author: Osterhaus, J.

text:
    Dontavious Lamar COPELAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5621
    District Court of Appeal of Florida, First District.
    February 9, 2018 Rehearing Denied March 7, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Osterhaus, J.

Dontavious Lamar Copeland appeals the life sentence imposed for first-degree murder after the Florida Supreme Court reversed and remanded his case for resentencing under Horsley v. State , 160 So.3d 393 (Fla. 2015). The State also cross-appeals, arguing that the sentence unlawfully provided for judicial review after 25 years. We reverse and remand for resentencing because the sentence is unlawful.

I.

Mr. Copeland was seventeen years old when he killed Jearicka Mack, a fifteen-year-old bystander at the scene of a parking lot fight outside a club. See Copeland v. State , 129 So.3d 508, 509 (Fla. 1st DCA 2014). Following a guilty verdict on a first degree murder charge, the trial court sentenced Mr. Copeland to life in prison without the possibility of parole. Id. at 510. This court affirmed. Id. at 511. However, in the wake of a new juvenile sentencing law being enacted, the Florida Supreme Court quashed our decision and remanded for "resentencing in conformance with the framework established in chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes." Copeland v. State , 177 So.3d 1264 (Fla. 2015).

At the re-sentencing hearing, the State and Mr. Copeland presented evidence to the trial court and arguments on the factors set forth in § 921.1401(2). After weighing the factors, the court determined that Mr. Copeland's crime and situation were consistent with the uncommon circumstance where life imprisonment constitutes an appropriate sentence. It sentenced him to life in prison. Over the State's objection, the trial court additionally imposed judicial review of Mr. Copeland's sentence after 25 years. See § 921.1402(2)(a), Fla. Stat.

After sentencing, Mr. Copeland filed two motions to correct sentencing errors. The first motion argued that a jury verdict was needed on the sentencing factors in order to authorize his sentence under § 921.1401. The trial court denied this motion. The second motion involved the sentence's provision for a judicial review hearing after 25 years. Mr. Copeland argued that the trial court made a scrivener's error by stating that Mr. Copeland was "entitled to" a review hearing, instead of saying that he was "eligible for" a review hearing. At a subsequent hearing, the State argued that Mr. Copeland was neither "entitled to," nor "eligible for" a 25-year review hearing, and that it had already cross-appealed the issue. The trial court denied the motion.

As it now stands, Mr. Copeland appeals the life sentence and the State cross-appeals the trial court's decision to grant a 25-year review hearing to Mr. Copeland.

II.

A.

Mr. Copeland argues that that his rights to a jury trial were violated at resentencing because the trial court considered the § 921.1401(2) sentencing factors, instead of a jury. Although the terms of this law provide that "the court shall consider factors relevant to the offense and the defendant's youth and attendant circumstances," Mr. Copeland argues that the Sixth Amendment to the United States Constitution, as interpreted in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Hurst v. State , 202 So.3d 40 (Fla. 2016), and article I, section 22 of the Florida Constitution, require a jury to consider these sentencing factors before a life-sentence is imposed. We disagree with his argument for the reasons set forth in Beckman v. State , 230 So.3d 77, 94-97 (Fla. 3d DCA 2017). See also Horsley , 160 So.3d at 409 ("We conclude that applying chapter 2014-220, Laws of Florida to offenders like Horsley is the only way to comply with the commandment of the United States Supreme Court and to effectuate the intent of our Legislature."); Miller v. Alabama , 567 U.S. 460, 489, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (noting that " Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles") (emphasis added).

B.

We agree with the parties, however, regarding error associated with the trial court's imposition of a 25-year judicial review. Section 921.1402(2)(a) entitles a juvenile convicted of first-degree murder to a review of his or her sentence after 25 years, unless "he or she has previously been convicted of [certain separate] offenses," which includes armed robbery. Here, the court recognized that Mr. Copeland was convicted of an earlier armed robbery. For this reason, Mr. Copeland was "not entitled to" or "eligible for" a review of his sentence after 25 years. § 921.1402(2)(a), Fla. Stat.; Fla. R. Crim. P. 3.781(c)(2) (providing that a defendant convicted of a § 775.082(1)(b) 1. offense "shall not be eligible for" a sentence review hearing if previously convicted of an offense found in § 921.1402(2)(a) ). Because the sentence imposed by the trial court unlawfully included a 25-year sentence review, we must reverse and remand for resentencing. This result additionally resolves Mr. Copeland's contention that the trial court impermissibly factored in a 25-year sentence review in deciding to impose a life sentence. Upon remand, the trial court will have the opportunity to resentence Mr. Copeland without including judicial review of his sentence 25 years from now.

Finally, we reject Mr. Copeland's argument that § 921.1402(2)(a)'s prohibition on 25-year sentence reviews for juveniles with certain prior-felony convictions is unconstitutional. Without reaching the merits of his Equal Protection and Eighth Amendment arguments, we recognize that the Florida Supreme Court issued explicit instructions to the trial court that it resentence Mr. Copeland "in conformance with the framework established in chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes." Copeland , 177 So.3d at 1264. These remand instructions necessarily include applying § 921.1402(2)(a)'s express prohibition on 25-year reviews for prior offenders. If Mr. Copeland had a constitutional problem with being resentenced under this framework with its sentence-review prohibition, he should have argued that point to the Florida Supreme Court before it remanded his case. Now, on remand, it is hardly this court's or the trial court's place to depart from the sentencing framework explicitly ordered by the Florida Supreme Court, or to declare its remand order unconstitutional. See Blackhawk Heating & Plumbing Co. Inc., v. Data Lease Fin. Corp., 328 So.2d 825, 827 (Fla. 1975) (noting that trial courts lack authority to deviate from an appellate court's mandate); Ketcher v. Ketcher , 198 So.3d 1061, 1063 (Fla. 1st DCA 2016) ("Where, as here, the final judgment is reversed and remanded with specific instructions, the lower court has authority to conduct further proceedings ... but the court cannot exceed the specific bounds of that instruction.").

III.

For the foregoing reasons, we vacate Mr. Copeland's sentence and remand for resentencing.

REVERSED AND REMANDED .

Lewis and Bilbrey, JJ., concur.


source: Caselaw Access Project

author: ROTHENBERG, C.J.

license: Public Domain

text:
    Jerry FELLER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, etc., et al., Appellees.
    No. 3D16-2389
    District Court of Appeal of Florida, Third District.
    Opinion filed February 14, 2018
    Burlington & Rockenbach, P.A., and Bard D. Rockenbach and Nichole J. Segal (West Palm Beach); Schlesinger Law Offices, P.A., and Jonathan R. Gdanski (Fort Lauderdale), for appellant.
    King & Spalding LLP, and William L. Durham II and Val Leppert (Atlanta, Georgia), for appellee R.J. Reynolds Tobacco Company;
    Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael (Washington, DC), for appellee Philip Morris USA Inc.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   ROTHENBERG, C.J.

The plaintiff below, Jerry Feller ("Mr. Feller"), who passed away while his Engle-progeny action was pending, appeals the trial court's order: (1) granting with prejudice the motion to dismiss sought by R.J. Reynolds Tobacco Company ("R.J. Reynolds") and Philip Morris USA, Inc. ("Philip Morris") (collectively, "the tobacco companies") based on Mr. Feller's counsel's failure to file a motion for substitution of the proper party within ninety days after Mr. Feller's death was suggested upon the record as required by Florida Rule of Civil Procedure 1.260(a)(1) ; and (2) denying as moot the second motion for substitution of a party, to change the style of the case, and to amend the complaint ("the second motion for substitution") filed by Mr. Feller's counsel. For the reasons that follow, we conclude that the trial court erred as a matter of law by granting the tobacco companies' motion to dismiss with prejudice as a motion for substitution was "made" within ninety days after Mr. Feller's death was suggested upon the record. Further, based on the reversal of the portion of the order granting the motion to dismiss, the motion for substitution is no longer moot, and therefore, we also reverse the portion of the order denying the motion for substitution as moot. Lastly, we remand with directions to enter an order granting the second motion for substitution as the motion seeks to substitute a proper party-the administrator ad litem of Mr. Feller's estate. See Metcalfe v. Lee, 952 So.2d 624, 630 (Fla. 4th DCA 2007) (stating that "where a personal representative has been appointed, he or she is most certainly a proper party" under rule 1.260(a)(1) ).

I. FACTS AND PROCEDURAL HISTORY

Mr. Feller filed an Engle-progeny case against the tobacco companies. On April 30, 2015, while the case was pending, Mr. Feller died, and his counsel notified the tobacco companies of the death. An email dated May 4, 2015, reflects that the parties acknowledged that a suggestion of death had not been filed and agreed that the depositions of Mr. Feller's son and wife, Linda Seltzer, would be rescheduled following the appointment of the personal representative of Mr. Feller's estate.

On April 5, 2016, almost a year following Mr. Feller's death, the trial court issued a notice of lack of prosecution and set a hearing. In response, on April 8, 2016, Mr. Feller's counsel filed a "Notice of Record Activity," which states, in part, as follows:

.... On April 30, 2015, the smoking Plaintiff Mr. Feller passed away and as a result the Court vacated the trial order. The process of opening Mr. Feller's estate has been initiated but objections have been filed which complicated and slowed the process. Plaintiff files this notice of record activity to demonstrate to the Court that this case should not be dismissed for failure to put forth sufficient record activity. Plaintiff anticipates amending the complaint to substitute the Estate of Mr. Feller as the proper Plaintiff and thereafter proceeding to try this case.

Following the hearing on the notice of lack of prosecution, the trial court ordered that Mr. Feller's case remain pending.

On April 15, 2016, Mr. Feller's wife, Linda Seltzer, as proposed personal representative of Mr. Feller's estate, by and through Mr. Feller's counsel, filed a motion to substitute a party, to change the style of the case, and to amend the complaint ("initial motion for substitution"). At the May 9, 2016 hearing on the initial motion for substitution, the parties acknowledged that Mr. Feller's widow had not yet been appointed as the personal representative of her husband's estate because objections to her appointment were filed by Mr. Feller's adult children. The trial court ruled that, because Mr. Feller's wife had not yet been appointed, the initial motion for substitution was "futile," and therefore, it denied the motion without prejudice.

More than three months later, on July 28, 2016, the Palm Beach County probate court appointed Jami Huber, Esq. ("Ms. Huber") as the administrator ad litem of Mr. Feller's estate. On August 11, 2016, Ms. Huber, as the personal representative of Mr. Feller's estate, filed the second motion for substitution.

The tobacco companies opposed the second motion for substitution, arguing that the ninety-day period set forth in rule 1.260(a)(1) was triggered on April 8, 2016, when Mr. Feller's counsel filed the notice of record activity, which included "a statement of the fact" of Mr. Feller's death. Thus, the tobacco companies argued that because the second motion for substitution, which was filed on August 11, 2016, was not filed within ninety days of the notice of record activity, Mr. Feller's case should be dismissed as no excusable neglect can be shown for failing to file a timely motion for substitution. Mr. Feller's counsel, however, contended that the notice of record activity did not constitute a suggestion of death upon the record, and therefore, the ninety-day period set forth in rule 1.260(a)(1) had not been triggered.

Following a hearing, the trial court dismissed Mr. Feller's action with prejudice pursuant to rule 1.260 and denied as moot Mr. Feller's counsel's second motion for substitution. Mr. Feller's appeal followed.

II. ANALYSIS

We review the trial court's order granting the tobacco companies' motion to dismiss de novo. See Northrop Grumman Sys. Corp. v. Britt, 226 So.3d 1059, 1064 (Fla. 3d DCA 2017) (holding that the defendant's argument that a motion for substitution following the plaintiff's death was untimely "involves the application of Florida Rule of Civil Procedure 1.260(a)(1), presents a pure question of law, and is thus reviewed de novo"); Metcalfe, 952 So.2d at 626 (holding that the dismissal of a complaint pursuant to Florida Rule of Civil Procedure 1.260 is reviewed de novo).

A. Whether the ninety-day period set forth in rule 1.260(a)(1) was triggered

In addressing whether the trial court erred by granting the tobacco companies' motion to dismiss, we first address whether the ninety-day period set forth in rule 1.260(a)(1) was triggered. As this Court recently explained in Northrop Grumman:

The "statement of the fact of the death" must be both (a) filed with the clerk of court for docketing to make it part of the official record in the case, and (b) "served" pursuant to Florida Rule of Judicial Administration 2.516(d), which in turn includes the requirement for the document to be "filed with the court."

Northrop Grumman, 226 So.3d at 1064-65 (footnote omitted).

In the instant case, the trial court concluded that Mr. Feller's counsel's notice of record activity, which was both served on the tobacco companies and filed with the clerk of the court on April 8, 2016, constitutes a suggestion of death upon the record because it contained a "statement of the fact of the death" of Mr. Feller, thereby triggering the ninety-day period set forth in rule 1.260(a)(1). Mr. Feller's counsel, however, argues that the notice of record activity did not constitute a sufficient and "formal" suggestion of death upon the record because the notice of record activity was filed merely to explain to the trial court why Mr. Feller's action should not be dismissed for lack of prosecution.

We, however, need not determine whether the notice of record activity filed by Mr. Feller's counsel constituted a suggestion of death because we find the initial motion for substitution filed by Mr. Feller's counsel, which was served on the tobacco companies and filed with the clerk of the court one week later on April 15, 2016, clearly qualifies as a suggestion of death upon the record, thereby triggering the ninety-day period. See Northrop Grumman, 226 So.3d at 1065 (holding that the ninety-day period set forth in rule 1.260(a)(1) was commenced on the date a motion for substitution, which included a statement of the fact of a party's death, was served on the parties and filed with the clerk of the court).

We reject Mr. Feller's counsel's argument that the April 15, 2016 motion for substitution did not trigger the ninety-day period set forth in rule 1.260(a)(1) because it was not formally styled as a "suggestion of death." As we have previously held, "[t]he rule does not spell out any specific requirements for the content of the suggestion of death, and we decline to add requirements that are not stated in the rule." Vera v. Adeland, 881 So.2d 707, 709 (Fla. 3d DCA 2004). All that is required is that the notice contain sufficient information necessary for any other party to move for substitution. Id. at 709-10 ; see also Martin v. Hacsi, 909 So.2d 935, 936 (Fla. 5th DCA 2005) (holding that the suggestion of death need not contain anything other than the fact of death).

The April 15, 2016 motion for substitution satisfied the suggestion of death requirement of rule 1.260(a)(1) because it was specifically filed pursuant to rule 1.260(a)(1) and stated that the plaintiff, Jerry Feller, had died on April 30, 2015, and as a result, Linda Seltzer, Mr. Feller's wife, was seeking to be appointed as the personal representative of Mr. Feller's estate and to be substituted as the plaintiff in the lawsuit against the tobacco companies.

We, therefore, conclude that the ninety-day period set forth in rule 1.260(a)(1) was triggered on April 15, 2016, and thus, the ninety-day period ended on July 14, 2016.

B. Whether the ninety-day period was extinguished by the filing of the initial motion for substitution

Next, we address the trial court's dismissal of the plaintiff's action, which was based on the trial court's determination that a sufficient motion for substitution was not filed within the ninety-day period. As stated above, the ninety-day period ended on July 14, 2016. In the instant case, two separate motions for substitution were served and filed by Mr. Feller's counsel: (1) the initial motion for substitution on April 15, 2016, which was within the ninety-day period, and (2) the second motion for substitution on August 11, 2016, which was outside of the ninety-day period. Thus, our focus is on the initial motion for substitution.

Rule 1.260(a)(1) provides as follows:

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

There is no dispute that Mr. Feller's counsel timely filed a motion for substitution. The tobacco companies, however, argue that, because the motion for substitution sought to substitute Mr. Feller's wife, Ms. Seltzer, and Ms. Seltzer had not been appointed as the personal representative of the estate and was not subsequently appointed, Ms. Seltzer was not a "proper party," and because she was not a "proper party," the initial motion for substitution filed within the ninety-day period did not satisfy the requirements of rule 1.260(a)(1), thus requiring dismissal of Mr. Feller's lawsuit against the tobacco companies. The rule, however, does not require that the motion for substitution be made by the "proper party" to be substituted in order to satisfy the requirement that a motion for substitution be made within ninety days after the death is suggested upon the record. Rather, it only requires that a motion for substitution be "made" within ninety days by "any party or by the successors or representatives of the deceased party." See Metcalfe, 952 So.2d at 628-29.

In Metcalfe, Barbara Metcalfe had filed a medical malpractice action against Dr. Lee and Dr. Pinsky. Id. at 626. Following Ms. Metcalfe's death, Dr. Lee's counsel filed and served a suggestion of death on Ms. Metcalfe's counsel on May 9, 2005, and therefore, the ninety-day period for filing a motion for substitution under rule 1.260(a)(1) expired on August 8, 2005. Id. On June 30, 2005, Ms. Metcalfe's counsel served a motion for substitution, indicating that Ms. Metcalfe's estate was "currently being set up" and the estate was seeking to appoint Ms. Metcalfe's son as the estate's personal representative, and counsel was requesting that Ms. Metcalfe's son, as personal representative of Ms. Metcalfe's estate, be substituted as the plaintiff in the malpractice action. On August 10, 2005, Dr. Pinsky, who was later joined by Dr. Lee, moved to dismiss Ms. Metcalfe's malpractice action, asserting that the ninety-day period for substitution had expired on August 8, 2005, and because Ms. Metcalfe had failed to substitute the personal representative prior to the expiration of the ninety-day period, the malpractice action must be dismissed. Id. at 626-27.

The trial court agreed with the defendant doctors and thereafter entered an order denying the motion for substitution and granting the doctors' motion to dismiss, finding that because no personal representative had yet been appointed, the motion for substitution "was not filed by a party with appropriate standing to bring such a motion within 90 days from the date." Id. at 627. Additionally, the trial court found that, although Ms. Metcalfe moved ore tenus for an extension of time at the August 22, 2005 hearing, because she had not moved for an extension of time to accomplish the appointment of a personal representative prior to the hearing and because her failure to do so did not constitute excusable neglect, dismissal of the malpractice lawsuit was required. Id.

On appeal, the Fourth District, when addressing a motion for substitution under rule 1.260(a)(1), held that substitution "may be made by any party or by the successors or representatives of the deceased party." Id. at 628 (quoting rule 1.260(a)(1) ). "A plain reading of the rule reveals that nowhere does it state that the motion for substitution must be made by the appointed personal representative." Id. at 628.

More importantly, the Fourth District agreed with the Fifth District Court of Appeal's decision in Eusepi v. Magruder Eye Institute, 937 So.2d 795, 798 (Fla. 5th DCA 2006), which held that the language of rule 1.260"is clear about what can authorize dismissal under the rule: failure to make the motion for substitution within ninety days." Thus, The Fourth District concluded that because the motion for substitution was timely "made," dismissal of the action was inappropriate. Id. at 629-30. The Fourth District noted that "[o]nce the motion [for substitution] and notice of hearing are timely made, the ninety-day expiration period is extinguished , and it is then up to the trial court to decide whether there is a proper party to be substituted during the mandated hearing on the motion." Metcalfe, 952 So.2d at 630 (emphasis added). The Fourth District further clarified as follows:

We note that if a plaintiff attempts to substitute an improper party, then a court can deny the motion for substitution. Or, if the motion is granted and it is later discovered that an improper party has been substituted, that party may be dropped upon the motion of a party or by order of the court on its own initiative. See Fla. R. Civ. P. 1.250(b), 1.420(a)(2). Under both scenarios, however, the action would abate until the party's estate, or other appropriate legal representative, has been substituted. See Cope v. Waugh, 627 So.2d 136, 136 (Fla. 1st DCA 1993) ("Upon the death of an indispensable party, the action abates until the deceased party's estate, or other appropriate representative, has been substituted pursuant to rule 1.260(a)(1)."). However, as we already stated, once a party, successor, or representative of the deceased files or serves the motion [for substitution] along with the corresponding notice of hearing within the required ninety-day time period, dismissal is no longer the appropriate remedy pursuant to rule 1.260 .

Id. at 629 n.2 (emphasis added).

As in Metcalfe, we conclude that, because the initial motion for substitution in the instant case was "made" within ninety days after the death of Mr. Feller was suggested upon the record, the ninety-day expiration period was "extinguished." Thus, dismissal of the action was no longer appropriate under rule 1.260(a)(1). Accordingly, we reverse the trial court's order dismissing Mr. Feller's action against the tobacco companies.

Based on the reversal of the order dismissing Mr. Feller's action, the second motion for substitution is not moot and, therefore, we also reverse the denial of the second motion for substitution. Upon remand, we direct the trial court to enter an order granting the second motion for substitution as the motion seeks to substitute a proper party-the administrator ad litem of Mr. Feller's estate.

III. CONCLUSION

Based on the above analysis, we conclude that: (1) Mr. Feller's death was suggested upon the record, thus triggering the ninety-day period set forth in rule 1.260(a)(1), and (2) because the initial motion for substitution was "made" within ninety days after Mr. Feller's death was suggested upon the record, the ninety-day expiration period was extinguished. Thus, as a matter of law, the trial court erred by granting the tobacco companies' motion to dismiss because dismissal was no longer an option under rule 1.260(a)(1). Accordingly, we reverse the order under review and remand to the trial court with directions to enter an order granting the second motion for substitution.

As we have concluded that the trial court erred by granting the tobacco companies' motion to dismiss, we need not address the remaining arguments raised by Mr. Feller.

Reversed and remanded with directions.

      Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).

      Rule 1.260(a)(1) provides in full as follows:
      (a) Death.
      (1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

      The seven-day difference between the serving of the notice of record activity and the serving of the initial motion for substitution does not affect this Court's analysis.


author: Per Curiam.

text:
    Anthony WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-2880
    District Court of Appeal of Florida, First District.
    February 9, 2018 Rehearing Denied April 13, 2018
    Anthony White, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus alleging ineffective assistance of appellate counsel is denied on the merits.

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


author: SILBERMAN, Judge.

text:
    C & J GLOBAL INVESTMENTS, INC., a Florida Corporation, Appellant, v. JVS CONTRACTING, INC., a Florida Corporation; Chicago Title Insurance Company, a Nebraska Corporation; Capgain Properties, Inc., formerly known as Big Mojo Capital, Inc., a corporation organized under the laws of the Province of Alberta, Canada; Capgain Holdings, Inc., formerly known as Capgain Properties, Inc., a corporation organized under the laws of the Province of Alberta, Canada; Michael Loprieno and Brian Knight, Appellees.
    Case No. 2D16-4857
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Donald J. Schutz, St. Petersburg, for Appellant.
    Michael R. D'Onofrio of The D'Onofrio Law Firm, P.A., Naples; and Jonathan B. Sbar of Rocke, McLean & Sbar, P.A., Tampa, for Appellee JVS Contracting, Inc.
    David S. O'Quinn of Fidelity National Law Group, Fort Lauderdale, for Appellee Chicago Title Insurance Company.
    No appearance for remaining appellees.
   SILBERMAN, Judge.

In the underlying action, C&J Global Investments, Inc., sued multiple defendants seeking, among other relief, a declaration that a warranty deed ("the first deed") it executed naming Capgain Properties, Inc., as grantee, is void; rescission of the first deed; and to quiet title to the property. C&J Global also seeks a declaration that a warranty deed (the "second deed") executed in the name of Capgain Properties, Inc., as grantor, in favor of JVS Contracting, Inc., as grantee, is void as a wild deed and seeks damages from JVS based on its intentional unauthorized entry onto the property.

JVS filed a cross-claim against codefendants Capgain Holdings, Inc., and Capgain Properties, Inc., seeking reformation of the second deed and a related contract based on an alleged error as to the named grantor. In this appeal, C&J Global seeks review of an order denying its motion to intervene in that cross-claim. We conclude that C&J Global does not have a direct and immediate interest in the reformation cross-claim at this time and affirm.

Florida Rule of Civil Procedure 1.230 provides for intervention by "[a]nyone claiming an interest in pending litigation."

[T]he interest which will entitle a person to intervene ... must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation.

Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla. 1992) (alteration in original) (omission in original) (quoting Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918) ). A person should be joined in an action to reform a deed if a ruling could divest that person of whatever interest he or she might have in the property. Palm v. Taylor, 929 So.2d 566, 568 (Fla. 2d DCA 2006). Absent an abuse of discretion, a trial court's decision to grant or deny a motion to intervene will be upheld. Bonafide Props. v. Wells Fargo Bank, N.A., 198 So.3d 694, 695 n.2 (Fla. 2d DCA 2016).

C&J Global is not a party to the second deed but argues that it has an ownership interest that could be divested if JVS prevails in the reformation cross-claim. C&J Global asserts that if the second deed is reformed, JVS may be able to successfully maintain that it is a bona fide purchaser of the property without notice. And then JVS would not be subject to C&J Global's claims seeking to establish its interest in the real property at issue in the underlying action. See Restatement (Third) of Restitution and Unjust Enrichment § 66 cmt. a (Am. Law Inst. 2011).

The difficulty with C&J Global's argument is that the property interest it seeks to protect by intervention is the interest that it transferred through the first deed. Although C&J Global contends that the transaction reflected by the first deed is invalid and should be undone, a judgment reforming the second deed will not itself cause C&J Global to directly and immediately gain or lose an interest it might have in the property. Indeed, before the reformation action could result in any impact on the interest C&J Global claims it should have in the property, C&J Global must first prevail in its action to void or rescind the first deed. Because that has not yet occurred and because C&J Global is not a party to the second deed, it cannot establish that it has an interest that would be directly and immediately affected by reformation of the second deed. See Stefanos v. Rivera-Berrios, 673 So.2d 12, 13 (Fla. 1996) (holding that an "indirect, inconsequential or contingent interest is wholly inadequate" to entitle a party to intervene in the matter being litigated); Kissoon v. Araujo, 849 So.2d 426, 429 (Fla. 1st DCA 2003) (same). Further, based on the limited information contained in our record and the arguments of the parties, it remains in dispute whether JVS ultimately may be deemed to be a bona fide purchaser of the property.

Under these circumstances, we are compelled to conclude that C&J Global's asserted interest is not of a direct and immediate character; rather, the interest is contingent and uncertain. At this time, C&J Global does not have an ownership interest in the property such that it would gain or lose by the direct legal operation of a judgment reforming the second deed. Accordingly, we cannot say the trial court erred in denying C&J Global's motion to intervene.

Affirmed.

CASANUEVA and LUCAS, JJ., Concur.


text:
    Jeffrey A. SIEGMEISTER, State Attorney for the Third Judicial Circuit of Florida, Appellant, v. L.J. JOHNSON, Appellee.
    No. 1D17-992
    District Court of Appeal of Florida, First District.
    February 20, 2018 Rehearing Denied March 28, 2018
    Arthur I. Jacobs, Richard J. Scholz, and Douglas A. Wyler of Jacobs Scholz & Assoc., LLC, Fernandina Beach, for Appellant.
    Kevin K. Carson, Lake City, and Joseph W. Little, Gainesville, for Appellee.
   Osterhaus, J.

Jeffrey A. Siegmeister, the State Attorney for the Third Judicial Circuit of Florida, appeals the final judgment entered for L.J. Johnson in a public records case. Mr. Johnson's attorney submitted a public records request to see and copy the state attorney's case file in a closed matter involving Mr. Johnson. Former State Attorney Robert L. "Skip" Jarvis, Jr., reviewed the file and acceded to the request within a week. He offered to make the records available at his main office in Live Oak where he had reviewed them. But his letter acceding to the request took another week to be delivered to Mr. Johnson's attorney in Lake City. Due to the delay, Mr. Johnson promptly sued State Attorney Jarvis claiming an unlawful refusal to provide the records under the Public Records Act, chapter 119, Florida Statutes (2010).

The trial court ultimately held an evidentiary hearing and agreed with Mr. Johnson and awarded costs and attorneys' fees. The court based its finding of an unlawful delay principally upon the fact that State Attorney Jarvis's letter required Mr. Johnson's attorney to travel twenty-five miles to Live Oak to inspect and copy the records, instead of offering to make the records available at his local courthouse in Lake City. State Attorney Siegmeister, who succeeded Mr. Jarvis, appealed. We reverse and conclude that State Attorney Jarvis did not violate Florida's public records law by making the requested records available for inspection and copying at the main office of the State Attorney for the Third Judicial Circuit, instead of at an office closer to the requester's home.

I.

This appeal follows an earlier remand in Johnson v. Jarvis , 74 So.3d 168 (Fla. 1st DCA 2011). There, we reversed the trial court's dismissal of Johnson's chapter 119, public records complaint and remanded for an evidentiary hearing on the issue of whether there was an unreasonable delay in producing the requested records. Id. at 170-71.

After remand, Kevin K. Carson, Mr. Johnson's attorney, testified at the hearing that he met with an Assistant State Attorney in Lake City, Florida, on January 26, 2011, to learn whether Mr. Johnson would be criminally charged as a result of an incident in which his firearm discharged at a local store. Mr. Carson was told at the meeting that the State wouldn't be filing charges, whereupon Mr. Carson made a public records request to inspect and copy the State Attorney's investigative file. The ASA responded by recommending that Mr. Carson write out his specific request, which he did, in his own name. He addressed the request to the "Records Custodian, State Attorney, Third Judicial [Circuit]," stating: "Please make available for inspection and copying all public records relating to [Johnson case]. This should include all information requested in my discovery request."

The ASA told Mr. Carson that his request would be forwarded to State Attorney Jarvis in Live Oak. State Attorney Jarvis's job included being the public records custodian for the office. The office's public records policy provided that public records matters would be handled in the main State Attorney's office for the Third Judicial Circuit in Live Oak:

All requests to inspect or copy case files, active or inactive, shall be directed to the State Attorney. The State Attorney shall promptly review the case file to [e]nsure that there is no disclosure of active criminal intelligence information or criminal investigative information as defined in [c]hapter 119, Florida Statu[t]es, or other exempted documents such as autopsy reports or work product. Such information and documents shall be placed in a separate envelope, sealed, and marked as "exempt documents." In order to [e]nsure that exempt materials and documents are protected and that the State Attorney's obligations under the statute have been met, all public record requests shall be complied with at the main office of the State Attorney located at 100 S.E. Court Street in Live Oak, Florida.

(Emphasis added).

After making the request, Mr. Carson stated that he checked his mail every day thereafter, but didn't receive a response from State Attorney Jarvis until two weeks later, on February 9, 2011. The letter, dated February 2, 2011, informed Mr. Carson that the file would be made available at his convenience at the State Attorney's office in Live Oak. Upon receiving the letter, Mr. Carson did not make arrangements to inspect the file, but a week later his client Mr. Johnson filed a public records lawsuit.

Following the evidentiary hearing, the trial court issued final judgment for Mr. Johnson on the basis of an unjustified delay in State Attorney Jarvis's response to Mr. Carson's public records request. The court noted that it didn't decide the issue based on the delayed delivery of the letter, which it considered de minimis and reasonable. But, instead, the unjustified delay arose from the State Attorney's decision to make the records available for inspection and copying in Live Oak, instead of in Lake City. The court awarded Mr. Johnson his attorneys' fees and costs under § 119.12, Florida Statutes, including a 1.5 fee multiplier corresponding to the hours spent by Mr. Carson and another attorney litigating the case. The current State Attorney for the Third Judicial Circuit, Mr. Siegmeister, then appealed.

II.

The issue in this appeal is whether the State Attorney unreasonably delayed producing the records requested by Mr. Carson. The parties don't dispute the material facts involving the time it took the State Attorney's response to be delivered to Mr. Carson, nor do they dispute that the response made the records available in Live Oak, instead of Lake City. We review de novo the trial court's conclusion that these circumstances amounted to an unlawful refusal to provide the records under Florida's Public Records Act. § 119.12, Fla. Stat. (2010) ; Althouse v. Palm Beach Cty. Sheriff's Office , 92 So.3d 899, 901 (Fla. 4th DCA 2012), disapproved on other grounds, Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee , 189 So.3d 120, 123 (Fla. 2016).

The Florida Constitution provides to every person "the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state," except with respect to certain exempted records. Art. I, § 24(a), Fla. Const. This right is codified in chapter 119, Florida Statutes, the "Public Records Act." The Public Records Act describes Florida's policy that all state, county, and municipal records are open for personal inspection and copying by any person. § 119.01(1), Fla. Stat. (2010). Accordingly, "[p]roviding access to public records is a duty of each agency." Id. Every person with custody of a public record must allow the record "to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." § 119.07(1)(a), Fla. Stat. (2010). "A custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith." § 119.07(1)(c), Fla. Stat. (2010). Section 119.12, Florida Statutes (2010), provides for reasonable costs and attorney fees if a court determines that an agency "unlawfully refused" to permit a public record to be inspected or copied.

Violations of the Public Records Act encompass "not only affirmative refusal to produce records, but also unjustified delay in producing them." Lilker v. Suwannee Valley Transit Auth. , 133 So.3d 654, 655-56 (Fla. 1st DCA 2014) ; Promenade D'Iberville, LLC v. Sundy , 145 So.3d 980, 983 (Fla. 1st DCA 2014). But "a delay does not in and of itself create liability under section 119.12." Consumer Rights, LLC v. Union Cty, Fla. , 159 So.3d 882, 885 (Fla. 1st DCA 2015). "[R]easonable" delay is allowed. See Johnson , 74 So.3d at 170-71 (remanding to determine "whether the delay was reasonable under the facts of this case"). Once a request to inspect public records is made, records custodians must respond promptly and in good faith, see § 119.07(1), determining, for instance, if they possess the records, retrieving the records, assessing whether exemptions apply, deleting those portions of the record believed to be exempt, notifying the requester, and making the non-exempt records available. See Tribune Co. v. Cannella , 458 So.2d 1075, 1078 (Fla. 1984) (stating that the Public Records Act "contemplates ... the reasonable custodial delay necessary to retrieve a record and review and excise exempt material"). Where the delays aren't justified, however, the Public Records Act holds officials accountable.

Turning to this case, we agree with the trial court that the two-week period it took for a letter to be delivered from State Attorney Jarvis in response to Mr. Carson's request did not by itself breach the requirement to respond promptly and in good faith. The evidence indicated that only one week passed from the day Mr. Carson requested to inspect and copy the state attorney's file in Lake City to the day State Attorney Jarvis approved the request. During that week, the relevant file was sent from the assistant state attorney (ASA) in Lake City to the State Attorney's main office in Live Oak. State Attorney Jarvis then had to review the file for exemptions. The ASA couldn't have, for instance, simply handed over the records on the spot when Mr. Carson requested them in Lake City. Id. at 1077 (noting that "[t]o literally place the records on the table would be unrealistic"). The Act and office policy required that it be reviewed for exempt information by the public records custodian (who also was responsible for supervising the record inspection and copying process). See § 119.07(1)(a). Within a week of receiving the request, State Attorney Jarvis drafted a letter on February 2, 2011, approving Mr. Carson's request and making the records available to him. After drafting the approval letter, an administrative snafu or postal service delay caused the approval letter's delivery to be delayed for a few days. Mr. Carson didn't receive the approval letter in his mailbox until five business days after State Attorney Jarvis drafted it, on February 9, 2011.

These circumstances don't violate the Public Records Act. The Act demands prompt attention and a reasonable response time, not the quickest-possible response. A few business days' delay in the delivery of mail is unremarkable. See, e.g. , Fla. R. Civ. P. 1.090(e) (adding 5 days to the prescribed period for service by mail). There is no indication here that State Attorney Jarvis intentionally or unjustifiably delayed responding for these days. See Cannella , 458 So.2d at 1078-79 (finding an intentional policy to delay public records responses to be impermissible under the Act). And even if optimal delivery efficiency had been achieved, it would have saved just a few days, which the trial court rightly found to be "de minimis and reasonable" under the circumstances. See Molter v. State, 892 So.2d 1115, 1119 (2d DCA 2004) (noting that the law does not concern itself with trifles); see also Walton Cty. v. Stop the Beach Renourishment, Inc. , 998 So.2d 1102, 1118 (Fla. 2008) (same).

Where our analysis diverges from the judgment below is in its conclusion that the State Attorney violated the Public Records Act by making the records available at the main Third Judicial Circuit State Attorney's office in Live Oak, instead of in Lake City. The trial court concluded that making Mr. Carson drive twenty-five miles from Lake City to Live Oak to inspect and copy the records amounted to an unjustifiable delay in violation of the Public Records Act. The Act requires "[e]very person who has custody of a public record [to] permit the record to be inspected and copied at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." § 119.07(1)(a), Fla. Stat. The Act does not define "reasonable" as requiring government officials to move records from where they are being maintained to a different place convenient to the requester. Nor do other cases support this argument. See Roesch v. State , 633 So.2d 1, 2 (Fla. 1993) (holding that it would be unreasonable to require state attorneys to send their original files to prisons throughout the state every time an indigent defendant demanded it, and that a prisoner was in the "same position as anyone else seeking public records ... who cannot afford the trip to personally examine the records"); Campbell v. State , 593 So.2d 1148, 1149-50 (Fla. 1st DCA 1992) (same). By making the records available at his main office in Live Oak, where they had been reviewed for exemptions pending Mr. Carson's inspection, State Attorney Jarvis satisfied his legal obligation. His office was a reasonable place to make the State Attorney's records available in the Third Circuit, even if Mr. Carson had to drive some twenty-five miles to view them.

Under these circumstances, we cannot conclude that State Attorney Jarvis violated the Public Records Act, or unlawfully refused to permit a public record to be inspected or copied under the Act.

III.

For these reasons, the final judgment, as well as the order awarding Appellee's costs and attorneys' fees, are reversed.

REVERSED.

Wolf and Kelsey, JJ., concur.

      An earlier motion to dismiss raised the issue of whether Mr. Johnson could file a public records lawsuit arising from a request filed solely in the name of Mr. Carson. This issue has evidently vanished from the case, though it isn't completely clear why Mr. Johnson, instead of Mr. Carson, filed this lawsuit.

      The delivery delay here didn't come close to approaching the length of delay of cases where courts have found an unlawful refusal to provide public records. See , e.g. , Promenade D'Iberville , 145 So.3d at 982-83 (sixty-three days); Office of State Att'y for Thirteenth Jud. Cir. of Fla. v. Gonzalez , 953 So.2d 759, 765 (Fla. 2d DCA 2007) (more than ninety days). Also, unlike in Grapski v. City of Alachua , 31 So.3d 193 (Fla. 1st DCA 2010), there is no evidence that the state attorney's response was delayed for strategic reasons. This case also does not involve a situation like in Hewlings v. Orange County , 87 So.3d 839, 841 (Fla. 5th DCA 2012), where an official responded quickly in writing that they would comply with a request, but then delayed in actually complying with the request for forty-five days.

      The Third Judicial Circuit encompasses seven counties, with Live Oak, located in Suwannee County, situated close to the center of the circuit.

      We note that Mr. Carson had another avenue for receiving copies of the documents more quickly. He could have had the State Attorney's office copy and mail the records pursuant to their policy, instead of asking to inspect them in person. But, according to the final judgment, "Mr. Carson made no effort (1) to contact the Office of the State Attorney to inspect the records, (2) to request that the records be sent via mail to him directly, or (3) to request that the records be transported to the Lake City office for inspection."


author: EMAS, J.

text:
    Michael J. SCHLESINGER, etc., et al., Appellants, v. Anita JACOB, Appellee.
    No. 3D16-2314
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018
    Schlesinger & Associates, P.A., and Michael J. Schlesinger and Andrew S. Genden ; Luis E. Barreto & Associates, P.A., and Luis E. Barreto, for appellants.
    Rosenthal, Rosenthal, Rasco, LLC, and Steve M. Bimston and Eduardo I. Rasco, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   EMAS, J.

Appellants Michael J. Schlesinger, of Schlesinger & Associates, P.A., and Luis E. Barreto, of Luis E. Barreto & Associates, P.A., appeal the trial court's order denying their motion for entitlement to attorney's fees and costs in an underlying guardianship proceeding. We reverse the trial court's order, which denied entitlement to attorney's fees under section 744.108(1), Florida Statutes (2016). That subsection provides:

A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward's behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.

Case law construing this provision uniformly holds that "an attorney's entitlement to payment of reasonable fees and costs is subject to the limitation that his or her services must benefit the ward or the ward's estate." In re G'ship of Ansley, 94 So.3d 711, 713 (Fla. 2d DCA 2012) ; Thorpe v. Myers, 67 So.3d 338 (Fla. 2d DCA 2011) ;

Butler v. G'ship of Peacock, 898 So.2d 1139 (Fla. 5th DCA 2005) ; Price v. Austin, 43 So.3d 789 (Fla. 1st DCA 2010). See also Zepeda v. Klein, 698 So.2d 329 (Fla. 4th DCA 1997). This court has adopted our sister courts' construction of section 744.108(1). See Losh v. McKinley, 106 So.3d 1014, 1015 (Fla. 3d DCA 2013).

In denying the motion for attorney's fees, the trial court concluded that none of the services rendered by appellants benefitted the Ward. However, this conclusion is unsupported by competent substantial evidence in the record. Indeed, appellants provided services which included: a petition to determine incapacity, which the trial court granted upon a determination, supported by clear and convincing evidence, that the Ward was totally incapacitated; and a petition to establish a plenary guardianship, which the trial court also granted, upon a determination that such was necessary "to provide for the welfare and safety of the Ward," and because there was no less restrictive alternative to plenary guardianship that would "sufficiently address the problems and needs of the Ward." As a result, the Ward received the full benefit and protection of a plenary guardianship of person and property under Florida law.

The trial court's order appears to have conflated the separate determinations of entitlement to attorney's fees with the reasonable amount of fees to be awarded. The court's determination of amount and reasonableness is guided by section 744.108(2), Fla. Stat. (2016) which provides:

When fees for a guardian or an attorney are submitted to the court for determination, the court shall consider the following criteria:
(a) The time and labor required;
(b) The novelty and difficulty of the questions involved and the skill required to perform the services properly;
(c) The likelihood that the acceptance of the particular employment will preclude other employment of the person;
(d) The fee customarily charged in the locality for similar services;
(e) The nature and value of the incapacitated person's property, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person;
(f) The results obtained;
(g) The time limits imposed by the circumstances;
(h) The nature and length of the relationship with the incapacitated person; and
(i) The experience, reputation, diligence, and ability of the person performing the service.

Determining the amount of reasonable attorney's fees to be awarded lies within the discretion of the trial court, and such determination will not be disturbed unless there is a lack of competent substantial evidence to support the award. Gamse v. Touby, 382 So.2d 115 (Fla. 3d DCA 1980). In exercising that discretion, the trial may well consider, for example, the extent to which the party engaged in unproductive litigation over who would be appointed guardian or where the party pursued other goals that did not benefit the ward or his estate. Thorpe, 67 So.3d at 346.

We reverse the trial court's order denying appellants' motion for entitlement to attorney's fees and costs and remand for further proceedings consistent with this opinion.

ROTHENBERG, C.J., concurs.

LUCK, J., concurring specially:

I concur in the majority opinion because our court in Losh v. McKinley, 106 So.3d 1014 (Fla. 3d DCA 2013) joined the other district courts in welding onto the guardianship attorney's fee statute, section 744.108(1), the requirement that an attorney's services "benefit" the ward for the attorney to be entitled to fees. We are bound to follow Losh until the en banc court or the Florida Supreme Court overrules it, even though the word "benefit" is found nowhere in section 744.108(1) ("A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward's behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward."). See In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Fla R. App. P., 416 So.2d 1127, 1128 (Fla. 1982) ("[T]he suggestion that each three-judge panel may rule indiscriminately without regard to previous decisions of the same court is totally inconsistent with the philosophy of a strong district court of appeal which possesses the responsibility to set the law within its district.").

Courts adding words to a statute is bad for all the usual reasons. It takes us out of our lane as judges and usurps the power of the legislature to make the laws. See Art. III, § 1, Fla. Const. ("The legislative power of the state shall be vested in a legislature of the State of Florida, consisting of a senate composed of one senator elected from each senatorial district and a house of representatives composed of one member elected from each representative district."); id. Art. II, § 3 ("The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."). It substitutes our will for the will of the people as reflected in the laws enacted by their elected representatives. See Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-Liab. Ins. Guar. Ass'n, 215 N.J. 522, 74 A.3d 860, 873 (2013) ("Legislation reflects the will of the people as enacted through their elected representatives."). It upsets the delicate compromises and give-and-take that go into the legislative process. See Henson v. Santander Consumer USA Inc., --- U.S. ----, 137 S.Ct. 1718, 1725, 198 L.Ed.2d 177 (2017) (Gorsuch, J.) ("Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage ...."). There are others.

But there is a specific harm in adding the requirement that an attorney's services must benefit the ward or the ward's estate. Wards are vulnerable. Whether by age or incapacity, a guardian has to be appointed to make decisions on a ward's behalf. Too often in our community, wards are taken advantage of by con artists, and even unscrupulous family members, financial institutions, professionals, and health care providers. By authorizing attorney's fees for services rendered to the ward, the legislature sought to encourage concerned family members and other interested parties to investigate abuses of a ward and to bring good-faith claims to the probate court. Those claims may not be successful in the end; it may turn out that the ward is not being taken advantage of or abused; but family members and other interested parties are rendering services to the ward by making sure they are well cared for and that the guardian is doing his or her job. By authorizing attorney's fees for services rendered to the ward, the legislature has essentially asked family members and interested parties, the ones best suited to watch over the ward, to be vigilant in protecting the ward's rights and bring to the trial court's attention good-faith concerns that the ward is being abused. As the legislature explained,

it is the purpose of [the guardianship act] to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf.

§ 744.1012(3), Fla. Stat.

Consider this case. Even if the ward's daughter had been unsuccessful in her petitions, they triggered the trial court to appoint three doctors who were required to meet with the ward and his family physician and caretaker, diagnose him, and evaluate his capacity to manage his financial affairs and make medical decisions. Id. § 744.331(3)(g)1.-6. By filing and litigating the petitions, the attorney rendered services to the ward by making sure he was being properly cared for and was of sound mind to exercise his rights.

Adding the requirement that an attorney's services must benefit the ward, as our district courts have done, has consequences that were not intended by the legislature. Under Losh and the other cases cited by the majority opinion, if the attorney services rendered to the ward are not successful, then the attorney is not entitled to fees. The result is that attorneys are less likely to represent family members and interested parties concerned about how the ward is treated because they will not get paid, and thus, fewer claims by family members and interested parties will be brought to court. The result is less oversight of the most vulnerable members of our community. Adding the benefit requirement to section 744.108(1) discourages attorneys from bringing guardianship claims that would otherwise be brought.

The legislature knows how to write attorney's fee statutes that require the lawsuit to end successfully. See, e.g., § 713.29, Fla. Stat. ("In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party's costs, as allowed in equitable actions."); id. § 501.2105(1) ("In any civil litigation resulting from [a deceptive and unfair trade practice] involving a violation of this part ... the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney's fees and costs from the nonprevailing party."); id. § 448.08 ("The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney's fee."). But section 744.108(1) was not written as a prevailing party attorney's fee statute. King v. Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., 862 So.2d 873, 874 (Fla. 2d DCA 2003) (Villanti, J., concurring specially) ("Nothing in either section 744.108(1) or 744.108(2) entitles a party to an award of attorney's fees from the ward's estate simply because that party's position prevailed in the trial court."). It provides for attorney's fees where services were rendered to the ward. Losh and the other cases cited by the majority opinion are contrary to the legislature's decision to expand the scope of those entitled to attorney's fees to those who render services to the ward, and not just to successful parties, as it has done in countless other statutes.

The structure of section 744.108 also shows the legislature's intent that the benefit resulting from the litigation is not to be considered when determining whether the attorney is entitled to fees. Subsection (1) is the entitlement section, and says that an attorney who renders service to the ward is entitled to a reasonable fee for services rendered. § 744.108(1), Fla. Stat. Once the trial court determines that an attorney is entitled to fees under subsection (1), subsection (2) provides the criteria for the court to consider in determining the amount of the fee award. Unlike subsection (1), subsection (2) requires the trial court to consider the "novelty," "difficulty," and "skill required" in rendering services to the ward; the "result obtained"; the "diligence" and "ability" of the attorney rendering services; and the ward's property. Id. § 744.108(2). These factors, unlike in subsection (1), go to the benefit received by the ward from the attorney's services. The trial court is authorized to reduce the fee award to account for the fact that little-to-no benefit resulted from the services rendered.

More importantly, what the structure of section 744.108 tells us is that the legislature knew how to account for the benefit to the ward, and did so in subsection (2) when considering the amount of the fees. The legislature deliberately left the benefit factors out of subsection (1). Losh and the other cases flip the analysis and consider the benefit factors at the entitlement stage.

By reading section 744.108(1) to require a benefit to the ward, we make it harder for family members and interested parties to bring claims on behalf of their loved ones, undercompensate attorneys who render services to a ward (although don't ultimately prevail in the case), and double count certain factors in the entitlement decision and then again when considering the amount to award. This is not what the legislature wrote and it is not what it intended.

In this case, adding a benefit requirement to section 744.108(1) does not affect the result because, as the majority opinion notes, the daughter's petitions were successful. The attorney prevailed. But in the appropriate case, where the added language does make a difference in whether the attorney is entitled to fees, I think we should recede from Losh and read section 744.108 as the legislature wrote it.


author: PER CURIAM.

text:
    Jeff M. ARCERI, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-2712
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018
    Hal G. Schuhmacher ; Michael Ufferman (Tallahassee), for petitioner.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, and Amit Agarwal, Solicitor General (Tallahassee), for respondent.
    Before SALTER, LUCK and LINDSEY, JJ.
   PER CURIAM.

Jeff Arceri petitions for a writ of certiorari quashing a Monroe County Circuit Court Order declining retroactive application of the 2017 amendments to the Stand Your Ground ("SYG") statute, section 776.032, Florida Statutes (2017). The date of the alleged crime was July 15, 2014, and the effective date of enactment of the SYG amendments (altering the burden and standard of proof regarding claims of SYG immunity) was June 9, 2017. The trial court conducted a hearing regarding retroactive application of the statute to Arceri's motion for SYG immunity in October 2017, and it entered an order denying retroactive application of the statutory amendments on November 15, 2017. An evidentiary hearing on Arceri's SYG motion has not been completed, and the motion has not been granted or denied.

Pending a ruling on Arceri's motion for SYG immunity by the trial court, we lack jurisdiction to grant relief. Rodriguez v. State, No. 3D17-1633, 239 So.3d 147, 2018 WL 735244 (Fla. 3d DCA Feb. 7, 2018).

Petition dismissed.


text:
    Gladys CARBONELL, Appellant, v. WVUE 2015-1, Appellee.
    No. 3D17-1580
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018.
    American Justice, P.A., and Theresa B. Edwards and David F. Edwards (Fort Lauderdale), for appellant.
    Law Offices of Damian G. Waldman, P.A., and Farha Ahmed and Damian G. Waldman (Largo), for appellee.
    Before SCALES, LUCK and LINDSEY, JJ.
   PER CURIAM.

The trial court entered summary judgment in this residential foreclosure case in favor of the Appellee WVUE 2015-1. We reverse because the record reveals that a genuine issue of material fact exists regarding the amount that Appellant Gladys Carbonell owed under the promissory note, Ottawa Properties 2 LLC v. Central Mortgage Co., 202 So.3d 102, 103 (Fla. 4th DCA 2016) ; and because at the summary judgment hearing, the trial court was made aware that outstanding, pending discovery on this issue had not concluded. Payne v. Cudjoe Gardens Prop. Owners Ass'n, 837 So.2d 458, 461 (Fla. 3d DCA 2002).

Reversed and remanded.

      Appellant also argues that outstanding discovery on the standing issue should have precluded summary judgment. We agree with Appellee, though, that Appellant's outstanding discovery requests on the standing issue would not create a disputed issue of material fact. Estate of Herrera v. Berlo Indus. Inc., 840 So.2d 272, 273 (Fla. 3d DCA 2003). Our de novo review of the summary judgment record supports the trial court's finding that Appellee established standing from the inception of the lawsuit. McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012).


text:
    I.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1108
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

I.L. appeals the trial court's order finding him delinquent of burglary and criminal mischief, withholding adjudication, and placing him on probation under the supervision of the Department of Juvenile Justice.

We reverse that portion of the order which determined I.L. committed a burglary, as the evidence presented at the adjudicatory hearing was insufficient to establish one of the elements of this offense. Count One of the petition alleged that I.L. committed burglary of a structure in violation of section 810.02(4)(a), Florida Statutes (2016). For purposes of Chapter 810 ("Burglary and Trespass"), the term "structure" is defined in relevant part as follows:

"Structure" means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.

The evidence presented at the adjudicatory hearing established that the building at issue was under construction and had no roof. Under these circumstances, the trial court erred in denying I.L.'s motion for judgment of dismissal. Based upon the allegations of the petition, the only necessarily lesser-included offense that the trial court could have considered (trespass of a structure, see section 810.08) would also have required proof that the "structure" had a roof over it. We therefore reverse the order finding I.L. delinquent for the offense of burglary and remand with instructions to enter a judgment of dismissal on that charge.

We affirm the trial court's order finding I.L. delinquent for the offense of criminal mischief resulting in damage of $200 or less, as there was competent substantial evidence to support the trial court's determination. See J.Y. v. State, 332 So.2d 643, 644 (Fla. 3d DCA 1976) (holding: "In examining a record to determine if there is sufficient evidence to support the conclusion of the trier of fact, an appellate court need only find substantial, competent evidence to support the conclusion.")

Because we are reversing one of the two offenses for which I.L. was found delinquent, we also reverse the order placing I.L. on probation, and remand for the trial court to conduct a new disposition hearing. See Stanford v. State, 833 So.2d 174 (Fla. 3d DCA 2002).

Affirmed in part, reversed in part, and remanded for entry of judgment of dismissal of Count One of the petition and for a new disposition hearing.

      I.L. was charged in Count Two with criminal mischief resulting in damage of $1000 or more, in violation of section 806.13(1)(b)3., Florida Statutes (2016), a third-degree felony. At the conclusion of the State's case, the trial court granted a judgment of dismissal of that charge, reducing it to criminal mischief resulting in damage of $200 or less, in violation of section 806.13(1)(b)1., a second-degree misdemeanor.

      That statute provides in pertinent part:
      Burglary is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a ... [s]tructure, and there is not another person in the structure at the time the offender enters or remains ....

      It is possible that the State could have charged I.L. with trespass on property other than a structure or conveyance, see § 810.09, Fla. Stat. (2016), but it is not a necessarily lesser-included offense of burglary of a structure as charged in the petition under section 810.02(4)(a). As the name implies, trespass on property other than a structure or conveyance does not require, as an element of the offense, proof of a "structure." However (and unlike burglary), it does require, as an element of the offense, proof that notice against entering or remaining on the property was given to the offender either by actual communication to the offender, by posting notices, or by fencing. See § 810.011 (5) -(8), Fla. Stat. (2016). Given that this offense is not a necessarily lesser-included offense of burglary, it would have been improper for the trial court (or this court, upon reversal of the judgment for burglary) to direct entry of judgment for trespass on property other than a structure or conveyance. See State v. Sigler, 967 So.2d 835 (Fla. 2007) ; § 924.34, Fla. Stat. (2016).


author: SALTER, J.

text:
    KEY BISCAYNE GATEWAY PARTNERS, LTD., Appellant, v. VILLAGE COUNCIL FOR The VILLAGE OF KEY BISCAYNE, Appellee.
    No. 3D17-673
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018.
    Hall, Lamb, Hall & Leto and Matthew P. Leto, Andrew C. Hall and Vanessa Palacio, for appellant.
    Weiss Serota Helfman Cole & Bierman and Laura K. Wendell and John Quick and Elizabeth K. Coppolecchia, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   SALTER, J.

Key Biscayne Gateway Partners, Ltd. ("Gateway"), and its trial court counsel (Michael A. Winkleman, Esq.), appeal three orders awarding attorney's fees as a sanction under section 57.105, Florida Statutes (2016), to the appellee, the Village Council for the Village of Key Biscayne, Florida ("Village"). We reverse and vacate each of the orders below.

The issues presented are whether Gateway's petition for mandamus to compel the Village to approve a proposed site plan was so unsupported by material facts or then-existing law as to warrant sanctions under section 57.105, and whether the trial court's orders contained the requisite findings to that effect.

Gateway owns a parcel of land within the Village of Key Biscayne. It applied to the Village for approval of a site plan and conditional use approval to permit development of the property as a Walgreens pharmacy store. In February 2014, the Village approved the site plan, but with a condition requiring a limitation of cross-access to the property from an adjacent commercial property to pedestrians, bicycles, and golf carts. Gateway filed an amended petition for mandamus in the circuit court alleging that the Village's site criteria were satisfied by Gateway's application and that there was no legal basis for restricting access to the property by vehicles from the adjacent commercial plaza. Gateway simultaneously filed a petition for writ of certiorari in the appellate division of the circuit court challenging the access restriction conditionally imposed by the Village.

In response, the Village moved to dismiss the amended petition for mandamus with prejudice on the grounds that the Village Council heard the site plan application as a quasi-judicial body, such that Gateway could not allege a non-discretionary, ministerial duty to approve the application without the cross-access condition. The Village relied on Florida appellate decisions, including American Riviera Real Estate Co. v. City of Miami Beach, 735 So.2d 527 (Fla. 3d DCA 1999), Board of County Commissioners v. Snyder, 627 So.2d 469 (Fla. 1993), and Marion County v. Kirk, 965 So.2d 330 (Fla. 5th DCA 2007), holding that appeals from quasi-judicial land use decisions are properly and exclusively brought as a petition for certiorari rather than for mandamus.

The Village also argued that Gateway was estopped from seeking relief in mandamus, as Gateway's simultaneously-filed petition for certiorari relief in the appellate division of the circuit court affirmatively alleged jurisdiction under Florida Rule of Appellate Procedure 9.100(c)(2) (applicable to petitions for review of "quasi-judicial action of agencies, boards, and commissions of local government ...."). Gateway opposed the motion, arguing (among other points) that a federal decision applying Florida law, Disser v. City of Tampa, 2013 WL 3975759 (M.D. Fla. July 31, 2013), supports the use of mandamus to compel the issuance of a permit where the conditions for issuance have been satisfied. The decision considered an argument by the defendants that certiorari, not mandamus, was the "proper mechanism to review a quasi-judicial proceeding," requiring dismissal of the petition for mandamus. Id. at *6. The court rejected that argument:

However, certiorari review is limited to determining whether procedural due process was provided, the essential requirements of law were observed, and competent substantial evidence supported the City's decision to deny Plaintiffs' permit application. Those certiorari matters are not challenged in Plaintiffs' petition for mandamus relief. Instead, Plaintiffs' petition contends Defendants have a ministerial duty under the Code to issue the permit; this matter is properly considered on mandamus. Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996) (mandamus is used to compel performance of ministerial duties, meaning "there is no room for the exercise of discretion, and the performance being required is directed by law."). The Court therefore disagrees that certiorari, rather than mandamus, relief is the proper relief.

Id.

The Village prepared and served a motion for sanctions on Gateway alleging that Gateway's position was contrary to well-settled law, and thus sanctionable under section 57.105(1) if not withdrawn within the 21-day "safe harbor" period specified in section 57.105(4). Gateway did not voluntarily dismiss the mandamus petition within that period. The trial court dismissed the mandamus petition with prejudice, and Gateway appealed that order to this Court. The Village then filed the motion for sanctions and set it for hearing in the trial court.

The trial court reserved ruling on the sanctions and did not enter any findings under section 57.105. The order on the motion for sanctions (November 24, 2014) specified that the motion would be granted if the Village prevailed in Gateway's appeal to this Court from the dismissal with prejudice of Gateway's petition for mandamus, or denied if Gateway prevailed in that appeal.

Gateway's appeal regarding the dismissal of the petition for mandamus was briefed and this Court heard oral argument. During the argument, a member of the panel referred to Gateway's "compelling argument," and counsel for both parties and the Court discussed a number of Florida decisions regarding plat and site plan approvals, as well as the limits of certiorari as a remedy. The Village conceded that, in a case in which all site plan conditions for approval were satisfied and yet the Village imposed a condition outside the boundaries of the applicable ordinances (though this latter point was in contention in the the case before the Court), mandamus would be available. Gateway argued that the Village's imposition of the cross-access condition was outside the legal parameters of the site plan approval process, and thus not a proper subject for quasi-judicial consideration.

This Court ultimately rejected Gateway's arguments. We affirmed in a written opinion, Key Biscayne Gateway Partners, Ltd. v. Village of Key Biscayne, 172 So.3d 499 (Fla. 3d DCA 2015), holding that (a) mandamus will only lie to command the performance of a ministerial act, and (b) the Village's hearing and decision constituted quasi-judicial fact-finding and an exercise of its discretion.

On remand, the Village renewed its motion for sanctions against Gateway and its counsel under section 57.105. The Village reminded the trial court that its 2014 order had already ruled that sanctions would be awarded if its dismissal order was affirmed on appeal (the trial court had announced, at the 2014 hearing, "So that way you don't have to reargue this"). The trial court then entered its orders on entitlement and amount, and this appeal followed.

Analysis

Gateway argued in the trial court, as it has contended here, that certiorari is not an adequate legal remedy, "because it may just end up with the Court quashing the order, in which case, [Gateway] may just start back at square one in front of the same Village Council who has been systematically working to deprive them on [sic] their established property rights." This inherent limitation in the scope of relief available in certiorari has also been described by the Supreme Court of Florida:

An appellate court has no power in exercising its jurisdiction in certiorari to direct the respondent to take any particular action. It can only quash the order or decision under review and remand for further proceedings. See Broward County v. G.B.V. International, Ltd., 787 So.2d 838, 844 (Fla. 2001).

Miami-Dade Cty. v. Omnipoint Holdings, Inc., 863 So.2d 195, 198 n.2 (Fla. 2003).

An analysis of the briefing and oral argument regarding the viability of the mandamus claim in the record before us does not demonstrate a lack of good faith on the part of Gateway or its counsel. The claim for mandamus was presented to the trial court with a "good faith argument for the extension ... of existing law"-based on cases such as Disser and City of Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th DCA 1983), and particularly given the shortcomings of certiorari relief-and "with a reasonable expectation of success." That Gateway's argument did not succeed does not of itself demonstrate the level of frivolousness or lack of good faith demanded by section 57.105.

Such an order must also make written findings "as to whether the action was completely lacking in any justiciable issue of law or fact." Avis Rent A Car Systems, Inc. v. Newman, 641 So.2d 915, 915 (Fla. 3d DCA 1994). This the orders before us did not do. Simply conditioning sanctions on the success or failure of an appeal from the order of dismissal is insufficient to support the orders in the present case.

The orders under review are reversed and remanded, with directions to the trial court to vacate the orders awarding sanctions against Gateway and its counsel.

      The first order, entered November 24, 2014, reserved ruling but determined that the Village's motion for sanctions would be decided based on the results of an appeal to this Court of the trial court's dismissal order. Following this Court's affirmance of the dismissal order, Key Biscayne Gateway Partners, Ltd. v. Village of Key Biscayne, 172 So.3d 499 (Fla. 3d DCA 2015), the trial court entered orders on entitlement to sanctions (February 4, 2016) and amounts payable (February 23, 2017). Gateway and its counsel appealed all three orders.

      Gateway had filed a petition for mandamus before the February 2014 hearing on other grounds, and the Village had moved for dismissal. After the site plan hearing and conditional approval, Gateway amended its petition.

      In Disser, the plaintiffs sought mandamus to compel the City of Tampa to issue a special use permit for an alcoholic beverages classification. They also sought certiorari, as well as declaratory and monetary relief. The court held that mandamus would be a proper form of relief, save for the plaintiffs' inability to allege an essential fact regarding the public hearings. Although decisions of federal district courts are not binding upon a state court, they are "persuasive if well reasoned." State v. Dwyer, 332 So.2d 333, 335 (Fla. 1976).

      § 57.105(3)(a), Fla. Stat. (2016).


text:
    Sandra CASTILLO, Appellant, v. COSTCO WHOLESALE CORP., Appellee.
    No. 3D16-2185
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018
    Carlos D. Cabrera (Hollywood), for appellant.
    Cooney Trybus Kwavnick Peets and David F. Cooney and Kelly Lenahan (Fort Lauderdale), for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   SALTER, J.

Sandra Castillo appeals an order denying her motion for attorney's fees based on an offer of judgment to the appellee (defendant below), Costco Wholesale Corporation ("Costco"). The trial court denied the motion for fees based on Costco's objections that (1) the offer did not specify whether punitive damages were to be resolved as part of the proposed settlement, and (2) the offer was fatally ambiguous because it purported to settle all claims, "inclusive of any and all attorney fees and costs incurred as of the date of the acceptance of this offer," further stating "Attorney fees are part of the legal claims," but the complaint itself did not in fact pray for an award of attorney fees.

We reverse and remand for the trial court to grant the motion and to hear and determine the amount of Ms. Castillo's attorney's fees properly awardable. There is no dispute that Ms. Castillo obtained a final judgment after a jury trial awarding her damages "at least 25 percent greater" than her pretrial offer of judgment to Costco.

After the trial court had ruled in the present case, the Supreme Court of Florida issued its decision in Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So.3d 391 (Fla. 2016). In that case, the Court carefully examined the relationship between section 768.79, Florida Statutes, "Offers of judgment and demand for judgment," and Florida Rule of Civil Procedure 1.442, "Proposals for settlement." In that case, the plaintiff (Ms. Kuhajda) served written proposals for settlement that did not specify "whether the proposal includes attorneys' fees and whether attorneys' fees are part of the legal claim," a requirement in Rule 1.442(c)(2)(F). No such requirement is found in section 768.79. The Supreme Court held that the offers of judgment were not ambiguous:

We decline to invalidate Kuhajda's offers of judgment solely for violating a requirement in rule 1.442 that section 768.79 does not require. The procedural rule should no more be allowed to trump the statute here than the tail should be allowed to wag the dog. A procedural rule should not be strictly construed to defeat a statute it is designed to implement.

Kuhajda, 202 So.3d at 395-96. The Court also held that " Rule 1.442(c)(2)(F)'s requirements relating to attorney's fees are totally irrelevant to the settlement of a case in which attorney's fees are not sought." Id. at 395.

The terms regarding Ms. Castillo's offer were sufficient under section 768.79. The offer was in writing, stated that it was being made pursuant to the statute, named the party making the offer and the party to whom the offer was made, stated its total amount, and was to be construed "as including all damages which may be awarded in a final judgment." § 768.79(2), Fla. Stat. (2016). Costco's contention that the offer is ambiguous relates to a provision of Rule 1.442(c)(2)(F), and not to the statute which "trumps" that provision or renders it "totally irrelevant" under Kuhajda.

The order denying Ms. Castillo's motion for attorney's fees pursuant to section 768.79 is reversed and remanded with directions to grant the motion, fix the amount of fees to be awarded, and enter a final order accordingly.

      The complaint did not include a claim for punitive damages, and no motion to add such a claim pursuant to section 768.72, Florida Statutes (2012), was pending when the offer of judgment was served. Costco has commendably acknowledged that, based on controlling authority available after the ruling by the trial court, Ms. Castillo's "failure to identify whether punitive damages would be resolved as part of the settlement can no longer serve as a ground for finding the proposal defective." Initial Br. at 3 n.1.


text:
    Isabel DEL PINO-ALLEN, Appellant, v. Juan SANTELISES, Appellee.
    No. 3D17-1280
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018
    Isabel Del Pino-Allen, in proper person.
    Allen, Norton & Blue and Luke Savage and Jenna N. Kochen, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   SALTER, J.

Isabel Del Pino-Allen, a non-lawyer representing herself in this Court and in the circuit court case in which she was the plaintiff, appeals an order dismissing her complaint with prejudice. We reverse and remand the case for further proceedings.

Ms. Pino-Allen was a professor at Miami Dade College. After issuing a statutory notice regarding a public communication alleged to be false and defamatory, Ms. Pino-Allen sued another Miami Dade College professor and former colleague, defendant/appellee Juan Santelises, for slander. Ms. Pino-Allen alleged that Mr. Santelises made numerous false, malicious, and defamatory claims to the administration of Miami Dade College beginning in early 2015. Her complaint alleged that Mr. Santelises's statements were untrue, that they included allegations of "frequent acts of indecent exposure" in public, and that later those untrue statements became a reason provided by Miami Dade College for firing her in May 2015.

According to the complaint, Mr. Santelises worked with Ms. Pino-Allen and others on a textbook. He was not her supervisor. Ms. Pino-Allen alleges that Mr. Santelises made the false and defamatory statements regarding her in retaliation for her criticism of mistakes purportedly made by Mr. Santelises in part of the textbook.

Mr. Santelises filed a motion to dismiss the complaint based on his alleged status as a "public official" entitled to absolute immunity. The trial court granted the motion to dismiss with prejudice, and this appeal followed.

Analysis

Our review of the dismissal order is de novo. Kendall S. Med. Ctr., Inc. v. Consol. Ins. Nation, Inc., 219 So.3d 185, 188 (Fla. 3d DCA 2017). In considering the motion to dismiss, the trial court is limited to the four corners of the complaint, must accept all allegations within the complaint as true, and must draw all inferences in favor of the non-moving party. Id.

Pro se pleadings are to be construed liberally, and pro se litigants should be afforded "procedural latitude," though still subject to applicable procedural rules. See Hanna-Mack v. Bank of Am., N.A., 218 So.3d 971, 973 (Fla. 3d DCA 2017). Here, though occasionally imprecise, Ms. Pino-Allen's pro se complaint pled the elements of defamation: (1) publication; (2) falsity; (3) negligence (when the plaintiff is a private person); (4) damages; and (5) the defamatory nature of the statement. Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008).

Mr. Santelises's claim of absolute immunity is not discernible from the four corners of the complaint and applicable precedent, at this procedural juncture. It has not been established that Mr. Santelises occupies a high-ranking, political position within a governmental entity, or that he was required by administrative rule to evaluate the job performance of Ms. Pino-Allen. See City of Miami v. Wardlow, 403 So.2d 414, 416 (Fla. 1981). Nor do the four corners of the complaint establish that Mr. Santelises's allegedly defamatory statements all were made within the course and scope of his supervisory or other duties and some special position or status. Cassell v. India, 964 So.2d 190, 193-94 (Fla. 4th DCA 2007).

In Albritton v. Gandy, 531 So.2d 381 (Fla. 1st DCA 1988), a county commissioner allegedly engaged in a personal vendetta against a lower-level county employee and sought to have the employee fired. The communications were not privileged because the commissioner was not in charge of hiring and firing employees; there was no official purpose for his statements.

Factual issues outside the four corners of the complaint may crystallize such matters as the scope of Mr. Santelises's duties, the timing and recipient(s) of his allegedly-defamatory statements, the timing of any official investigation of any of the allegations by the employer, and the basis for characterizing a professor at Miami Dade College as a "public official." For the present, however, Ms. Pino-Allen's pro se complaint sufficiently alleges defamation-though we express no opinion as to the merits of such allegations-and Mr. Santelises has not established a basis for dismissal with prejudice at this procedural stage of the case.

Reversed and remanded for reinstatement of the complaint and for further proceedings.

      § 770.01, Fla. Stat. (2015).