author: LOGUE, J.

text:
    MVW MANAGEMENT, LLC, Appellant, v. REGALIA BEACH DEVELOPERS LLC, etc., et al., Appellees.
    No. 3D16-2198
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017
    Rehearing Denied October 11, 2017

      Leon Cosgrove, LLC, and Scott B. Cos-grove and Ellen Ross Belfer; McDermott Will & Emery LLP, and Marcos D. Jimenez, for appellant.
    Bilzin Sumberg Baena Price & Axelrod, LLP, and Michael N. Kreitzer and James J. Ward, for appellees.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   ON APPELLANT’S MOTION FOR REQUEST FOR ISSUANCE OF WRITTEN OPINION, CERTIFICATION, AND CLARIFICATION

LOGUE, J.

Appellant MVW Management, LLC, has filed a motion for a written opinion, for certification, and for clarification. We deny MVW’s request for certification. We grant the motion for clarification, withdraw the previously issued opinion, and substitute the following opinion in its stead.

MVW appeals a nonfinal order denying its claim for advancement of legal fees and costs from plaintiff Regalia Beach Developers, LLC. For the reasons stated below, we affirm.

Background

Regalia Beach Developers, LLC (Regalia), is a single purpose legal entity that owns the Regalia Beach Condominium. Louis Montello was elected and serves as manager of Regalia pursuant to the company’s operating agreement. Montello is also the principal of MVW Management, LLC, a company that Regalia hired to manage the Regalia Beach Condominium pursuant to a management agreement between Regalia and MVW. ■

Regalia filed an action against Montello and MVW for mismanagement.. Although this case involves first-party litigation, in which one party to a contract, sues another party to the contract, both Montello and MVW sought advancement of their litigation expenses pursuant to the indemnity provisions of the parties’ operating and management agreements. The trial court granted Montello advancement under the operating agreement, but it denied MVW advancement under both the operating and management agreements. MVW filed, this interlocutory appeal. We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(ii).'

Analysis

I. MVW is not entitled to advancement under Regalia’s operating agreement.

MVW claims it is entitled to advancement of its litigation expenses based on Regalia’s operating agreement. We conclude MVW is not entitled to advancement because MVW does not qualify as a “Covered Person” under the ■ operating agreement. ”

Regalia’s operating agreement includes exculpation and indemnification provisions that apply to first-party litigation like the litigation here between Regalia and MVW. Further, the “liability, exculpation and indemnification” section of the contract expressly provides for advancement of litigation expenses. Specifically, section 13.4 of the operating agreement states the following:

Expenses. To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in Section 13.3 hereof.

Here, the trial court determined Montel-lo was entitled to advancement because of his status as manager under Regalia’s operating agreement. But that determination does not mean MVW is also entitled to advancement.

As noted above, the relevant provisions of the operating agreement apply only to “Covered Persons,” a defined term. “Covered Person” is defined by the operating agreement as:

a Member; any Affiliate of a Member; any Manager; any officers, directors, shareholders, partners, employees, representatives or agents of a Member, any Affiliate of a Member; any employee or agent of the Company or its Affiliates; any Tax Matters Representative of the Company; or an officer of the Company that is not an employee.

MVW makes two arguments why it qualifies as a “Covered Person.” First, MVQ argues that it qualifies as a “Manager.” Although MVW is a manager of the construction, sales, and operations of the condominium under the separate management agreement, it is not a manager of Regalia under Regalia’s operating agreement. In fact, Regalia’s operating agreement defines “Manager” as “any Person as described in Article 6 and elected by the Members in accordance with the provisions of Article 7.” Article 6 of the operating agreement states that “the Manager may be designated, appointed, elected, removed, or replaced by the vote, approval, or consent of a Majority Interest of the members, and holds office until a successor has been elected and qualified or the Manager sooner resigns or is removed.” Section 6.2, titled “Initial Manager,” states that “[t]he Members hereby designate Louis R. Montello to serve as Manager for the Company.” And article 7 provides for an annual meeting “for the election of the Manager.” The plain language of the operating agreement shows that Montello was designated as “Manager”; MVW was not.

MVW next argues that it is a “Covered Person” under Regalia’s operating agreement because it is an agent of the manager, Montello, and therefore qualifies as “any employee or agent of the Company or its Affiliates.” We do not find this argument persuasive.

If the drafters of Regalia’s operating agreement intended to include agents of the Manager within the definition of “Covered Persons,” they could have done so explicitly. But the absence of any reference to the Manager’s agents in the definition of “Covered Person” leads us to conclude that the drafters did not intend to give the Manager’s agents the contractual status of “Covered Persons.”

Moreover, the drafters of Regalia’s operating agreement expressly included both the terms “Manager” and “Affiliate” in the definition of “Covered Person.” These separated terms suggest that the drafters did not intend the term “Manager” to be a subset of the term “Affiliate.” In other words, if “Manager” were subsumed within “Affiliate,” there would be no need to separately list “Manager.” MVW’s interpreta-, tion would make the inclusion of the term “Manager” in the definition redundant and unnecessary, contrary to the basic rule of contract interpretation that “[cjourts must ‘construe contracts in such a way as to give reasonable meaning to all provisions,’ rather than leaving part of the contract useless.” Publix Super Markets, Inc. v. Wilder Corp. of Delaware, 876 So.2d 652, 654 (Fla. 2d DCA 2004) (quoting Hardwick Props., Inc. v. Newbern, 711 So.2d 35, 40 (Fla. 1st DCA 1998)).

Accordingly, we conclude that MVW does not qualify as a “Covered Person” under Regalia’s operating agreement, and therefore it is not entitled to advancement of litigation fees and costs.

II. MVW is not entitled to advancement under the management agreement.

MVW also argues that it is entitled to advancement of its litigation expenses based on the management agreement between MVW and Regalia. Indeed, the management agreement provides that “[e]xpenses (including attorneys’ fees, court costs, judgments, fines, amounts paid in settlement and other payments) incurred by Manager [MVW] ■ • ■ shall be paid by Owner [Regalia] in advance of the final disposition of such action, suit or proceeding.” Notwithstanding this express provision, we conclude that the trial court properly denied MVW’s. request for advancement based on the management agreement because the provision does not apply to a first-party litigation case like this between the two parties to the contract.

The right to be indemnified for litigation expenses and the right to advancement of litigation expenses are related but different rights. Indemnification is the right to be paid litigation expenses at the end of a lawsuit, usually based on meeting several conditions, including successfully defeating a claim or showing good faith. See, e.g., § 607.0850(3), Fla. Stat. (2016). In contrast, advancement is the right to immediate, interim relief from the personal out-of-pocket expenses inevitably involved in the investigations and legal proceedings into which officers and directors are often drawn.

Advancement is in the nature of a loan: litigation expenses are paid as incurred, subject to. a statutory or contractual, requirement to pay back the advance if the officer or director’s defense is unsuccessful or other conditions are meet. See, e.g., § 607.0850(6); In re Adelphia Commc’ns Corp., 323 B.R. 345, 375 (Bankr. S.D.N.Y. 2005) (describing advancement as “a species of loan ... to an officer or director pending later determination of that person’s right to receive and retain indemnification,” and noting that a “corporation maintains the right to be repaid ... if the individual .is ultimately shown not to be entitled to indemnification”). It is well recognized that the rights to indemnification and advancement “encourage well-qualified persons to serve as directors and officers of ... corporations and, in that capacity, to be willing to commit their corporations, after the exercise of good faith and care, to risky transactions that promise a lucrative economic return.” Fasciana v. Elec. Data Sys. Corp., 829 A.2d 160, 170 (Del. Ch. 2003).

Although indemnity and advancement are separate rights, the right to advancement in this case is directly tied to the right to indemnification. The management agreement provides for advancement of litigation expenses only for defending any proceeding “described in section 5.2(a) above.” Section 5.2(a), the indemnification provision, states the following:

Owner agrees to defend, indemnify and hold harmless Manager and each of Manager’s members, officers, directors, employees and agents (collectively, in-eluding Manager, the “Manager Indemnified Parties” and each individually an “Indemnified Manager Party”), from, against and in respect of any and all demands, claims, actions or causes of action, losses, liabilities, obligations, penalties, damages, assessments, deficiencies, taxes, judgments, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys’ fees and expenses incurred by any' such Manager Indemnified Party in connection with the defense of any action, suit or other proceeding (including any administrative proceeding) (collectively, the “Indemnified Amounts”), as incurred, asserted against, imposed upon or paid, incurred or suffered by Manager or any Indemnified Manager Party as a result of the services' performed by Manager pursuant to this Agreement provided that Manager or such Manager Indemnified'Party acted in good faith and in a manner he, she or it reasonably believed to be in or not opposed to the best interests of Owner with respect to the Project, and, with réspect to any criminal action or pro-deeding, had no reasonable cause to believe his, her or its conduct was unlawful.

The language of this indemnification provision does not indicate whether it was intended to apply to first-party claims like the one Regalia brought against MVW. This is the fundamental problem with MVW’s argument.

Generally in Florida, indemnity provisions apply only to third-party claims. Florida law disfavors contracts that shift the cost of a party’s misconduct from the perpetrator to the injured party “because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear ,the risk of loss.” Sanislo v. Give Kids the World, Inc., 157 So.3d 256, 260, (Fla. 2015). Indeed, “indemnification agreements, can sometimes produce the same result as an exculpatory provision by shifting responsibility for the payment of damages back to the-injured party.” Id. at 265. For this reason, and as the trial court properly cautioned here, the view that general indemnity language automatically includes indemnity for first-party claims would “permit a garden variety indemnity clause to be used to exculpate a contracting party from liability to the other party to the agreement.” Order, Regalia Beach Dev. LLC v. MVW Mgmt. LLC, Case no. 16-3753 CA 22 (Fla. 11th Cir. June 30, 2016) (Hanzman, J.).

Exculpatory clauses are enforceable if, and only if, “the wording [is] so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.” Sanislo, 157 So.3d at 260-61. Because “indemnification agreements can sometimes produce the same result as an exculpatory provision by shifting responsibility .for the payment of damages back to the injured party,” id. at 265, a similar rule applies in Florida regarding whether indemnity provisions apply to first-party actions.

Contracts for direct indemnity will not be inferred; for indemnity to apply against first-party claims, the indemnification provision must clearly indicate that it applies to the acts of the other party to the contract. An indemnification provision that is silent or unclear whether it applies to first-party claims will normally be interpreted to apply only to third-party claims. For example, a tenant’s agreement do indemnify the landlord against “any and all claims” does not clearly and unequivocally express an intent to include claims by the tenant that result exclusively from the negligence of the landlord. Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So.2d 507, 511 (Fla. 1973).

This rule that indemnity provisions are limited to third-party claims unless a contract clearly and unambiguously shows an intent to extend indemnity to first-party claims is in accord with the' holdings in a majority of the jurisdictions that have considered similar 'issues. ’ See generally, NevadaCare, Inc. v. Dep’t of Human Servs., 783 N.W.2d 459, 471 (Iowa 2010) (noting that a clause that uses' “the terms ‘indemnify’ and ‘hold harmless’ indicates an intent by the parties to protect a party from claims made by third parties rather than those brought by a party to the contract” and “a party to a contract cannot use an indemnity clause to shift attorney fees between the parties unless the language-of the clause shows an intent to clearly and unambiguously shift the fees”); Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 952 A.2d 275, 287 (2008) (listing several cases applying the rule that indemnity provision must be interpreted narrowly).

Here, the indemnification provision in the parties’ management agreement falls short of expressly stating or indicating that MVW’s right to indemnification applies to a first-party claim like the one here by Regalia against MVW. A simple comparison of the language in Regalia’s operating agreement to the language in the parties’ management agreement resolves any doubt that the management agreement was not intended to apply to a first-party action. Regalia’s operating agreement contains unequivocal language indicating that its terms apply to first-party claims: .“No Covered Person shall be liable to the Company or any other Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person The management agreement lacks any such language. If the parties intended the provisions in the management .agreement to extend to first-party claims, they knew how to, do so, as evidenced by language in Regalia’s operating agreement. It is difficult to understand why the parties could have intended the less-explicit language of their management agreement to extend the same rights as the more-explicit language of Regalia’s operating agreement,

MVW argues that the indemnification language in the parties’" management agreement is virtually identical to language that the Florida Supreme Court held authorized attorney’s fee indemnification in Wendt v. La Costa Beach Resort Condo. Ass’n, Inc., 64 So.3d 1228, 1230 (Fla. 2011). In Wendt, the directors of a corporation who had been sued by the corporation for breach of fiduciary duty brought a separate action for indemnification of attorney’s fees and costs under section 607.0850, Florida Statutes. The trial court dismissed the directors’ lawsuit and the Fourth District affirmed based on the common law principle that a party is entitled to indemnification for attorney’s fees and costs only when it had been sued vicariously or technically for another’s wrongdoing—not for its own.

The Supreme Court reversed. It held that section 607.0850 authorizes indemnification of attorney’s fees and costs to a director sued in first-party litigation by his or her corporation and remanded for consideration on the merits. In so holding, the Court noted that subsection (2) expressly authorizes indemnity for attorney’s fees in any proceeding “by or in the right of the corporation to procure a judgment in its favor.” Id. at 1230. The Court compared this language to subsection (1), which expressly prohibits indemnity for- liability in “an action by, or in the right of, the corporation.” Id.

Contrary to MVW’s argument, therefore, the language in the parties’ management agreement is not virtually identical to the language in section 607.0850. In fact, the management agreement lacks the crucial, express language providing for indemnity of litigation expenses in any proceeding “by or in the right of the corporation to procure a judgment in its favor,” which is the basis of the holding in Wendt. Wendt, therefore, does not support MVW’s argument. Far from supporting MVW’s position, we believe the statute discussed in Wendt indicates that the public policy of Florida is to require that the inclusion or exclusion of first-party actions in indemnity provisions be expressly stated or otherwise made clear and unambiguous as was done in section 607.0850.

MVW also relies on this court’s-decision in Adweiss LLLP v. Daum, 208 So.3d 760, 761 (Fla. 3d DCA 2016). While the underlying facts, in Adweiss concern the advancement .of attorney’s fees in a first-party dispute involving an indemnification provision, virtually identical to the one in the parties’ management agreement here, Adweiss is not persuasive in this case for two reasons.

First, this court in Adweiss interpreted Delaware law while the instant case is governed by Florida law. And second, this court in Adweiss did not adjudicate the question of whether an indemnification provision applied to a first-party action. It has long been the law of Florida that “[n]o decision is authority on any question not raised and considered, although it may be involved in the facts of the case.” State ex rel. Helseth v. Du Rose, 99 Fla. 812, 128 So. 4, 6 (1930). For example, in Speedway SuperAmerica, LLC v. Tropic Enterprises., Inc., 966 So.2d 1, 3 (Fla. 2d DCA 2007), the Second District held that a trial court erred'by treating a judicial decision as binding on an issue that was not raised, argued, or analyzed. The Second District reasoned .that the decision could not be precedent on a particular issue because “[tjhat issue was not presented to the court, and it was not decided by the court.” Id.; See also Twyman v. Roell, 123 Fla. 2, 166 So. 215, 217 (1936) (“To be of value as a precedent, the questions raised by the pleadings and adjudicated in the case cited as a . precedent must be [o]n, point with those presented in the case at bar.”); Rey v. Philip Morris, Inc., 75 So.3d 378, 381 (Fla. 3d DCA 2011) (“No Florida appellate decision is -authority on any question not raised and considered, although it may be involved in the facts of the case.” (quotation omitted)).

The actual holding of Adweiss was that, under Delaware law, the inclusion of the word “defend” in an indemnification provision specifying that the Company shall “indemnify, defend and hold harmless” even without reference to advancement, entitled the manager to advancement of his litigation expenses. That was the issue briefed by the parties and decided by this Court. In Adweiss, no party argued that such an indemnification provision applied to only third-party claims; the opinion has no discussion on that point; and this Court made no express holding on that point. Accordingly, Adweiss does not govern our decision in this case.

Conclusion

The trial court correctly held that MVW is not entitled to advancement of legal fees in this first-party action brought against MVW by Regalia. MVW is not. entitled to advancement under Regalia’s operating agreement because it does not qualify as a “Covered Person” under the contract. And because the parties’ managing agreement does not explicitly extend its indemnification provision to first-party actions, we reject MVW’s argument that it is entitled to advancement of fees under that contract. Accordingly, we affirm.

Affirmed.

      . In this regard, Regalia’s operating agreement provides in pertinent part that “[n]o Covered Person shall be liable to the Company or any other Covered Person for any loss .., damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company,”

      . Regalia did not cross-appeal this determination.

      . We understand MVW makes its argument by analogy. Section 607.0850 applies to corporations. MVW is a limited liability company and would be governed by section 605.0408.


source: Caselaw Access Project

license: Public Domain

text:
    Jeremy ALTERS, et al., Petitioners, v. Alfredo VILLOLDO, et al., Respondents.
    No. 3D17-715
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017
    Rehearing Denied October 9, 2017

      Young, Berman, Karpf & Gonzalez,'P.A., and Andrew S. Berman, for petitioners.
    Hall, Lamb, Hall & Leto, and Andrew C. Hall, Matthew P. Leto, and Vanessa Pala-cio, for respondents.
    Before SUAREZ, LOGUE, and SCALES, JJ.
   LOGUE, J.

In the case below, Jeremy Alters and his law firm are being sued by former clients. Alters moved to recuse the former clients’ lawyers, Andrew Hall and his firm, because Hall ■ had previously represented both Alters and Alters’s former clients in unrelated matters.- The trial court denied Alters’s motion to recuse. Alters now petitions for a writ of certiorari to quash the order denying recusal. We deny the petition. • '

' Facts

In 2008, Jeremy Alters was retained to represent two brothers, Gustavo and Alfredo Villoldo, in- a lawsuit against Fidel Castro, the Republic of Cuba, and others for acts of terrorism. Alters obtained a judgment in state court for over $1.1 billion. The judgment, however, contained defects that made it uncollectable under the Foreign .Sovereign Immunities Act, .28 U.S.C. § 1605, Upon learning of this problem, the Villoldos terminated Alters and retained Hall to correct the judgment. After the Villoldos hired Hall to. correct Alters’!? work, .Alters also hired Hall to represent him in a case in'which two Argentine nationals were suing Alters for a share of the fees in a $410 million class action against Bank of America.

In mid-August of 2011, as he was about to obtain the corrected judgment in the Cuba ease, and while still representing both parties in unrelated matters, Hall reminded-a lawyer in Alters’s law firm that no charging lien had yet beén filed- in the Cuba case. Alters testified, and the trial judge found, that Hall was not representing Alters’s law firm during that eall. The Alters firm duly filed a charging lien later that month. On the same day, Hall obtained the corrected final judgment in the Cuba matter.

On June 20, 2013,' in his capacity as the Villoldos’s attorney, Hall sent Alters a letter disputing Alters’s charging lien. “My client has instructed,” Hall wrote, “that if you do not respond by the close of business tomorrow or should you insist on the Charging lien being enforced, the Villoldo Defendants will be compelled to vigorously resist that Charging Lien.” At the time, it appears Hall was still representing Alters in the Bank of America class action dispute. On November 25, 2013, Hall wrote Alters saying he could no longer represent him in the Bank of America matter because Alters was holding itself out as co-counsel with Hall on the case involving the correction of the Cuba judgment despite having been previously terminated by the Villoldos.

On December 20, 2013, Alters entered into a settlement agreement with the-Vil-loldos- over the charging lien. The agreement provided that he be paid $175,000 immediately, and later, a percentage of the total amount collected once the relationship between the United States and Cuba normalized, Cuba was taken off the list of terrorist nations, and the State Department directed a payment be made. The agreement contained language indicating that certain conditions be completed “through the efforts of Jeremy Alters” or his law firm. Hall did not represent either party in the dispute or the settlement.

On March 6, 2016, the Villoldos filed the complaint in the instant case against Alters seeking a declaratory judgment that Alters had no right to further compensation under the settlement agreement. Hall represented the Villoldos in that action. Alters and his firm responded by moving to recuse Hall. The trial court held an extensive evidentiary hearing, made detailed finclings of fact, and denied the motion. Alters and his firm timely filed a petition for writ of certiorari.

Analysis

“[Djisqualification of a party’s lawyer in a civil case [is] a drastic remedy, one that must be employed only in limited circumstances.” Gutierrez v. Rubio, 126 So.3d 320, 321 (Fla. 3d DCA 2013). “Motions for disqualification are . generally viewed with skepticism because disqualify cation of counsel impinges on a party’s right to employ a lawyer of choice, and such motions are often interposed for tactical purposes.” Alexander v. Tandem Staffing Sols., Inc., 881 So.2d 607, 608-09 (Fla. 4th DCA 2004). “The standard of review for orders entered on motions to disqualify counsel is that of an abuse of discretion.” Applied Dig. Sols., Inc. v. Vasa, 941 So.2d 404, 408 (Fla. 4th DCA 2006).

The Florida Supreme Court has observed, “the Florida Rules of Professional Conduct provide the standard for determining whether counsel should be disqualified in a given case.” Young v. Achenbauch, 136 So.3d 575, 580 (Fla. 2014). Alters was not Hall’s current client when Hall filed the complaint against Alters. He was Hall’s former client. The current lawsuit was filed approximately two-and a-half years after Hall stopped representing Alters in the Bank of America class action fee dispute. For this reason, the trial court properly determined that Hall’s responsibility to recuse himself in litigation against Alters is governed by Rule 4-1.9 of the Rules Regulating the Florida Bar, which deals with a lawyer’s responsibility to former clients.

In pertinent part, Rule 4—1.9(a) provides that a lawyer who has formerly represented á client in a matter must not afterwards “represent another person in the same or a substantially related,'matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.” R. Regulating Fla. Bar 4-1.9(a). The application of this provision to the current dispute turns on the phrase “substantially related matter.” The Florida Supreme Court has explained the meaning of “substantially related” in this context as follows:

Matters are “substantially related” for purposes of this rule if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work' that the lawyer performed for the former client. For example, á lawyer who has previously represented a client "in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. •

In re Amendments to the Rules Regulating Fla. Bar, 933 So.2d 417, 445 (Fla. 2006).

Hall’s current representation of the Vil-loldos against Alters involves a dispute over the December 20, 2013 Cuba settlement agreement, between Alters and the Villoldos. Hall’s prior representation of Alters involved a dispute over fees in a class action against Bank of America. As Alters candidly admitted at trial and in his petition, there is no overlap between the two representations. They do not involve the same underlying dispute or transaction. In the current case, Hall will not be required to attack work that he performed for Alters. The two disputes are not substantially related. Indeed, they have absolutely nothing to do with each other. For this reason, Rule 4-1.9 does not preclude Hall from representing the Villoldos in the current matter.

Alters, however, responds by citing to our case, Brent v. Smathers, 529 So.2d 1267, 1269 (Fla. 3d DCA 1988), as expanding the restrictions of Rule 4-1.9 to include a prohibition on bringing suit against a former client when to do so would violate the principle of client loyalty and create an appearance of impropriety. We do not read that case so broadly.

Brent involved a petition for certiorari to recuse the law firm of Smathers and Thompson from representing George Smathers. Smathers and Maxine Brent had served as co-personal representatives of an estate and co-trustees of a related trust. The law firm represented both parties in that capacity. Brent then sued Smathers for breach of fiduciary duty. The law firm defended Smathers, and as a result, Brent moved to recuse the law firm. The trial court denied the motion, and Brent appealed.

This Court found that the law firm’s defense of Smathers to Brent’s claim of breach of fiduciary duty was substantially related to the firm’s representation of Smathers and Brent as co-representatives and co-trustees: “It is undisputed that Smathers and Thompson represented Brent in the administration of the estate and that they now represent co-administrator Smathers and the beneficiaries of that same trust and estate for which the firm represented Brent.” Id. at 1268. Accordingly, this Court held that Rule 4-1.9 required the law firm to recuse. Id.

The law firm in Brent, however, countered that the Rules Regulating the Florida Bar did not apply to that particular case as the Rules only apply when a client’s expectation of confidentiality is at stake. Id. at 1269. The law firm contended that there was no confidentially between Smathers and Brent as co-trustees. Id.

In response to this argument, this Court noted that the rules protected not only a client’s right to confidentiality, but also a client’s right to loyalty: “Although lawyer-client confidentiality is an important factor in determining the appropriateness of representation, nowhere do the rules reflect that it is the sole determining factor. The fact that the plaintiff may have no expectation of confidentiality as between co-trustees is not dispositive of the issue.” Id.

Contrary to Alters’s contention, this court’s ruling in Brent did not modify Rule 4-1.9 by adding a new substantive prohibition which requires a lawyer to recuse in a lawsuit against a former client if the representation can be deemed “disloyal” or creates an “appearance of impropriety.” Any such substantive change would have to be made by the Florida Supreme Court. The Brent decision merely explained why the Rules applied even if a client’s reasonable expectation of confidentiality was not at stake.

For the reasons discussed above, we hold there was no departure from the essential requirements of law when the trial court exercised its discretion to deny Alters’s motion to recuse.

Petition denied.


author: ROTHENBERG, C.J. EMAS, J.,

text:
    Antonio M. HERNANDEZ, Sr., Appellant, v. Eusebio G. HERNANDEZ, etc., Appellee.
    No. 3D16-1464
    District Court of Appeal of Florida, Third District.
    Opinion filed September 06, 2017.
    Laura Bourne Burkhalter, PA and Laura Bourne Burkhalter, for appellant.
    Sloto & Diamond, PLLC, and James R. Sloto and Seth S. Diamond, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.
   ROTHENBERG, C.J.

In this guardianship case, Antonio Hernandez, Sr. ("Antonio”) appeals the probate court’s order finding that Antonio lacks standing to object to several court orders authorizing payment of attorney’s fees from his mother, Elena Hernandez’s (“the Ward”) assets. We have reviewed the probate court’s determination of standing de novo, see Bivins v. Rogers, 147 So.3d 549 (Fla. 4th DCA 2014), and affirm.

BACKGROUND

The Ward is a widow with three adult children: the appellant, Antonio; the ap-pellee, Eusebio G. Hernandez (“Eusebio”); and Elena Hernandezr-Kucey (“Elena”). On October 17, 2014, Eusebio filed a petition for the appointment of a plenary guardian for his eighty-five-year-old mother. Thereafter, the probate court found that the Ward was totally incapacitated, and on December 16, 2014, the court appointed Eusebio as plenary guardian over the Ward and her property. The probate court’s order delegated all of the Ward’s delegable rights to Eusebio, including the right to sue and defend suits and the right to contract.

Thereafter, Eusebio filed petitions to engage litigation counsel to file (1) an ejectment action against Antonio; Antonio’s wife, Leonor Robles Hernandez (“Leonor”); and their son, Antonio M. Hernandez, Jr. (“Antonio, Jr.”); and (2) a lawsuit against Antonio, Leonor, and Antonio, Jr. for damages related to their alleged conspiracy to deprive the' Ward of over $222,000, undue influence, and abuse and neglect of a vulnerable adult. These petitions were granted, as was Eusebio’s subsequent petition for authorization to file’an adversary petition for damages and equitable relief based on the above grounds, which he claimed resulted in the dissipation of significant assets belonging to the Ward.

The adversary petition alleges that the Ward suffered a serious fall in November 2013 and subsequently suffered' multiple urinary tract infections that further impaired her balance and cognition to the point where the Ward became completely incapable of taking care of herself. Although Eusebio and Elena wanted to place the Ward in an assisted living facility, where the Ward could receive round-the-clock care, Antonio objected and insisted that the Ward remain in her home with a caretaker hired by Antonio. The petition further alleges that the caretaker Antonio hired was unqualified and an alcoholic, and as a result of the caretaker’s deficient care, the Ward was hospitalized six times between November 2013 and November 2014 from severe urinary tract infections, became whéelchair bound, and ultimately required total care. Eusebio claims in the petition that he found his mother several times sitting in a recliner in her home, covered in her own urine and feces. Upon being named guardian, Eusebio, with his sister Elena’s consent, promptly moved the Ward into the Palace Renaissance (“the Palace”), an assisted living facility where the Ward has steadily improved both mentally and physically. The Ward is now able to ambulate with the aid of a walker and has not required any further hospitalizations.

The adversary petition alleges that Antonio intentionally withheld proper medical care from the Ward in an effort to expedite her death and preserve the Ward’s assets in order to ensure a larger inheritance by Antonio and Antonio’s family. The petition alleges that Antonio, Leonor, and Antonio, Jr. conspired and acted in concert to allow the Ward’s physical,' medical,- and psychological condition to deteriorate, not only to expedite the Ward’s death, but also to enable them to exert undue influence over her and obtain dominion and control over her assets.

This conspiracy was allegedly mounted and executed due to Antonio and his family’s financial difficulties. After enjoying a lifestyle of wealth, comfort, and luxury, Antonio and his family’s various businesses and real estate investments began to fail in 2008. Beginning in 2009, eight separate foreclosure proceedings -were initiated by various banks, resulting in numerous final judgments of foreclosure and deficiency judgments. Leonor also unsuccessfully petitioned for relief in the United States Bankruptcy Court on August 24,2011.

The adversary petition alleges that •based upon Antonio’s financial difficulties, Antonio, Leonor, and Antonio, Jr. conspired together and used undue influence over the deteriorating, weakened, and dependent Ward, in order to convert the Ward’s assets, which the Ward needed for her own care, to Antonio and his family’s own use. Specifically, it is alleged that they were able to transfer $240,000.00 of the Ward’s assets into a bank account jointly held by the Ward arid Antonio, Jr., and then use $222,322.09 of the transferred funds to complete a cash purchase of real property located at 9128 S.W. 227 Lane, Miami, • Florida, which was purchased in Leonor’s name. Leonor and Antonio have lived at 9128 S.W. 227 Lane since the acquisition.

In addition to filing the adversary petition, Eusebio petitioned the probate court for authorization to sell the Ward’s homestead property to help pay for the Ward’s healthcare, debts, and expenses.' Although the Ward’s health and mobility were improving since Eusebio had removed her to the Palace, Antonio, Leonor, and Antonio, Jr. objected to the Ward’s residency and care at the Palace and the sale of the Ward’s homestead to pay .for her continued care at, the Palace, and insisted that she be returned to her home. The appointment of counsel was necessitated by Antonio, Leonor, and Antonio, Jr.’s objection to the appointment of a guardian, the transfer of the Ward to the Palace, and the sale of the Ward’s homestead to pay for her care. Counsel was also necessary to pursue the lawsuit filed by Eusebio against Antonio, Leonor, and Antonio, Jr. for civil conspiracy, conversion, undue influence, an equitable lien, a constructive trust, abuse and neglect of a vulnerable adult, and exploitation of a vulnerable adult.

As required by the probate court, Euse-bio .periodically petitioned the court for orders approving and granting reasonable fees for the services performed by the law firms for the benefit of.the Ward, These petitions, which were filed by Eusebio with Elena’s consent, were considered and ruled on by the probate court with.no notice to Antonio. Antonio objected to these awards of attorney’s fees and costs, and- specifically those fees and costs incurred relevant to the adversary proceedings brought against him and his family, which Antonio argued were not for the benefit of the Ward and were excessive and unreasonable. Antonio moved to vacate these awards based on Eusebio’s failure to serve notice upon Antonio as an interested person and as the next of kin of the Ward.

The probate court denied Antonio’s objection and motion to vacate the attorney’s fees orders, finding that Antonio was not an “interested person” within the definition of section 731.201(23), Florida Statutes (2016), of the Florida Probate Code, and Hayes v. Guardianship of Thompson, 952 So.2d 498 (Fla. 2006). Thus, as Antonio' was not an “interested party,” he was not entitled to receive notice regarding these attorney’s fees petitions and therefore lacked standing to object. This appeal followed.

ANALYSIS

Antonio contends that he had standing to move to vacate the probate court’s orders granting attorney’s fees and; costs incurred in the guardianship proceedings, (which he claims were excessive, unreasonable, and entered without notice to him), because he is an “interested person.” Antonio claims that he is an active participant in the guardianship proceedings and filed a request for copies under rule 5.060 of the Florida Probate Rules, and thus, he was entitled to notice and to object to the fees requested by Eusebio as the plenary guardian.

Our analysis is directed by Chapter 744 of the Florida Statutes, which governs guardianship proceedings, section 744.108, which governs guardian’s and attorney’s fees and expenses, and Hayes. Section 744.108 provides that “[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,” § 744.108(1), Fla. Stat.(2016), and “[a] petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated,” § 744.108(b), Fla. Stat. (2016).

Because the guardianship statute only provides that notice be given to the guardian and the ward when approving petitions for fees and costs, the Florida Supreme Court in Hayes addressed whether standing to participate in guardianship proceedings under this statute is limited to the guardian and the ward or whether it extends to other parties. Hayes, 952 So.2d at 502. The Hayes court noted that “standing to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted,” id. at 505, and that “[i]n guardianship proceedings, the overwhelming public policy is the protection of the ward.” Id. (citing § 744.1012, Fla. Stat. (2006)). “Thus, unlike most other types of litigation, guardianship proceedings are not adversarial and are governed by a comprehensive statutory code and set of procedural rules dictating who should receive notice of a particular proceeding.” Id. at 505.

Although section 744.108 does not specifically require that an “interested person” receive notice, Florida Probate Rule 5.060 requires notice to persons the trial court concludes is an “interested person” so long as the requirements of the rule have been satisfied. Hayes, 952 So.2d at 507. Thus, the Court in Hayes considered who is an “interested person” in such proceedings. The Florida Supreme Court concluded that the determination of who is an interested person in a guardianship proceeding will “vary from time to time and must be determined according to the particular purpose of, and the matter involved in, any proceedings.” Id. at 507 (citing § 731.201(21), Fla. Stat. (2006)). Thus, “the definition of ‘interested person’ requires the trial court to evaluate the nature of both the proceeding and the interest asserted.” Id.

Simply being next of kin does not confer “interested person” status. Rudolph v. Rosecan, 154 So.3d 381, 385 (Fla. 4th DCA 2015). An “interested person” is “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” § 731.201(23), Fla. Stat. (2016). For example, “[i]n any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person.” Id. “Thus, unlike a ward, a guardian, or next of kin, who are specific persons occupying fínate, statutorily defined roles, the definition of “interested person” requires the trial court to evaluate the nature of both the proceeding and the interest asserted.” Hayes, 952 So.2d at 507 (footnote omitted).

Antonio contends that because he is an active participant in the guardianship proceedings and filed a notice and request for copies under rule 5.060, he is an interested party entitled to notice and with standing to object to the attorney’s fees petitions. However, filing a notice and request for copies under rule 5.060 and being an active participant in the proceedings does not necessarily entitle Antonio to participate in the proceedings involving requests for attorneys fees by the Ward’s attorney. See Hayes, 952 So.2d at 508-09. That is because the court must still consider the nature of the proceedings.

Here, as in Hayes, Antonio’s involvement in the guardianship proceedings was necessitated by his alleged mistreatment of the Ward and misappropriation of her funds and, thus, does- not entitle him to participate in the attorney’s fees proceedings brought- by the Ward’s guardian at the request of the Ward’s attorney. See id. (holding that the petitioners’ “involvement in the guardianship proceedings that were necessitated by their own mistreatment of the ward and misappropriation of her funds does not entitle them to participate in proceedings involving requests for attorney’s fees by the ward’s attorney”).

Given the findings of the trial court that attribute the need for the guardianship directly to the petitioners, it would appear inescapable that the fees they now claim are excessive came as a result of their own misconduct. Petitioners’ concern about potentially excessive fees sounds a bit like the apocryphal story of the man who kills both his parents and begs the court for mercy because he is an orphan!

Id. at 509.

The probate court considered, the nature of the proceedings before concluding that Antonio was not entitled to notice and lacked standing to object to the attorney’s fees requests related to the guardianship that are the subject of this appeal. Those proceedings, which necessitated the appointment of an attorney to represent the Ward include: (1) Eusebio’s and Elena’s petition for the appointment of a plenary guardian, to which Antonio objected; (2) the appointment of Eusebio as guardian, to which Antonio objected; (3) the petition to sell the Ward’s homestead in order to pay for the Ward’s care and treatment at the Palace where the Ward has steadily improved since her transfer there by the guardian, to which Antonio also objected; and (4) the petition to file an adversary proceeding against Antonio, Leonor, and Antonio, Jr. for their alleged, mistreatment of the Ward, undue influence over, her, and misappropriation of her assets.

We, therefore, find no error in the probate coúrt’s determination that Antonio lacks standing to object to the attorney’s fees requests pertaining to the services rendered as to these guardianship proceedings. As the Florida Supreme Court concluded in Hayes:' “There must be a balance between ensuring that these petitions for attorney’s fees are carefully scrutinized and ensuring that these petitions are not subject to endless challenges by those whose only interest is to maximize their potential inheritance.” Id. at 509.

Antonio has received notice and was afforded the opportunity to object and to participate in the guardianship proceedings relating to the appointment of a plenary guardian for the Ward, the appointment of Eusebio as the guardian, the sale of the Ward’s homestead, the petition to initiate adversary proceedings against Antonio and his family’s alleged mistreatment of and undue influence over the Ward. We conclude that the order finding that Antonio lacks standing to contest the attorney’s fees, which were necessitated by Antonio’s unsuccessful objections to these petitions, strikes the balance suggested by the Florida Supreme Court. It permits the probate court and the guardian to carefully scrutinize the fee requests but limits the “endless challenges by those whose only interest is to maximize their potential inheritance.” Id. Accordingly, we affirm the order on appeal.

Affirmed.

SUAREZ, J., concurs.

EMAS, J.,

dissenting.

I respectfully dissent, because I conclude that Antonio M. Hernandez was an “interested person” within the meaning of section 731.201(23), Florida Statutes (2016) and Florida Probate Rule 5.060, and thus had standing to .participate in the.specific proceedings below which form the basis for this appeal. The parties to this appeal agree that our standard of review is de novo. See Rudolph v. Rosecan, 154 So.3d 381 (Fla. 4th DCA 2014); Agee v. Brown, 73 So.3d 882 (Fla. 4th DCA 2011); Wheeler v. Powers, 972 So.2d 285 (Fla. 5th DCA 2008).

To provide proper context, it is important to note what is not at issue in this appeal. The question is not whether the trial court was correct in granting appel-lees’ numerous petitions for orders approving attorney’s fees; whether the trial court correctly authorized Eusebio to file an adversary petition against Antonio; or whether Antonio in fact engaged in the conduct alleged by Eusebio. The very narrow issue in this appeal is whether Antonio M. Hernandez was simply entitled to notice of, and an opportunity to be heard at, the proceedings held by the trial court regarding the petitions for attorney’s fees and costs for services by attorneys handling the adversary petition on behalf of Eusebio.

The majority cites to the Florida Supreme Court’s decision in Hayes v. Guardianship of Thompson, 952 So.2d 498 (Fla. 2006). While I agree that the Hayes decision is helpful, it is not dispositive of the question presented here. -

The linchpin of the majority’s holding is found at *10 of its opinion:

Here, as in Hayes [v. G’ship of Thompson, 952 So.2d 498 (Fla. 2006) ], Antonio’s involvement in the guardianship proceedings was necessitated by his own alleged mistreatment of the Ward and misappropriation of her funds and thus does not- entitle him to participate in the attorney’s fees proceedings brought by the Ward’s guardian at the request of the Ward’s attorney.

But this conclusion puts the proverbial cart before the horse and ignores a singular and dispositive distinction between this case and Hayes: in the instant case, the three pages of the. majority’s opinion detailing the “allegations” in Eusebio’s adversary petition are simply that—allegations. There has been no evidentiary hearing or other determination or finding of fact regarding those allegations.

By contrast, the trial court in Hayes had already determined this issue and made an actual finding of improper conduct and actions by the heirs. See id. at 509 (noting that petitioners were not entitled to notice and to participate in the proceedings “[g]iven the findings of the trial court that attribute the need for the guardianship directly to the petitioners .... ”); In the instant case,' we have only the allegations of Eusebio—allegations which continue to be denied and contested by Antonio. The majority, apparently satisfied with such, concludes in circular-logic fashion that Antonio cannot be an interested person with standing to be heard on, or contest, the request for attorney’s fees, because the fees requested were'necessitated by Antonio’s “alleged mistreatment of the Ward and misappropriation of funds.” If at some point Eusebio’s allegations are determined to be unfounded or not proven, will Antonio then be deemed (nunc pro tunc) an “interested person”? The answer to this question would appear to be obvious, but equally obvious is that this answer would come too late to' provide meaningful relief.

I would hold that Antonio is an “interested person” because Antonio may reasonably be expected to be affected by the outcome of a proceeding which will result in the payment of nearly $100,000 from his mother s assets, an amount'which exceeds the total value of the liquid assets of her estate, Although being an heir, or next of kin, does not automatically. confer “interested person” status, Rudolph, 154 So.3d at 385, the Florida Supreme, Court in Hayes acknowledged that “courts must scrupulously oversee the handling of the affairs of incompetent persons under their jurisdiction and err on the side of over-supervising rather than indifference.” Hayes, 952 So.2d at 508. I do not suggest that Antonio has any right to prevent the trial court from approving the requests for attorney’s fees and costs; Nor do I suggest that the trial court is prevented from considering Antonio’s possible motive, bias or interest in lodging any objections to the requests for attorney’s fees and costs. I do suggest, however, that he is an interested person who has the right to receive notice of, and to be heard at, the proceedings at which the trial court is considering and ruling upon the requests.

I therefore respectfully dissent.

      . (1) In case number 09-86047, a final judg-meht of foreclosure and a final- deficiency judgment pertaining to property located at 8100 Harding Avenue, Miami Beach, Florida, were entered.
      (2) In case number 09-86038, foreclosure proceedings pertaining to property located at 1015 Palm Avenue, Hialeah, Florida, were initiated, which resulted in a writ of possession in favor of the bank.
      (3) In case number 09-86054, a final judgment of foreclosure was entered on June 16, 2010 pertaining to property located at 420 78th Street, Miami Beach, Florida.
      (4) In case number 09-86066, a final judgment of foreclosure was entered pertaining to property located at 6910-6920 Byron Avenue, Miami Beach, Florida, and a final deficiency judgment was entered against Antonio.
      (5) In case number 09-13881, a final judgment of foreclosure was entered (no location-was provided in the adversary petition),
      (6) In case number 10-51107, a final judgment of foreclosure was entered on January 13,1 2011, pertaining to property located at 7730-7740 Dickens Avenue, Miami Beach, Florida.
      (7) In case number 10-61392, a final judgement , of foreclosure was entered on September 27, 2011, pertaining to property •located at 1224 Burlington Street, Opa Loc-ka, Florida.
      (8) In case number 11-19728, foreclosure proceedings were initiated against a Las Bellezas Condominium Unit, located in Hialeah, Florida.

      , The definition of “interested party" has since been renumbered to section 731.201(23).

      . In May of 2016, the guardian filed a 2015 annual guardianship accounting, listing. the Ward’s liquid assets, with a total value of $81,267.15.


author: PER CURIAM.

text:
    Anthony J. PETERSEN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2480
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
    Rehearing Denied November 28, 2017

      Anthony J. Petersen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


text:
    Maurice A. STILLS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0317
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017
    Maurice A. Stills, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Charlie Lee, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as successive.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


author: SCALES, J.

text:
    Eugene ALLEN, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-1907
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017
    Rehearing Denied October 6, 2017

      Eugene Allen, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before LAGOA, EMAS and SCALES, JJ.
   SCALES, J.

Eugene Allen files this petition for writ of certiorari seeking to compel the Department of Corrections (“DOC”) to restore gain time he previously forfeited due to violation of his conditional release. We deny the writ without prejudice to Allen obtaining a final order from DOC from which Allen can seek mandamus relief in the circuit court.

“The proper remedy to compel an award of gain time is a petition for writ of mandamus filed in the circuit court after administrative procedures through DOC have been exhausted.” Duggan v. Dep’t of Corrections, 665 So.2d 1152, 1153 (Fla. 5th DCA 1996) (emphasis added). While not entirely clear on the scant record before us, it appears the trial court found that it was without jurisdiction to consider, and therefore denied, Allen’s petition for writ of mandamus because Allen did not exhaust DOC administrative procedures pri- or to seeking relief in the circuit court. Specifically, the only thing in the record before us is an unsigned memorandum— purportedly from someone working at the Bureau of Classification Management for DOC to Everglades Correctional Institution, where Allen is currently incarcerated—which states that Allen is ineligible for restoration of gain time.

While Allen may have initiated an administrative remedy, it does not appear to us that DOC has taken final action in this matter. Therefore, it appears the trial court properly denied Allen’s mandamus petition because it lacked jurisdiction. Similarly we deny Allen’s petition for writ of certiorari without prejudice so that Allen may exhaust his administrative remedies and, if unsuccessful, file a petition for writ of mandamus in the circuit court.

Petition denied.


author: SALTER, J.

text:
    David J. LANDAU, as TRUSTEE OF the FLOIS N. LANDAU TRUST DATED JANUARY 23, 2002, as Amended, Appellant, v. Susan L. LANDAU, Appellee.
    No. 3D17-1503
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017.
    Rehearing Denied October 10, 2017

      Kaplan Young & Moll Parrón and Matthew Seth Sarelson, for appellant.
    Carlton Fields Jorden Burt, P.A., and Jose A, Loredo, Nancy C.' Ciampa and Heather M. Jonczak, for appellee.
    Before SALTER, LOGUE and SCALES, JJ.
   SALTER, J.

This is an expedited appeal from an order freezing the assets of a trust created by Flois Landau, the late wife of the appellant and mother of the appellee. The appellant, David Landau, became trustee of the trust (and personal representative of his late wife’s estate) when his wife passed away in 2013, and he.is the lifetime net income beneficiary of the trust. The appel-lee, Susan Landau, and two other children of Flois. Landau, are the three, qualified remainder beneficiaries entitled to equal shares of the remaining net, trust assets upon the, death of David Landau.

The terms of the trust allow David Landau to distribute to himself (a) quarterly, the net trust income, and (b) amounts of principal “not to exceed the greater of $5,000.00 or 5% of the value of the principal of the trust” on the first day of December each year, on a non-cumulative basis. In addition, David Landau may pay additional amounts to himself determined to be necessary .for his “health, support and maintenance;” in his “accustomed manner of living,” subject to a limitation that any determination that such a payment is “necessary” must take into account all his income and assets. ■ .

Susan Landau became increasingly concerned when David Landau failed to effectuate the transfer of some $2,000,000.00 in estate assets to the trust pursuant to an order entered, in Flois Landau’s probate case. She requested information regarding the assets and copies of the annual trust accountings required by sections 736.0813 and 736.08135, Florida Statutes (2016). When this information was not forthcoming, in January 2016 Susan Landau filed a verified complaint to compel trust account-ings.

The following month, David Landau filed an answer conceding that he had not filed the required annual accountings. When David Landau provided an unsigned trust accounting in March 2016 (for. calendar year 2015), the document did not reflect an asset valued at approximately $1,000,000.00 (despite the probate court order authorizing transfer from Flois Landau’s estate to the trust). That unsigned accounting also showed, without explanation, distributions far exceeding the Trust’s net income for the year.

Thereafter, Susan Landau moved to amend her verified complaint to add counts for breach of trust, removal of trustee, and a temporary injunction to freeze assets of the trust based on David Landau’s alleged breaches of his fiduciary duties. She also moved for an order prohibiting David Landau from paying attorney’s fees or costs from the trust. At a hearing in February 2017, Susan Landau contended that David Landau had made excessive distributions to himself, failed to filé tax returns for the trust, made excessive payments of attorney’s fees, and failed to supply proper 2015 and 2016 trust ac-countings.

The trial court confirmed at the February hearing that David Landau’s counsel would advise him “appropriately as to the importance of complying with all statutes including trust accounting,, the filing of taxes.” Despite this gracious deferral to permit David Landau to comply, when a continued hearing was conducted in May 2017, David Landau still had not filed or served a 2016 accounting, the deficient 2015 trust accounting had not been corrected, and tax returns for both 2015 and 2016 had not been filed. Further, David Landau had not reopened the Flois Landau estate to permit the conveyance of trust assets into the trust.

The trial court then ordered the trust assets frozen until David Landau completed and filed the 2016 trust accounting. This appeal followed. A day after he filed the notice of appeal of the freeze order, David Landau filed the 2016 trust accounting.

Analysis

We review 'the order as an injunction to preserve assets of the estate and the trust for the protection of the ultimate beneficiaries. We will affirm the order absent a dear abuse of discretion. State Inv. Holding, Inc. v. Merrick P’ship, LLC, 103 So.3d 232 (Fla. 3d DCA 2012). David Landau’s conceded failure to file timely and accurate annual accountings with the beneficiaries was a breach of his duty to the beneficiaries. McCormick v. Cox, 118 So.3d 980, 986-87 (Fla. 3d DCA 2013).

We reject David Landau’s argument that the order freezing trust assets violated due process and applicable rules. The probate court’s inherent jurisdiction to protect the assets under its supervision is well established. In re Estate of Barsanti, 773 So.2d 1206, 1208 (Fla. 3d DCA 2000); Estate of Conger v. Conger, 414 So.2d 230 (Fla. 3d DCA 1982). Susan Landau’s pleadings clearly apprised David Landau of the claims against him and the relief sought.

Affirmed.

      . No such payments had been authorized by the court, and David Landau had not served any notice of intent to pay such fees or costs from the trust as required by section 736,0802(10)(b), Florida Statutes (2017).


author: SUAREZ, J.

text:
    PENNY’S INVESTMENT CORP., Appellant, v. Alexander GASAMANES and Yeremy Hernandez Prieto, Appellees.
    No. 3D15-1136
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017
    Benitez & Associates and Leo Benitez and Lizette Benitez, for appellant.
    Silver & Silver and Ira S. Silver, for appellees.
    Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

Penny’s Investment Corp. (Penny’s) appeals a final judgment granting Appellees Alexander Gasamanes (“Gasamanes”) and Yeremy Hernandez Prieto (“Prieto”) a refund of their home construction deposits. We affirm.

On March 20, 2011, Appellees executed a Sales Agreement (“Agreement”) to purchase a home which was to be constructed by Penny’s. Penny’s actually executed the Agreement on March 23, 2011 because the person with whom Appellees interacted on March 20th was merely a sales agent for a different entity and was not authorized to execute the Agreement on Penny’s behalf. The Purchase price of the home was $239,900.00, and nothing in the Agreement indicated that the price of the home included any additional cost re-suiting from the location of the lot on which the home was to be built.

It is undisputed that on March 20, 2011 Appellees provided the sales agent with a check in the amount of $5,000.00. It is also undisputed that on March 23, 2011 Appel-lee Gasamanes went to the offices of the sales agent and delivered two additional checks, one in the amount of $18,990.00 and another for $15,000.00. The Agreement acknowledges receipt of the original $5,000.00 and sets forth a requirement that an “Additional 5% deposit” in the amount of $18,990.00 is due within 30 days after acceptance of the contract by seller. However, the Agreement makes no provision for the $15,000.00 payment. The initial cheek and the $18,990.00 check total $23,990.00, exactly 10% of the purchase price of the home, and the Agreement indicates that the balance due for the home after the deposits is $215,910.00.

The parties disagree about the purpose of the additional check. Penny’s claims it is an additional deposit required for a premium lot and a notation to that effect is written on the memo portion of the check. Appellees testified that they were never advised of any premium price for the location of the home they selected and deny any knowledge of any such additional deposit requirement. It is undisputed that the notation on the check was written in by the sales agent who received the check and not by either Appellee. It is also undisputed that the Agreement does not contain any provision or additional language indicating that the lot selected by Appel-lees was a “premium lot” or that there was any additional cost associated with the lot.

The Agreement contains a Mortgage Rider which states, in pertinent part:

THE PURCHASER’S obligation to close the above referenced Contract is subject to the PURCHASER obtaining a Mortgage Commitment in the amount of $191,920.
(A) The PURCHASER agrees to make application with FLORIDA MORTGAGE UNDERWRITERS, INC. the Lender selected by the SELLER and to execute all necessary papers for a Conventional Mortgage Loan (prevailing rates and terms) in the amount set forth above within five (5) working days of date. :
(C) PURCHASER shall notify SELLER in writing within forty-five (45) days of date hereof if he has or has not qualified for said financing. In the event. PURCHASER fails to notify the SELLER in writing within said 45 days period, it shall be conclusively presumed that PURCHASER has obtained a Mortgage Commitment in accordance with the terms of this Rider and this sale will proceed as an all cash transaction. (e.s.)
(D) If the PURCHASER fails to obtain said .Mortgage Commitment and has notified SELLER in writing within the time specified in Paragraph C of this Mortgage Rider, then all deposits made hereunder, will be returned to PURCHASER and this Contract will be null and void and all parties will be relieved of all liability hereunder.
(F) IN THE EVENT PURCHASER APPLIES WITH A LENDER OTHER THAN THE ONE SELECTED BY SELLER, THIS CONTRACT SHALL BE CONSIDERED AN “ALL CASH SALE” (e.s,) PURCHASER SHALL IMMEDIATELY MAKE AN ADDITIONAL NON-REFUNDABLE DEPOSIT OF 10% OF THE PURCHASE PRICE. THIS MORTGAGE RIDER AND THE FINANCING CONTINGENCY SHALL NOT APPLY. FAILURE TO MAKE THE ADDITIONAL DEPOSIT ON TIME SHALL. CONSTITUTE A DEFAULT UNDER THE CONTRACT, RECEIPT BY SELLER OF A QUALIFICATION OR PRE-QUALIFICATION LETTER FROM ANOTHER LENDER SHALL NOT REPRESENT A WAIVER OF THE CONDITIONS SET FORTH IN THIS PARAGRAPH.

In other words, the Mortgage Rider indicates that the sale will be “all-, cash” under two circumstances: (i) under the “conclusive presumption” which arises if the purchaser fails to notify the seller of a Mortgage Commitment from the seller’s chosen mortgage lender within 45 days of the contract date; or (ii) if the purchaser elects to obtain financing from a different lender.

The Mortgage Rider additionally contained a hand-written provision, crafted by the sales agent but initialed by Penny’s, which states:

Seller financing in the amount of $191,900 for a term of 30 years fixed' at a rate of 6% with 1% discount pt. no .prepayment penalty. Total, monthly payment will include principal [sic], interest and escrow payments. '.

Nothing in that provision indicates that such financing will be considered “all cash” In September 2011 counsel for Appellees wrote to Penny’s and stated that Appellees were required to wait for commencement of construction to apply for a loan commitment and that as a result of delays by Penny’s', Appellees were unable to obtain a loan commitment. Counsel álso demanded return of the deposits. In response, on September 21, 2011 counsel for Penny’s advised that pursuant to the above-quoted printed provisions of the Agreement, Ap-pellees were obligated to apply for financing within five days of the Agreement and/or to notify Penny’s within 46 days if they had not qualified for financing. Counsel further stated: “At this point, your client’s Sales Agreement is an ‘all cash transaction.’”.

Inconsistently and confusingly counsel then quoted the hand-written provision for Seller financing and stated: “Your clients have financing available to close the purchase transaction of the Property,” This paragraph was Penny’s sole reference to an agreement to provide financing in its dealings with Appellee.

Appellees’ counsel responded to that letter by requesting a complete copy of all documents signed by Appellees on five occasions between September and November 2011. Neither Penny’s nor its' counsel responded to those requests. On November 29; 2011 Appellees filed suit demanding return of their deposits. lh the Complaint Appellees again alleged that they did not have copies of the documents. Simultaneously, Appellees filed a Request for Production asking for copies of all documents. According to the record, Penny’s was served with the Complaint in December 2011, but failed to file an Answer. The record reflects that a default was entered against Penny’s.

Despite the pendency of the action, and despite Appellees’ counsel’s repeated requests for copies of the documents, on February 21, 2012 Penny’s counsel sent a letter to Appellees’ counsel reiterating the printed terms of the Mortgage Rider and again stating that “At this point, your client’s purchase of the Property under the Sales Agreement is an ‘all cash transaction.’ ” Notably, no mention was made of Seller financing, much less the means by which Appellees could avail themselves of such financing. The letter also advised that the Certificate of Occupancy for the Property had been obtained on February 17 and that Penny’s expected to close the sales transaction on February 27, 2012. Appellees did not attend a closing on the home on February 27, 2012 and did not otherwise respond to the letter.

As a result of Appellees’ failure to appear at the closing, on February 28 Penny’s counsel sent .another letter to Appel-lees’ counsel again quoting the printed Mortgage Rider provisions, again making no mention of Seller financing and again stating that the purchase was an “all cash transaction” at that point. The letter declared Appellees in default for failing to appear at the February 27, 2012 closing, but also provided Appellees with the opportunity to close on the home on Febru-. ary 29, 2012. The letter warned that if Appellees failed to appear Penny’s would terminate the Agreement. Appellees again did not appear for a closing on the home or otherwise respond to the letter. On March 1, 2012. Penny’s counsel terminated the Agreement in writing.

Subsequently, Penny’s filed an Answer in the pending litigation in which it alleged only that Appellees failed to timely notify it of their inability to obtain a Mortgage Commitment and that Penny’s performance under the Agreement was therefore excused] The Answer made no mention of Seller financing. In October 2012 Penny’s amended its Answer to include a Counterclaim, but again failed to make any mention of Seller Financing or Appellees’ entitlement thereto. Additionally, in March 2013 Penny’s moved for sanctions against Gasamanes claiming that he was not entitled to return of any deposits because Prieto had actually written the deposit checks. Again Penny’s made ño mention of any Seller financing.

In December 2013 Appellees filed a Second Amended Complaint in which they alleged for the first time that Penny’s- had breached the Agreement by Tailing to provide the Seller financing evidenced by the hand-written provision of the Mortgage Rider. This appears to be the first pleading or other document in this litigation in which either party made mention of the existence of the agreement to provide Seller financing. Nevertheless, in October 2014 Penny’s moved for summary judgment and again failed to argue or otherwise make mention of the agreement for it to provide financing. Instead Penny’s relied solely on Appellees’ alleged failure to timely advise it that they had failed to obtain a Mortgage Commitment.

In opposition to that motion Appellees argued that Penny’s had breached the Agreement by failing to provide the Seller financing as agreed in the hand-written provision of the Mortgage Rider. Appellees filed their own Motion for Summary Judgment on that same basis in December 2014. Neither motion for summary judgment was granted and the matter proceeded to a bench trial.

Penny’s Memorandum of Law filed prior to the non-jury trial in this matter is the first mention it made in any pleading regarding the agreement for Seller financing. In that Memorandum Penny’s argued that the filing of the initial Complaint constituted a repudiation of the Agreement citing Mori v. Matsushita Electric Corp. of America, 380 So.2d 461 (Fla. 3d DCA 1980). However, Penny’s also acknowledged that it disregarded any such alleged repudiation by proceeding with construction of the home and demanding closing. Acosta v. Dist. Bd. of Trustees of Miami-Dade Cmty. Coll., 905 So.2d 226, 229 (Fla. 3d DCA 2005) (“Where a party fails to declare a breach of contract, and continues to perform under the contract.after learning of the breach, it may be deemed to have acquiesced in an alteration of the terms of the contract, thereby barring its enforcement.”).

After a non-jury trial the trial court entered Final Judgment in favor of Appel-lees and ordered that they be refunded the $38,990.00 paid, plus interest. The trial court found that Penny’s was obligated to provide financing to Appellees and that demanding an “all cash transaction” was contrary to the terms of the Agreement— in essence finding that Penny’s had breached the Agreement by demanding such a closing in its February 2012 correspondence. The trial court further found that the Agreement had no provision requiring payment of the $15,000 additional deposit which Penny’s characterized as being for a premium lot. Penny’s has appealed that ruling.

Initially we note that it appears that this litigation could have been avoided had the parties engaged in both more and better communication. For example, when responding to Appellees’ first demand for refund Penny’s confusingly demanded an “all cash” closing and stated that it would provide financing. Penny’s made no effort to explain how or when or through what mechanism such financing could be secured. In addition, Penny’s failed to respond to five requests for copies of the Agreement made by counsel over the course of three months. Under those circumstances Appellees cannot be faulted for concluding that Penny’s would not fulfill its commitment to provide financing.

However, even if they did not have a complete copy of the Agreement, Appel-lees are equally at fault for failing to follow up on the portion of Penny’s counsel’s September 21, 2011 letter which stated that owner financing would be provided. It appears that much confusion and litigation could have been forestalled if either party had initiated discussions regarding the promised Seller financing and how it could be implemented.

On the merits, it is clear from the record that Penny’s waived any breach which might be said to have occurred by Appellees’ failure to advise it that they had obtained financing from another lender and/or any breach which could be said to have occurred by Appellees’ failure to provide the additional 10% deposit called for in the Mortgage Rider if financing is obtained other than through Penny’s preferred financing company. It is also clear that Penny’s waived any potential initial breach by Appellees in filing the underlying action. We therefore affirm the trial court’s conclusion that Penny’s breached the Agreement by demanding an “all cash” closing (as that term is used in the Mortgage Rider). In its own Memorandum of Law Penny’s acknowledged its disregard of the potential initial breach by Appellees and binding case law supports that having waived that breach, Penny’s may not now rely upon it as a reason for reversal of the trial court’s ruling. Thus, the trial court correctly ruled that Appellees were not liable for any initial breach of the contract. Acosta, 905 So.2d at 229 (Fla. 3d DCA 2005).

In addition, the trial court resolved any question of fact as to the reasons for the additional $15,000 deposit in favor of Ap-pellees. Where Penny’s did not provide any written evidence to support its claim that it was a “premium” for an upgraded lot and where Appellees denied any knowledge of any such premium cost, the trial court acted properly in resolving the factual dispute.

Affirmed.

      . In their Answer Brief Appellees argued that they were not provided a full copy of the Agreement at the time of execution. Appellees’ trial testimony on this issue is unclear but can be read as admitting that, in fact, they did have a complete copy of the Agreement. However, that reading of the testimony is undermined by the fact that Appellees’ counsel made repeated requests for a complete copy of the Agreement in September and November 2011 and neither Penny’s nor its counsel responded to those requests. The question of whether Appellees had a full copy of the Agreement appears to be an issue of fact which the trial court implicitly resolved in favor of Appellees in the Final Judgment. It is not the function of this Court to make its own factual findings and we therefore review this appeal presuming that Appellees did not have a full copy of the Agreement prior to its production by Penny’s in this litigation. Underwater Eng'g Servs., Inc. v. Util. Bd. of City of Key W., 194 So.3d 437, 444 (Fla. 3d DCA 2016), reh’g denied (July 6, 2016) ("In reviewing a judgment rendered after a bench trial, ‘the trial court’s findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous.’ ” (quoting Emaminejad v. Ocwen Loan Servicing, LLC, 156 So.3d 534, 535 (Fla. 3d DCA 2015))); Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006) ("A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.”).

      . At some points Penny’s has also argued that the $15,000.00 was simply an additional deposit amount. That argument is inconsistent with the Agreement’s requirement that Appel-lees pay 20% of the purchase price and obtain financing for the remaining 80% and is also inconsistent with the merger clause in the Agreement. We therefore reject that claim.

      . The record is unclear as to setting aside of the prior default, but we presume that such was properly done.

      . In response Appellees argued that Penny’s failure to provide them copies of the Agreement prior to filing suit constituted a breach of the implied duty to cooperate. PL Lake Worth Corp. v. 99Cent Stuff-Palm Springs, LLC, 949 So.2d 1199 (Fla. 4th DCA 2007). Appellees argued that in the absence of a complete copy of the Agreement they had no option but to file suit and that under the circumstances that filing could not be considered a repudiation.

      . Penny’s has argued that the “all cash” term used in its letters did not mean what it said and instead referred to a term of art in which a purchaser appears at a closing with sufficient commitment to pay the seller, regardless of the source of that commitment—i.e. actual cash or promissory note from a different lender or something else. Because the term "all cash” is used in a specific way in the Mortgage Rider, we do not apply the "term of art” as described by Penny’s under these circumstances.


author: Conner, J.

text:
    Claire Rice KUCHERA, Appellant, v. Jay KUCHERA, Appellee.
    No. 4D16-1375
    District Court of Appeal of Florida, Fourth District.
    September 27, 2017

      Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for appellant.
    Deanna V. Shuler of Deanna V. Shuler, P.A., Palm Beach Gardens, and .Kathryn M. Beamer of Kathryn M. Beamer, P.A., North Palm Beach, for appellee.
   Conner, J.

This is the third time the parties appear before us on appeal. The former wife appeals the final order entered after an evi-dentiary hearing on her motion for contempt. In the motion, the former. wife sought an adjudication of contempt against the former husband and a determination of the lump sum alimony arrearage which accrued for four -years.' The former wife argues the trial court erred by: (1) concluding there yvas a lack of jurisdiction to determine the arrearage for the years 2008 and 2009, (2) allowing the former husband to pay the arrearages owed for 2010 and 2011 at the rate of $3,000 monthly, and (3) failing to award prejudgment interest on the. arrearages. We affirm the trial court’s decision regarding the amount of the monthly payment on the arrearages without further-comment. We also affirm the trial court’s decision to -deny a determination of the arrearages owed for 2008 and 2009 and explain the reasons. However, we reverse the denial of prejudgment interest, and remand for further - proceedings to award prejudgment interest..

Background

During the marriage, the parties had periodic marital difficulties resulting in a post-conciliation marital settlement agreement (“MSA”) in 1992. The MSA was intended to resolve their differences in the future event that the parties separated and divorced. The MSA stipulated, among other things not pertinent to this appeal, that the husband would pay the former wife lump sum alimony by transferring certain accounts to her and paying one-half of his salary for ten years beginning on the date the marriage was dissolved.

The former wife filed to dissolve the marriage in 2003, wherein she sought to enforce the MSA. However, a pretrial order determined the MSA to be invalid. The 2006 final judgment dissolving the marriage determined that the former wife was entitled to $15,000.00 monthly as permanent periodic alimony.

. An appeal ensued, resulting in the case being remanded to the circuit court for another trial, after we determined the MSA was not invalid. During the January 2010 retrial, the forensic accountants of each, party testified as to the alimony amount that would have accrued as one-half of the former husband’s income for 2006 through 2009. Calculations of those figures were also presented by each party. At a post-trial hearing prior to the entry of the third amended final judgment, the former wife’s counsel stated:

MR. CHOPIN: [opposing counsel] and. I agree that there needs to be a final' number figured out in terms of the difference between alimony that was paid from May ’06 forward to alimony that should have been paid from May ’06 forward, but I think we can probably figure that out and submit that to the Court.

In the third amended final judgment entered on remand after retrial, the trial court determined that the parties’ MSA provides for the former wife to receive lump sum alimony with two components: (1) the value of certain accounts, including a profit-sharing account, and (2) one-half of the former husband’s salary for a period of ten years beginning on the date of the dissolution (as opposed tp the $16,000.00 monthly ordered after the first trial). Additionally, the court determined, that the amount to be included, as his salary inducted all amounts earned by the former husband, except distributions of his owner’s share of his former business interest, and excluding his’ child support obligation. However, for reasons unclear from the record, the third amended final judgment failed to determine what specific amounts were due to the former wife as the component of lump sum alimony representing one-half of the former husband’s income from 2006 forward. The trial court reserved jurisdiction to modify or enforce the judgment as circumstances demanded and the law permitted.

The former husband appealed the third amended final judgment and the former wife cross-appealed. However, significant to this appeal, neither .party raised the issue of the omission of a determination of the accrued arrearage of alimony representing one-half of the former husband’s salary.’

While the second appeal was pending, the former wife sought to enforce the lump sum alimony provisions of the third amended final judgment representing one-half of the former husband’s income by a motion for contempt, Specifically, the former wife alleged the former husband failed to pay the correct amount of alimony for the years 2008 through 2011. In response, the former husband filed a memorandum of law raising arguments of res judicata and lack of jurisdiction for the arrearages which accrued during 2008 and 2009, as well as arguments of waiver and laches for the arrearages which accrued during all four years.

After an evidentiary hearing, the trial court found the alleged alimony arrearages for 2008 and 2009 were fully litigated in the two-day trial conducted in January 2010, which resulted in the third amended final judgment. After observing that the third amended final judgment failed to determine the amount of those arrearages, the trial court stated:

When the Third Amended Final Judgment did not mention a number for the 2008 and 2009 arrears, the Former Wife was required to raise the omission issue in a timely motion for rehearing, but failed to do so. The Former Wife also had the right to appeal the omission, but chose not to do so, while appealing a number of other issues. Accordingly, the Former Wife’s Motion as to 2008 and 2009 arrears is DENIED for lack of jurisdiction.

The trial court also denied the motion for contempt as to the payments which accrued for 2010 and 2011 because the former husband paid what was owed according to the third amended final judgment. However, the trial court determined that the finding of no contempt did not resolve the issue of the correct amount of alimony that should have been paid for those two years. After considering the evidence, the trial court determined that the total alimony arrearage for 2010 and 2011 was $202,177.50. It further determined that an “equitable,” “just,” and “reasonable” repayment schedule would be $3,000 monthly. In exercising “sound discretion,” the trial court denied the former wife’s claim for prejudgment interest on the alimony arrearage. As justification for the denial of prejudgment interest, the trial court discussed the “scorched-earth mentality” of the former wife in prosecuting her entitlement to alimony, the finding by a previous judge that the MSA was unconscionable, the fact that in the previous four years the former husband received little to no net income from his sizable salary and had to use his inheritance and savings to meet his obligations under the MSA, including paying the former wife almost three million dollars for entitlements from 2010 forward.

The former wife gave notice of appeal of the final order on the motion for contempt.

Appellate Analysis

Failure to Determine Arrearages for 2008 and 2009

We review a trial court’s ruling on support arrearages for an abuse of discretion. See Galstyan v. Galstyan, 85 So.3d 561, 565 (Fla. 4th DCA 2012); Thompson v. Thompson, 989 So.2d 1237, 1239 (Fla. 4th DCA 2008) (“On its face, the order [for the monthly amount to be paid on rehabilitative alimony arrearage] is an abuse of discretion.”). However, we have also said that “[wjhere a trial judge fails to apply the correct legal rule ... the action is erroneous as a matter of law.” Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003) (alterations in original) (quoting Kennedy v. Kennedy, 622 So.2d 1033, 1034 (Fla. 5th DCA 1993)).

The former wife asserts the trial court erred in determining it did not have jurisdiction to determine the amount of alimony arrearage which accrued for 2008 and 2009. The former wife argues that the trial court premised its finding of lack of jurisdiction on a theory of res judicata, as argued by the former husband in his memorandum of law opposing the motion for contempt. As the former husband points out, the trial court did not explicitly refer to res judicata as the legal principle for determining that it did not have jurisdiction to determine the alimony arrearages for 2008 and 2009. However, we agree with two of the former husband’s arguments and conclude the trial court properly denied the request to determine alimony ar-rearages for 2008 and 2009.

First, we agree with the former husband’s argument that the former wife had an obligation to bring to the trial court’s attention when the third amended final judgement was entered that a determination of the arrearages for 2008 and 2009 had not been made. As the trial court found, the arrearage matter had been fully litigated, and prior to the entry of the third amended final judgment, former wife’s counsel acknowledged “there needs to be a final number figured out in terms of the difference between alimony that was paid from May ’06 forward to alimony that should have been paid from May ’06 forward.” As we said in Farghali v. Farghali, 187 So.3d 338 (Fla. 4th DCA 2016), “a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing.” Id. at 339 (quoting Simmons v. Simmons, 979 So.2d 1063, 1064 (Fla. 1st DCA 2008)).

Next, we agree with the former husband’s argument that the former wife waived the right to an arrearage determination or 2008 and 2009 by failing to pursue the matter on rehearing and by failing to raise the matter in the second appeal. As pointed out by the First District in Campbell v. State, 9 So.3d 59 (Fla. 1st DCA 2009), our supreme court has explained (quoting Fla. Dep’t of Trans. v. Juliano, 801 So.2d 101 (Fla. 2001)), that “a party’s failure ‘to raise an issue on appeal that was the subject of the trial court’s ruling’ precludes reconsideration of the issue, not because the trial court’s ruling has become the law of the case, but because the failure to raise that issue on appeal has effectuated a waiver of future arguments regarding that issue." Id. at 61 (emphasis added).

We note, however, that the trial court was not correct in stating there was a “lack of jurisdiction” to consider the matter of the arrearages for 2008 and 2009. The circuit court had both subject matter and case jurisdiction to consider the matter. We also note that the trial court’s statement in the final order that former husband did not meet his burden in raising the affirmative defense of waiver does not control, because the theory of waiver asserted in the former husband’s memorandum of law pertained to the former wife’s alleged acquiescence in accepting lower alimony payments and lulling- the former husband into thinking she was satisfied with the amounts he paid. The theory of waiver found by the trial court pertained to failure preserve issues for appeal and seeking appellate review. Thus, to the extent the trial court’s decision was correct, but perhaps for the wrong reason, we affirm. Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla. 1999).

Failure to Award Prejudgment Interest

“A trial court’s decision on whether or not to award prejudgment interest is reviewed under the de novo standard.” Conway v. Conway, 111 So.3d 925, 928 (Fla. 1st DCA 2013) (citing Wood v. Unknown Pers. Representative of Estate of Burnette, 56 So.3d 74, 76 (Fla. 2d DCA 2011)).

The former wife asserts that the court erred in declining to award prejudgment interest. The former wife argues that interest is due as a matter of law and the trial court did not have “discretion” to deny pre-judgment interest on the sums due. She relies on Conway, which held that trial court orders that fail to award prejudgment-interest on support arrearages warrant reversal, citing Miller v. Miller, 679 So.2d 868 (Fla. 1st DCA 1996); Nelson-Higdon v. Higdon, 680 So.2d 524 (Fla. 1st DCA 1996); Thurman v. Thurman, 637 So.2d 64, 65 (Fla. 1st DCA 1994). Conway, 111 So.3d at 928. Additionally, the former wife argues that it would be inequitable to not require the former husband to pay interest because he failed to provide his financial information for years and. he knowingly underpaid the alimony., Therefore, she contends that denying the interest forgives, years of unexcused, tardiness in payment.

The former husband argues. that the trial court did not abuse its discretion in refusing to award any interest, because there was no arrearage, judgment. However, the argument and cases relied upon are inapposite to a situation in which the parties had a contractual agreement as to lump sum alimony payable to the former wife. The argument and cases the former husband cites are applicable where, there was, no contractual agreement between the parties.

The former husband further relies on the trial court’s comment's as to the 'financial ' status of the parties, and that the former wife prosecuted her entitlements under the MSA with a scorched-earth mentality. However, our research reveals no- case law in Florida which denies entitlement to prejudgment interest in a contract case on the basis of. equitable considerations. .

While the former husband is correct that the third amended final judgment did not specifically state. the court was entering a judgment . for the specific amount of any arrearages,- it is clear that the trial court did conclude that the former husband was in arrears for 2010 and 2011, As such, we hold that interest should have been awarded for those two years. Interest is provided, as a matter of law once a debt has ensued. Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla. 1985). The order on the motion for contempt rightfully found the former husband to be in arrears by a specific amount. Thus, the trial court erred in failing to award prejudgment interest on the arrear-ages. We reverse and remand for the trial court to award prejudgment interest on the arrearage.

Affirmed in part, reversed in part, and remanded.

Taylor and May, JJ., concur.


text:
    Anthony R. BAKER Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0604
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017
    Rehearing Denied November 28, 2017
    Anthony R. Baker Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

: .Upon consideration of appellant’s response to the Court’s order of June 9, 2017, the Court has determined that the Order Denying Defendant’s Motion to Dismiss for Fruad [sic] -Upon the Court is not an appealable order. Fla. R. App. P. 9.140(b). Therefore, the Court lacks appellate jurisdiction. Furthermore, the Court declines appellant’s request to review the order by petition for writ of certiorari because appellant has failed to demonstrate that the ruling results in harm that cannot be remedied on appeal from a final judgment. See Eutsay v. State, 103 So.3d 181 (Fla. 1st DCA 2012). Accordingly, the appeal is dismissed.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.