidence to uphold the conviction for carrying a concealed firearm.

Facts

Appellant’s convictions arose out of an attempted robbery during a drug transaction. The crimes occurred outside of a home. At the time of the incident, the male and female victims were seated in a vehicle. They were approached by appellant and another man who attempted to rob them at gunpoint. Appellant later gave a statement to police admitting that he was the man who walked up to the passenger side of the vehicle, pulled out a gun from his waistband, and demanded the drugs. As the victims drove away, appellant and the second man shot at their vehicle multiple times.

I. Jury Instruction

Appellant argues his convictions for second-degree murder are fundamental error because when giving the jury instruction for the lesser-included offense of attempted manslaughter, the court failed to instruct that appellant could not be guilty of attempted manslaughter if the attempted killings were either justifiable or excusable homicide. Counsel failed to request this instruction or to object to the jury instructions as given. However, in Moore v. State, 114 So.3d 486, 493 (Fla. 1st DCA 2013), review granted, 168 So.3d 229 (Fla. 2014), this court found that Lucas, 645 So.2d 425, held this error was fundamental if the defendant was convicted of either manslaughter or an offense one step removed from manslaughter, even where “there was no dispute as to whether the killing was justifiable or excusable homicide. [Moore’s] theory of defense was identity.” However, this court believed that Lucas was in contradiction to the well-established rule that “ ‘fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict. Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental errorId. (quoting Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008)). Thus, the Moore court certified a question of great public importance asking if the failure to instruct on justifiable or excusable homicide is fundamental error “even where the record reflects there was no dispute as to this issue and there was no evidence presented from which the jury could find justifiable or excusable homicide.” Id. at 494.

The same situation occurs in this case. There is nothing in this record that indicates justifiable or excusable homicide. We, therefore, certify the same question as certified in Moore as one of great public importance. Because appellant’s attempted second-degree murder convictions are only one step removed from attempted manslaughter, we are constrained to find that the error in failing to instruct on justifiable or excusable homicide was fundamental error. Thus, we reverse those convictions and remand for a new trial on the attempted second-degree murder counts.

II. Carrying a Concealed Firearm

Appellant argues his conviction for carrying a concealed firearm is fundamental error because there was no evidence whatsoever from which the jury could have found the concealment element of the offense. A “concealed firearm” is defined as “any firearm ... which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.” § 790.001(2), Fla. Stat. (2012).

In his statement to police, appellant said he walked up to the passenger side of the car with the gun “on my waist” or “in” his “waist.” He concedes this statement indicates that he carried the gun in his waistband. However, he argues he did not specify whether the gun was concealed under his shirt or otherwise obscured from view. He argues courts have held that a firearm that is visibly sticking out from a waistband or pocket is not concealed. See, e,g., Powell v. State, 369 So.2d 108, 109 (Fla. 1st DCA 1979). He further argues that neither eyewitness testified that he carried a concealed firearm. Thus, he argues there was no evidence whatsoever from which the jury could have found the element of concealment.

Appellant did not properly preserve this issue for appeal. “The state’s failure to prove all elements of a charged offense does not constitute ‘fundamental ei-ror’ which may be raised for the first time on appeal.” Sanders v. State, 765 So.2d 778 (Fla. 1st DCA 2000). Instead, in order to prove fundamental error, the evidence must be “insufficient to show that a crime was committed at all.” F.B. v. State, 852 So.2d 226, 230 (Fla.2003). Stated differently, “ ‘a conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error.’ ” Id. (quoting Troedel v. State, 462 So.2d 392, 399 (Fla.1984)). If the evidence at least “suggests” and “indicates” the essential elements of a crime were committed, there is no fundamental error. Young v. State, 141 So.3d 161, 165 (Fla.2013).

Here, the evidence suggests that appellant concealed the firearm. Appellant is correct that neither witness testified he was the gunman on the passenger side. However, appellant confessed to being the gunman on the passenger side, and the eyewitness’ testimony suggests that the passenger-side gunman had his firearm concealed. The male victim testified he watched the gunman come down the stairs, and he did not see a weapon on that person “at first,” but “as he approached ... I was looking to see if he pulled out money or anything, and then I realized he pulled out the gun and cocked it back.” This testimony suggests that the gun was concealed at first. The female victim similarly testified that the passenger-side gunman “pulled out the gun,” which suggests that it was pulled out from a concealed place, rather than being openly displayed.

The female witness believed appellant was the man standing on the driver’s side of the car. She never testified that she saw appellant with a gun. Appellant’s testimony and the forensic evidence, however, indicate that shots were fired by two shooters, appellant and the co-defendant. The fact that the female victim did not see a gun on appellant suggests that he had his gun concealed. Thus, appellant’s argument that there was “no evidence whatsoever” from which a jury could have found the gun was concealed is without merit. In fact, it appears there may have been sufficient evidence to sustain a conviction if the issue had properly been preserved. We, therefore, affirm as to this issue.

REVERSED IN PART, AFFIRMED IN PART, QUESTION CERTIFIED.

WETHERELL and MARSTILLER, JJ., concur.


author: PALMER, J.

text:
    Marianne KLEMISH, Individually, etc., et al., Appellants, v. Alex VILLACASTIN, M.D., et al., Appellees.
    No. 5D15-2574.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2016.

      Jessie L. Harrell and Bryan S. Gowdy, of Creed & Gowdy, P.A., Jacksonville, and Kevin J. Carden, Bounds Law Group, Maitland, for Appellants.
    Richard Benjamin Wilkes and David M. Caldevilla, of De La Parte, Gilbert & Bales, Tampa, for Appellee, Kindred Hospitals East, LLC d/b/a Kindred Hospital Ocala.
    No attorney for remaining Appellees.
   PALMER, J.

Frank and Marianne Klemish appeal the trial court’s non-final order compelling arbitration of their medical malpractice claims against Kindred Hospitals East, LLC (Hospital). Determining that the arbitration agreement entered into by the parties is void because it violates public policy, we reverse.

Marianne was admitted to the Hospital for therapy and post-surgical care. She signed an arbitration agreement entitled “ALTERNATIVE DISPUTE RESOLUTION AGREEMENT AND AMENDMENT TO ADMISSION AGREEMENT.” The agreement provided, in relevant part:

The Parties agree as follows:
2. Waiver of Right to a Trial. By entering into this Agreement the Parties agree to resolve any dispute covered by this Agreement using mediation and arbitration, and give up their right to have the dispute decided in a court of law before a judge or jury.
THE PARTIES UNDERSTAND THAT THE RULES OF PROCEDURE CONTAIN PROVISIONS FOR BOTH MEDIATION AND BINDING ARBITRATION. IF THE PARTIES ARE UNABLE TO REACH SETTLEMENT INFORMALLY, OR THROUGH MEDIATION, THE DISPUTE SHALL PROCEED TO BINDING ARBITRATION. BINDING ARBITRATION MEANS THAT THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL, INCLUDING THEIR RIGHT TO A JURY TRIAL, THEIR RIGHT TO TRIAL BY A JUDGE AND THEIR RIGHT TO APPEAL THE DECISION OF THE ARBITRATOR(S).
5. Pre-Request Procedures. Notwithstanding anything in this Agreement to the contrary, in connection with any claim for medical malpractice as defined in Florida Statutes Section 766,106, or any similar successor law, or any. claim or Request involving medical negligence, the Parties shall comply with the presuit investigation and presuit notification requirements under Chapter 766, Florida Statutes, or any similar successor laws (the “Presuit Statutes”), prior to filing a Request for ADR, unless - the Parties agree to waive the presuit requirements. For the purposes of this Agreement, all references in the Presuit Statutes to litigation shall be interpreted as applying to any arbitration hereunder. The confidentiality provisions of the Presuit Statutes shall apply to any arbitration under this Agreement,
6, Arbitration of Damages. If prior to the filing of a Request for ADR either Party offers to have Patient’s damages determined by arbitration in accordance with Chapter 766, Florida Statutes, and the other Party accepts such offer, the Parties shall arbitrate damages in accordance with Chapter 766, Florida Statutes, and the other terms and conditions of this Agreement shall not apply to such claim. If the recipient of such an offer to arbitrate damages rejects the offer, the provisions of this Agreement shall remain in full force and effect and the statutory limitations shall apply to any subsequently filed Request.
8. Attorneys’ Fees and Costs. The Parties will each bear their own attorneys’ fees and costs incurred in connection with any claim made under or arising out of this Agreement, except as otherwise permitted by law.

During her stay at the Hospital, Marianne allegedly suffered additional injuries and, as a result, the Flemishes filed this medical malpractice lawsuit against several doctors and entities, including the Hospital. The Hospital, in turn, filed several motions, including a “Motion to Dismiss or to Stay Proceedings Pending Arbitration and Alternative Motion to Dismiss and for More Definite Statement” and a “Motion to Order Arbitration and Stay Discovery.” Both motions sought relief based on the parties’ arbitration agreement. By written order, the trial court granted the Hospital relief, ordering that the matter proceed to arbitration pursuant to the terms of the parties’ arbitration agreement. This appeal followed.

The Flemishes argue that the trial court erred in ordering this matter to arbitration because their arbitration agreement is void as against public policy since it incorporates some, but not all, of the provisions of Florida’s Medical Malpractice Act (MMA). We agree.

“A trial court’s decision regarding whether an arbitration agreement or provision is void as against public policy presents ‘a pure question of law, subject to de novo review.’ ” Fi-Evergreen Woods, LLC v. Estate of Vrastil, 118 So.3d 859, 862 (Fla. 5th DCA 2013) (quoting Shotts v. OP Winter Haven, Inc,, 86 So.3d 456, 471 (Fla.2011)).

Our Supreme Court has held that public policy prohibits the enforcement of an arbitration provision that incorporates some, but not all, of the MMA’s arbitration provisions. Franks v. Bowers, 116 So.3d 1240, 1248 (Fla.2013). In Crespo v. Hernandez, 151 So.3d 495 (Fla. 5th DCA 2014), review granted, 171 So.3d 116 (Fla.2015), we applied Franks in holding that the arbitration agreement in that case violated public policy. In its entirety, the opinion reads:

The arbitration agreement at issue violates the public policy pronounced by the Legislature in the Medical Malpractice Act, chapter 766, Florida Statutes (2012), by failing to adopt the necessary statutory provisions. Franks v. Bowers, 116 So.3d 1240, 1248 (Fla.2013) (“Because the Legislature explicitly found that the MMA was necessary to lower the costs of medical care in this State, we find that any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions.”). Therefore, we reverse the order rendered by the trial court compelling binding arbitration pursuant to the arbitration agreement under review. We certify conflict with the decision of the Second District Court of Appeal in Santiago v. Baker, 135 So.3d 569 (Fla. 2d DCA 2014). We remand this case to the trial court for further proceedings.

Id. at 496.

Relying on Crespo, we reached a similar result in A.K. v. Orlando Health, Inc., 186 So.3d 626 (Fla. 5th DCA 2016). The A.K. opinion, in its entirety, reads as follows:

A.K. and W.K., individually and on behalf of their son, N.K., appeal from a nonfinal order compelling contractual arbitration. The arbitration provision in this case is substantially similar to the one we addressed in Crespo v. Hernandez, 151 So.3d 495 (Fla. 5th DCA 2014), revieio granted, 171 So.3d 116 (Fla.2015). As in Crespo, we hold that the arbitration agreement at issue here violates the public policy pronounced by the Legislature in the Medieal Malpractice Act, chapter 766, Florida Statutes (2012), by failing to adopt the necessary statutory provisions. Accordingly, we reverse the order compelling arbitration and remand to the trial court for further proceedings. We also certify that this decision conflicts with Santiago v. Baker, 135 So.3d 569 (Fla. 2d DCA 2014).

Id. We conclude that, based upon our holdings in Crespo and A.K., the instant arbitration agreement is unenforceable because it incorporates only some of the provisions of the MMA and, thus, violates public policy.

Here, in paragraph 5 of the parties’ arbitration agreement, the Hospital incorporated the MMA’s presuit requirements; therefore, under Crespo and A.K., the Hospital was required to incorporate all of the MMA’s arbitration provisions in order for the arbitration agreement to be valid. The Hospital failed to do so and, thus, the arbitration agreement is invalid. See also Franks, 116 So.3d at 1248 (“Because the Legislature explicitly found that the MMA was necessary to lower the costs of medical care in this State, we find that any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions.”).

We reject the Hospital’s argument that, under the instant agreement’s sever-ability clause, any invalid provisions can be severed, and, as a result, the instant matter can proceed to arbitration. If the invalid provisions were severed, the trial court would be required to rewrite the parties’ arbitration agreement by inserting the MMA’s arbitration provisions. Florida courts do not authorize such action. See Shotts, 86 So.3d at 478 (“Based on the foregoing, we conclude that the limitations of remedies provision in the present case that calls for the imposition of the AHLA rules is not' severable from the remainder of the agreement. Although the arbitration agreement in this case contains a sev-erability clause, the AHLA provision goes to the very essence of the agreement. If the provision were to be severed, the trial court would be forced to rewrite the agreement and to add an entirely new set of procedural rules and burdens and standards, a job that the trial court is not tasked to do.”). See also Estate of Yetta Novosett v. Arc Vill. II, LLC, 189 So.3d 895 (Fla. 5th DCA 2016); Estate of Reinshagen ex rel. Reinshagen v. WRYP ALF, LLC, 190 So.3d 224 (Fla. 5th DCA 2016).

Accordingly, we reverse the trial court’s arbitration order and remand for further proceedings consistent with this opinion. As we did in Crespo and A.K., we certify conflict with the decision of the Second District Court of Appeal in Santiago v. Baker, 135 So.3d 569 (Fla. 2d DCA 2014).

REVERSED AND REMANDED; CONFLICT CERTIFIED.

TORPY and EVANDER, JJ., concur. ■

      . Marianne appears individually and as guardian of her minor daughter, Skyla.

        . The severability clause provides:
      If any provision of this Agreement is determined by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, the remaining provisions, and partially invalid or unenforceable provisions, to the extent valid and enforceable, shall nevertheless be binding and valid and enforceable.


author: MORRIS, Judge.

text:
    Erick VAN LOAN, John J. Morelli, Charles Roodhouse, and Kerry L. Koontz, Appellants, v. HEATHER HILLS PROPERTY OWNERS ASSOCIATION, INC.; and Rick and Chris Stephens, LLC, a Florida Limited Liability Company, Appellees.
    Case No. 2D15-5430
    District Court of Appeal of Florida, Second District.
    Opinion filed December 30, 2016.
    Rehearing Denied March 16, 2017

      Nicholas F. Karatinos of Law Office of Nicholas F. Karatinos, Lutz, for Appellants.
    J. Allen Bobo and Jody B. Gabel of Lutz, Bobo & Telfair, P.A., Sarasota, for Appellees.
   MORRIS, Judge.

Erik Van Loan, John J. Morelli, Charles Roodhouse, and Kerry L. Koontz (the Homeowners) appeal a final judgment dismissing their complaint with prejudice. The Homeowners filed suit after the Heather Hills Property Owners Association (HHPOA) recorded a declaration of amended restrictive covenants running with the land that—on its face—appears to attach to the titles of all 300 lots in the Heather Hills Estates group of subdivisions (Heather Hills), including the lots owned by the Homeowners. Because we conclude that the Homeowners’ complaint sufficiently stated causes of action for declaratory relief, to quiet title, and for damages for slander of title and that those causes of action were not refuted by the exhibits attached to their complaint, we reverse the trial court’s order dismissing the complaint.

BACKGROUND

The Homeowners own individual lots and homes in Heather Hills which was founded in 1967 in Manatee County, Florida. Heather Hills is comprised of six mobile home residential subdivisions. Each subdivision had a separately recorded plat and a set of restoictive covenants that was filed at the time the subdivision was developed. Each original plat and original set of restrictive covenants reserved the right to amend the restrictive covenants to the developer or its successors. Neither the plats nor the original sets of restrictive covenants contain residential age restrictions. Further, the original sets of restrictive covenants which were recorded on the titles of each lot in Heather Hills do not mention a homeowners’ association.

The HHPOA was incorporated in 1969 with the stated purpose of promoting recreational and charitable interests for those living in Heather Hills. Membership was voluntary, and the Homeowners have thus far chosen not to join it.

In 2012, the HHPOA amended its articles of incorporation to provide that: “The record title holder of all lots [in Heather Hills] shall be members.” The amended articles also changed the purpose of the HHPOA to managing and operating Heather Hills as “a community intended and operated as ‘housing for older persons’ within the meaning of the Fair Housing Amendments Act of 1988, 42 U.S.C. Sections 3601, et seq., and subsequent amendments thereto.” The amended articles stated that the HHPOA would promulgate rules and regulations to effectuate that purpose. The amended articles were filed with the Florida. Secretary of State but were not recorded against the titles of the lot owners.

Around the same time, the HHPOA adopted an “Additional Declaration of Covenants, Conditions^] and Restrictions” which it then recorded in the Manatee County Public Records. These amended restrictive covenants applied to each of the six subdivisions within Heather Hills and were recorded against the title to each and every lot therein. The declaration of amended restrictive covenants purported to convert Heather Hills to an over-55 community. The amended restrictive covenants require that at least one person residing in each dwelling must be over the age of fifty-five, and they provide the HHPOA with the power “to approve in writing all sales, transfers of title, or leases of a lot, blockf,] or parcel” after proof of a buyer’s age is provided. The declaration expressly states that the amended restrictive covenants are “applicable to and binding upon the lots of all consenting property owners situated in Heather Hills.” However, the declaration subsequently states that “the owners who consent to and join in this Declaration do hereby impose upon the lots, blocks[,] or parcels of such owners in Heather Hills ... and all members of [the HHPOA]” the covenants, restrictions, and conditions set forth in the document. (Emphasis added.) The declaration also provides that the amended restrictive covenants

shall run with the land and be binding upon ,.. the present lot owners who have contemporaneously joined in the making, and have consented to the recording of this Declaration, and on each of said lot owners’ respective heirs, successors, personal representatives, grantees and assigns, and on all owners who hereafter evidence their intention to bind themselves and their property to this Declaration, and amendments thereto, by executing and recording a Consent and Joinder Instrument in the official format promulgated by the ... Board of Directors, and on each of such owners’ respective heirs, successors, personal representatives, grantees and assigns; and on all persons or parties claiming by, through or under any of said owners. ■

Because the Homeowners had not consented to becoming members of the HHPOA or to living in an over-55 community, they filed suit bringing claims for declaratory relief, to quiet title, and for damages for slander of title. The HHPOA moved to dismiss the complaint asserting that the declaration of amended restrictive covenants, which was attached to the Homeowners’ complaint, demonstrated on its face that it applied only to consenting lot owners and, therefore, that because the Homeowners asserted they did not consent and were not members of the HHPOA, the amended restrictive covenants did not apply to them.

The trial court agreed and dismissed the complaint without prejudice, finding that the claims to quiet title and for damages for slander of title failed to state causes of action based on the declaration of amended restrictive covenants. The trial court found that the claim for declaratory relief, which was based on the allegation that the defendants were misrepresenting that Heather Hills was an age-restricted community, was moot.

The Homeowners then filed an amended and second amended complaint again asserting claims for declaratory relief, to quiet title, and for damages for slander of title. As with the original complaint, the Homeowners attached the declaration of amended restrictive covenants. However, in the claim for declaratory relief in the second amended complaint, the Homeowners argued that the HHPOA lacked authority to mandate membership in the HHPOA and also lacked authority to adopt new restrictive covenants for Heather Hills. The Homeowners argued that a declaratory judgment was necessary because when reading the HHPOA’s amended articles of incorporation in conjunction with the declaration of amended restrictive covenants, it was unclear which lot owners were subject to the amended restrictive covenants.

The HHPOA moved to dismiss raising the same argument it raised in the first motion to dismiss. A second trial court judge heard the HHPOA’s second motion to dismiss and, after reviewing the first order of dismissal, entered the order on appeal dismissing the Homeowners’ complaint with prejudice. The trial court found that “[t]he covenants indicate on their face that they apply only to lot owners who have consented to bind their respective parcels.”

ANALYSIS

When considering a motion to dismiss for failure to state a cause of action, a trial court is ordinarily bound to the allegations within the four corners of the complaint and it must accept the material allegations as true. Consuegra v. Lloyd’s Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001). However, where an exhibit attached to a complaint contradicts the allegations in the complaint, the exhibits control and may form the basis for a motion to dismiss. See Fladell v. Palm Beach Cty. Canvassing Bd., 772 So.2d 1240, 1242 (Fla. 2000); Hunt Ridge at Tall Pines, Inc, v. Hall, 766 So.2d 399, 400 (Fla. 2d DCA 2000). But the trial court must not speculate as to whether the plaintiff can prove its allegations; rather, the question is whether, assuming that the allegations are true, the plaintiff would be entitled to relief. See Meadows Cmty. Ass’n v. Russell-Tutty, 928 So. 2d 1276, 1279 (Fla. 2d DCA 2006). A trial court should not dismiss a complaint for failure to state a cause of action unless it can be established that there is no theory that would support the plaintiffs request for relief. Id. at 1280. We conduct de novo review of an order of dismissal for failure to state a cause of action. Id. at 1278.

I. Claim for Declaratory Judgment

The purpose of a declaratory judgment is to determine the rights and duties of a party without resorting to a tort or contract action. See Watson v. Claughton, 160 Fla. 217, 34 So.2d 243, 245 (1948) (en banc). A claim for a declaratory judgment states a cause of action where the plaintiff can demonstrate that he or she is in doubt about the existence or nonexistence of some right, status, immunity, power, or privilege, that he or she is entitled to have the doubt removed, and that there is a bona fide, actual, present, and practical need for the declaration. Murphy v. Bay Colony Prop. Owners Ass’n, 12 So.3d 924, 926 (Fla. 2d DCA 2009).

Here, the Homeowners pleaded that they were in doubt about (1) their rights under the amended restrictive covenants to freely alienate their properties without the HHPOA’s approval and (2) the legality of the HHPOA’s attempt to mandate membership in the HHPOA and to impose age restrictions within Heather Hills. The declaration of amended restrictive covenants was recorded against the title to every lot in Heather Hills, and while the declaration states in some places that the amended restrictive covenants only apply to consenting lot owners, there is no indication as to which lot owners consented. That lack of clarification is exacerbated by the fact that the declaration also states that the consenting lot owners “do hereby impose upon the lots, blocks, or parcels of such owners ... and all members of [HHPOA] ” the covenants, agreements, restrictions and conditions set forth in the declaration. (Emphasis added.) The implication then is that the amended restrictive covenants apply to all members of the HHPOA regardless of the members’ individual consent. And because there is no explanation in the declaration as to which lot owners are members of the HHPOA, the declaration (i.e., the exhibit attached to the complaint) does not on its face refute the allegations of the complaint relating to the necessity for a declaratory judgment. Indeed, when the declaration of amended restrictive covenants is read in conjunction with the HHPOA’s amended articles of incorporation—which expressly state that all lot owners in Heather Hills shall be members of the HHPOA—the Homeowners’ claim of doubt as to their rights is reasonable. This is especially true here because the amended restrictive covenants run with the land and the ambiguity in the declaration of amended restrictive covenants places a cloud on the titles of the Homeowners’ lots. See Caulk v. Orange County, 661 So.2d 932, 933 (Fla. 5th DCA 1995) (defining a covenant running with the land as one which binds the heirs and assigns of a covenantor).

The Homeowners also alleged that they purchased their lots prior to the creation of the HHPOA and thus were only subject to the developer’s original restrictive covenants. This is important because the original set of covenants does not mention a homeowners’ association nor does it provide any third parties or future homeowners’ associations with the right to amend the restrictive covenants. Rather, the right to modify or amend the restrictive covenants was expressly reserved to the developer and its successors in interest. Because there was no express delegation of authority to the HHPOA to amend the restrictive covenants, the restrictive covenants can only be amended by the consent of all the property owners in the subdivision. See Roth v. Springlake II Homeowners Ass’n, 533 So. 2d 819, 820 (Fla. 4th DCA 1988) (explaining that subdivision restrictions “normally cannot be amended without the consent of all the property owners” (citing Harwick v. Indian Creek Country Club, 142 So.2d 128 (Fla. 3d DCA 1962))). And because the Homeowners alleged that they did not consent to the amendments, there is a legitimate question as to whether the declaration of amended restrictive covenants was effective at all.

Consequently, we conclude that the Homeowners sufficiently stated a cause of action for a declaratory judgment and that the trial court erred by dismissing this count with prejudice.

II. Claim To Quiet Title

In order to state a sufficient claim to quiet title, a plaintiff must demonstrate (1) that he or she owns the title to the land in controversy; (2) that a cloud on the title exists; (3) that the facts give the claim apparent validity; and (4) that the facts show that the claim is invalid. Stark v, Frayer, 67 So.2d 237, 238 (Fla. 1953); Woodruff v. Taylor, 118 So.2d 822, 822 (Fla. 2d DCA 1960); see also §§ 65.021, .061, Fla. Stat. (2015). As we have already explained, because the declaration of amended restrictive covenants does not clearly indicate which lot owners consented to the applicability of the amended restrictive covenants and because the declaration states that the amended restrictive covenants are imposed on “all members of [the HHPOA]” without any clarification as to which lot owners are members, the Homeowners’ lots appear to be subject to the amended restrictive covenants. And because the amended restrictive covenants expressly state that they run with the land, they constitute a cloud upon the Homeowners’ titles. These facts, in conjunction with the Homeowners’ allegations that they neither consented to being members of the HHPOA nor to the imposition of the amended restrictive covenants, sufficiently stated a cause of action for a claim to quiet title, and nothing in the attached exhibits to the complaint refuted the claim. The trial court therefore erred in dismissing the claim with prejudice.

III. Claim for Damages for Slander of Title

A claim for slander of title requires a plaintiff to show that (1) a defendant published or communicated a falsehood to a third party, (2) the defendant knew or reasonably should have known that the falsehood would likely result in inducing others not to deal with the plaintiff, (3) the falsehood did materially and substantially induce others not to deal with the plaintiff, and (4) the falsehood resulted in damages that were proximately caused by the published falsehood. McAllister v. Breakers Seville Ass’n, 981 So.2d 566, 573 (Fla. 4th DCA 2008); Bothmann v. Harrington, 458 So.2d 1163,1168 (Fla. 3d DCA 1984).

The second amended complaint alleged that by filing the amended articles of incorporation and by recording the declaration of' amended restrictive covenants which attaches to the Homeowners’ lots, the HHPOA falsely declared to the public that membership in the HHPOA was mandatory, that the HHPOA controlled the lots in Heather Hills, that the Homeowners were mandatory members of the HHPOA due to their ownership of lots within Heather Hills, that the Homeowners’ lots were subject to an over-55 age restriction, and that the HHPOA possesses the authority to modify or amend the restrictive covenants. The claim for slander of title also alleged that since 2008, the defendants have posted signs at the entrance to Heather Hills and distributed fliers falsely stating that Heather Hills is a deed-restricted community open only to persons over the age of fifty-five. The second amended complaint also alleged that the Homeowners were damaged by the loss of value in their lots and their inability to sell the lots or, at the very least, convey them with clear title without having to obtain approval of the HHPOA based on the age of the buyer.

Again, the lack of clarity in the declaration of amended restrictive covenants results in .the appearance that the Homeowners’ lots are subject to the amended restrictive covenants. Neither the public nor potential buyers would be aware after reading the HHPOA’s amended articles of incorporation and the recorded declaration of amended restrictive covenants that the Homeowners’ lots were not subject to the amended restrictive covenants. Further, nothing in the exhibits attached to the complaint refute the Homeowners’ allegations regarding the posting of signs and distribution of fliers falsely promoting Heather Hills as an over-55 community. Accordingly, the Homeowners sufficiently stated a cause of action for slander of title, and the trial court erred by dismissing the claim with prejudice.

IY. Conclusion

The Homeowners’ claims for a declaratory judgment, to quiet title, and for damages for slander of title sufficiently stated causes of action and were not refuted by the exhibits attached to the second amended complaint. We therefore reverse the trial court’s order dismissing the claims with prejudice.

Reversed and remanded for proceedings in conformance herewith.

YILLANTI, C.J., and NORTHCUTT, J., Concur.

      . Appellee, Rick and Chris Stephens LLC, is the successor in interest to the original developer.

      . The amended restrictive covenants expressly state that they do not apply to fourteen lots that are identified only by lot number, block, and unit number. Neither party addresses these excepted lots but as evidenced by these proceedings, it apparently does not include the homeowners’ lots.

      . Additionally, the HHPOA recorded a resolution and affidavit indicating that two-thirds of the HHPOA members consented to having Heather Hills function as an over-55 community.

      .The Homeowners also brought a claim for injunctive relief arguing that the HHPOA and Rick and Chris Stephens, LLC, were misrepresenting that the community was an age-restricted community.

      . The Homeowners did not include a claim for injunctive relief in their amended complaints.


text:
    WHITBURN, LLC, Appellant, v. BANK OF AMERICA, N.A., Carlos Ramirez; Ederle Greene Ramirez; Boyette Creek Homeowners Association, Inc., Appellees.
    Case No. 2D15-1639
    2D15-4046
    District Court of Appeal of Florida, Second District.
    Opinion filed January 20, 2017
    Rehearing Denied April 12, 2017
    Jamie A. Cummings and Heather A. De-Grave of Walters Levine Klingensmith & Thomson, P.A., Tampa, for Appellant.
    Alan M. Pierce of Liebler Gonzalez & Portuondo, Miami, for Appellee, Bank of America, N.A.
    No appearance for remaining Appellees.
   PER CURIAM.

In appeal number 2D15-1639, we affirm the order on appeal denying Whitburn, LLC’s motion to intervene in the underlying foreclosure proceeding. See Weber v. PennyMac Loan Trust 2010-NPL1, 193 So.3d 1084 (Fla. 2d DCA 2016) (citing Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So.3d 1087 (Fla. 2d DCA 2015)). In appeal number 2D15-4046, we dismiss Whitburn’s appeal from the final judgment of foreclosure entered in that proceeding. See id.

Affirmed in part and dismissed in part.

NORTHCUTT, WALLACE, and SALARIO, JJ., Concur.


text:
    Ravis M. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 2D15-4639, 2D16-2574
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2017.
    Rehearing Denied April 27, 2017

      Ravis M. Williams, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The circuit court’s order in case 2D15-4639 is affirmed. The petition for writ of habeas corpus in case 2D16-2574 is denied.

SILBERMAN, CRENSHAW, and SALARIO, JJ., Concur.


text:
    John F. DOANE, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 3D15-2707
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.
    Rehearing Denied April 6, 2017
    Gary E. Doane (Kissimmee), for appellant.
    Maurice Wutscher LLP, and Christopher P. Hahn and Hector E. Lora, for appellee.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Deakter v, Menendez, 830 So.2d 124,127 (Fla. 3d DCA 2002).


author: SLEET, Judge.

text:
    Vanessa Joan RAMADON, Appellant, v. Richard RAMADON, Appellee.
    Case No. 2D14-5843
    District Court of Appeal of Florida, Second District.
    Opinion filed February 17, 2017.
    Rehearing Denied March 22, 2017

      Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for Appellant.
    Reuben A. Doupé of Klaus Doupé P.A., Naples, for Appellee.
   SLEET, Judge.

Vanessa Ramadon, the Former Wife, challenges the trial court’s final judgment of bifurcated issues related to the dissolution of her marriage to Richard Ramadon, the Former Husband. The trial court previously entered a final judgment dissolving the marriage but bifurcating and reserving for a later time the resolution of the financial issues of equitable distribution, alimony, and attorney fees and costs. Prior to the final hearing on the bifurcated issues, the Former Wife moved for a continuance, but the trial court denied the motion. Because this resulted in an injustice to the Former Wife, we reverse.

In 2003, after twenty-seven years of marriage, the Former Husband filed for dissolution. In 2004, the Former Wife filed a counterpetition, seeking alimony and an equitable distribution of the parties’ assets. The litigation between the parties dragged on for six more years before the trial court entered a final judgment dissolving the marriage on April 13, 2010. On that same day, the trial court entered an order on judicial case management, appointing a forensic accountant and directing the parties to

comply with the requests of the forensic accountant] as they apply to this matter, including but not limited to requests involving ... (a) the parties’ assets; (b) the value of the parties’ assets to include appraisals if necessary; (c) the accountant’s determination of money and funds that currently exist and have existed in the past; (d) the accountant’s determination of where any missing money may have gone; [and] (e) the accountant’s evaluation of the parties’ debts.

On March 9, 2011, upon the Former Wife’s motion for temporary attorney fees and costs, the trial court entered an order granting the motion, again directing the parties to obtain a forensic accounting, and ordering the Former Husband to pay $10,000 toward the accountant fees and $15,000 toward the Former Wife’s attorney fees. In April 2012, the Former Husband was found in contempt for willfully failing to pay these fees.

At the contempt hearing, the trial court and the parties acknowledged that some financial evaluation had been conducted, but the trial court stated that “the accounting has never been good on [the Former Husband’s] corporation.” The court further noted that a financial accounting of the corporation was required to determine its value and whether it was a marital or nonmarital asset. The Former Husband testified at the hearing that he had not yet provided all of his business financial records for an accounting in conjunction with the trial court’s previous orders.

On April 3, 2013, the trial court found that the Former Husband had failed to make any temporary support payments to the Former Wife from 2011 through February 2013, resulting in a temporary support arrearage of $36,000. The court, however, ruled that the arrearage amount would be dealt with in the equitable distribution determination at the final hearing.

On March 5, 2014, upon a motion by the Former Husband seeking a partial equitable distribution of the parties’ marital real estate, the trial court awarded the Former Husband a house purchased during the marriage which was valued at $325,000 and which the Former Husband stipulated was a marital asset. The trial court noted that this distribution “shall be incorporated and included in the future equitable distribution of all other marital assets and liabilities” and that it did not amount to “a finding of an unequal distribution in favor of either party.”

In August 2014, less than two months before the scheduled final hearing, the Former Wife filed several motions, including a motion to continue and a motion to order the Former Husband to pay her legal fees and costs, which would include the accounting fees. The Former Husband had still not provided his business financial records for a forensic accounting. During the motions hearing, an accountant retained by the Former Wife testified that the Former Husband had not turned over his financial documents and that such documents were essential to the accounting. The accountant further testified that he would require $15,000 to perform the accounting and that he would not be available to do the work until the middle of October 2014. The court denied all of the Former Wife’s motions.

Less than one month before the final healing, the trial court granted a motion to withdraw filed by the Former Wife’s attorney. Within two weeks, the Former Wife had retained a new attorney who entered a limited appearance and filed an urgent motion to continue the final hearing to allow new counsel time to prepare for trial. The motion specifically alleged the need for the forensic accounting of the Former Husband’s business. That motion was denied.

Ultimately, the Former Wife appeared at the final hearing telephonically and without, legal representation. The trial court, however, would not allow her to argue the need for a continuance based upon the lack of an accounting and would not permit testimony from her due to her violation of a previous order by the trial court to appear at the hearing in person. Although the trial court acknowledged that the Former Wife was appearing pro se, it did not inform her of her right to represent herself, present evidence, or argue on her own behalf. The Former Wife, being unable to testify, did not present any evidence, and the court dismissed her coun-terpetition by granting the Former Husband’s motion for directed verdict. The trial court did not revisit the issues of the equitable distribution of the $325,000 home to the Former Husband or the Former Husband’s $36,000 support arrearage.

On appeal, the Former Wife argues that the trial court abused its discretion by denying her motion for continuance. See Cargile-Schrage v. Schrage, 908 So.2d 528, 529 (Fla. 4th DCA 2005) (“The decision to grant or deny a continuance is within the trial court’s discretion and that decision will not be disturbed on appeal absent an abuse of discretion.” (quoting Taylor v. Inst, for Med. Weight Loss, 863 So.2d 398, 400 (Fla. 4th DCA 2003))).

In determining whether the trial judge has abused his [or her] discretion, a reviewing court should consider “whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance.”

Id. (quoting Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998)). With regard to the first consideration, this court has recognized that “in certain circumstances, the denial [of a motion to continue] may create an injustice which outweighs the policy of not disturbing the trial court’s ruling.” Fasig v. Fasig, 830 So.2d 839, 841 (Fla. 2d DCA 2002); see also Silverman v. Millner, 614 So.2d 77, 78 (Fla. 3d DCA 1987) (“Special circumstances sometimes exist ... in which the denial of a motion for continuance creates an injustice for the movant. In these circumstances, this court’s obligation to rectify the injustice outweighs its policy of not disturbing a trial court’s ruling on a continuance, in particular, in cases where the opposing party would suffer no injury or great inconvenience as a result of a continuance.” (citations omitted)).

With this in mind, we conclude that the trial court abused its discretion by denying the Former Wife’s motion for continuance. However, we note that we are not unsympathetic to the trial court’s difficult task of navigating a protracted, contentious divorce case involving multiple attorneys and two parties who both engaged in dilatory tactics. But under the specific facts of this case, the denial of the continuance created a clear injustice for the Former Wife.

In her motion, the Former Wife specifically alleged that a forensic accounting of the Former Husband’s business had never been performed. That circumstance was in no way attributable to the actions of the Former Wife. Instead, it was the direct result of the Former Husband’s continued refusal to provide his business financial records for a forensic accounting. Without the Former Husband’s records and such an accounting, the Former Wife was left with no evidence upon which to attempt to establish the Former Husband’s ability to pay alimony and attorney fees and costs. As a result, the trial court awarded her no alimony after twenty-seven years of marriage. See § 61.08(4), Fla. Stat. (2014) (“For purposes of determining alimony, there is a rebuttable presumption that a ... long-term marriage is a marriage having a duration of [seventeen] years or greater.”); see also §§ 61.08(8) (stating that “[permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in subsection (2)” of the statute, which include subsection (2)(d), “[t]he financial resources of each party,” and subsection (2)(i), “[a]ll sources of income available to either party’); .08(7) (allowing for the award of du-rational alimony following a long-term marriage “if there is no ongoing need for support on a permanent basis”).

Additionally, the Former Wife needed the Former Husband’s business financial records to establish any right she may have to the business for purposes of equitable distribution. See § 61.075(3) (“In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence.”)- Without that accounting, the Former Husband was awarded all of the parties’ marital real property, and the Former Wife was awarded nothing in the equitable distribution. This was an injustice to the Former Wife—especially where the trial court never revisited the issue of its distribution to the Former Husband of a $325,000 home that was marital property or the Former Husband’s $36,000 support arrearage.

With regard to the second consideration of Cargile-Schrage, we conclude that the cause for the Former Wife’s “request for continuance was unforeseeable by the mov-ant and not the result of dilatory practices.” See 908 So.2d at 529 (quoting Fleming, 710 So.2d at 603). Despite the fact that the trial court repeatedly found both parties to be dilatory in complying with its orders, any predictability in the Former Husband’s history of failing to comply with discovery should not prevent the Former Wife from having an opportunity to complete the forensic accounting. The Former Wife is not to blame for the fact that there was no enforcement mechanism in place to ensure the Former Husband’s compliance.

Moreover, two months before trial, the accountant retained by the Former Wife provided sworn unrebutted testimony that he could not conduct an accounting of the Former Husband’s business without the Former Husband’s financial records. He additionally testified that based on his current workload, he could not start the work until at least the date of the final hearing. As such, the continuance cannot be considered a meaningless attempt by the Former Wife to prolong the already protracted litigation. The Former Wife established a specific need for the continuance and a time frame in which to fulfill that need.

Finally, we must determine whether the Former Husband would have suffered any prejudice or inconvenience as a result of a continuance. See Cargile-Schrage, 908 So.2d at 529. We conclude that he would not have. The parties have been divorced since 2010, and the Former Husband has had possession of all marital real property since 2013. Accordingly, other than a delay and the possible expenditure of attorney fees, there is no real prejudice to the Former Husband.

Because the trial court abused its discretion in denying the Former Wife’s motion to continue, we must reverse the final judgment and remand for further proceedings consistent with this opinion. We encourage the trial court to set strict discovery deadlines and impose appropriate sanctions for noncompliance upon both parties should they continue to disobey the court’s orders.

Reversed and remanded.

CASANUEVA and KHOUZAM, JJ., Concur.

      . Although the Former Wife raises other issues on appeal, our resolution of this issue makes it unnecessary for us to address them,