author: SCALES, J.

text:
    Michael Fernando Sierra MIRANDA, Appellant, v. PACHECO ENTERTAINMENT PRODUCTION ENTERPRISES, INC., etc., Appellee.
    No. 3D16-1951
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017
    Rehearing Denied June 16, 2017

      The Hachar Law Firm, P.A., and Cody Pellicer and Pierre Hachar, Jr.; Acosta & Diaz, LLC, and Madeline M. Acosta and Christina K. Diaz, for appellant.
    Richard J. Diaz, P.A., and Richard J. Diaz, for appellee.
    Before LOGUE, SCALES and LUCK, JJ.
   SCALES, J.

The defendant below, Michael Fernando Sierra Miranda, appeals the trial court’s post-judgment order denying Miranda’s motion to dissolve a permanent injunction. We affirm because, under the unique procedural facts of this case, the trial court did not abuse its discretion by refusing to dissolve the injunction.

Facts

The facts are not in dispute. In October 2011, Miranda, a Cuban national performing artist, entered into an agreement with appellee, plaintiff below, Pacheco Entertainment Production Enterprises, Inc. (“Pacheco”). Pursuant to the agreement, Miranda agreed to engage in no “performance activity” without the prior written consent of Pacheco. In return, Pacheco was obligated to pay Miranda for Miranda’s “performance activity,” to arrange his “performance activity” and to distribute Miranda’s recordings. The agreement defined “performance activity” as follows:

For purposes of this Agreement, the phrase “Performance Activity” shall include, without limitation, any use of Artist’s talents and activities throughout the entertainment industry, including but not limited to live performance(s), the production of phonograph records, performances contained on phonograph records and mechanical or electrical transcriptions, record sales, musical composition and publishing, television, motion pictures, internet, radio, stage, concerts, tours, nightclubs, hotels and personal appearances of all kinds, merchandising and commercial endorsements, product tie-ins of all types, and from the sale, lease, license or other disposition of visual, literary, audio-visual, dramatic and/or musical material or productions for use in any medium of communication or entertainment, whether now known or hereafter invented, and from any and all allied, kindred or other fields of entertainment or endeav- or (including, but not limited to, cable television, pay-per-view television, internet, downloads, audio-visual devices, etc.) in which Artist may be or become professionally engaged.

In early December 2011, Pacheco learned that Miranda was going to be performing live at a Miami club at a Christmas Eve event not coordinated by Pacheco. Unable to resolve the matter with Miranda’s representative, Pacheco filed a verified complaint against Miranda in the Miami-Dade circuit court seeking both temporary and permanent injunctive relief (in Count I) and damages for breach of contract (in Count II). Pacheco also filed an emergency motion to enjoin Miranda from performing at the local club.

At a December 19th hearing, the trial court entered a temporary injunction against Miranda. The trial court’s injunction enjoined Miranda from performing at any entertainment, event — including the Christmas Eve event — without either the express written consent of Pacheco or further order of the court. Miranda did not seek rehearing or appeal the trial court’s December 19th temporary injunction order.

In January 2012, Miranda filed a motion seeking to dismiss Pacheco’s verified complaint. Miranda’s dismissal motion asserted that the action should be dismissed for lack of personal jurisdiction; the motion also argued that Pacheco had failed to join an indispensable party. The trial court denied the motion.

Very little took place in the case until almost three years later when, in March 2015, Pacheco filed a motion in the trial court seeking to compel Miranda to answer its complaint. The trial court entered an order in April 2015, directing Miranda to answer the complaint within twenty days. The trial court’s order warned that if Miranda failed to timely answer the complaint Pacheco would be entitled to an automatic default final judgment without the need of further court hearing.

Miranda did not file an answer, and, in May 2015, the trial court entered an order which it characterized as a default final judgment as to Pacheco’s injunction count (“May 2015 Injunction”). Specifically, the May 2015 Injunction enjoined Miranda from, among other things, “public appearances and performances of any type ... without [Pacheco’s] prior written consent, all of which is in accordance with the written contract....”,

Miranda did not seek rehearing or appeal the May 2015 Injunction. Rather, five months after its entry, Miranda filed a motion pursuant to Florida Rule of Civil Procedure 1.540, requesting the court to vacate the May 2015 Injunction. Miranda’s Rule 1,540 motion asserted that the May 2015 Injunction was void because: (i) it was entered without notice; and (ii) the parties’ underlying agreement purportedly violated federal law, which generally prohibits contracts with foreign nationals for the transfer of‘property. See 31 C.F.R. § 515.201(b).

The court denied Miranda’s Rule 1.540 motion. While Miranda appealed the trial court’s denial of his Rule 1.540 motion, he voluntarily dismissed that appeal within a week of filing the notice of appeal.

In March 2016, Pacheco filed a motion requesting the trial court to find Miranda in contempt of the May 2015 Injunction. Miranda filed a response in May 2016, and also moved to dissolve the May 2015 Injunction. In his May 2016 response, Miranda, for the first time, asserted that the May 2015 Injunction was unauthorized because it purported to enforce, via injunction, a personal services contract in contravention of Montaner v. Big Show Productions, S.A., 620 So.2d 246 (Fla. 3d DCA 1993).

In July 2016, the trial court held a hearing on the parties’ motions. Prior to the hearing, on June 6, 2016, Pacheco voluntarily dismissed its breach of contract claim (count II of its Verified Complaint) against Miranda, pursuant to Florida Rule of Civil Procedure 1.420(a)(1). In August 2016, the trial court entered an order granting Pacheco’s motion for contempt finding that Miranda had willfully violated the May 2015 Injunction, and that Miranda owed Pacheco damages in an amount equal to what Pacheco would have been paid had Miranda honored the terms of his written contract. At the July 2016 hearing, the trial court made no comments regarding whether the May 2015 Injunction violated the dictates of Montaner, and, via separate order, ■ the trial court summarily denied Miranda’s motion to dissolve the May 2015 Injunction. Miranda appeals only the trial court’s denial of his motion to dissolve the May 2015 Injunction.

Analysis

We review the trial court’s denial of Miranda’s motion to dissolve the May 2015 Injunction for abuse of discretion. See Simonik v. Patterson, 752 So.2d 692, 692-93 (Fla. 3d DCA 2000) (“The trial court has broad discretion in granting, denying, dissolving, or modifying injunctions, and, unless a dear abuse of discretion is demonstrated; appellate courts will not disturb the trial court’s decision.”). The unique issue before this Court is whether a trial court abuses its discretion in failing to dissolve a permanent injunction manifested in a final judgment upon a showing that the entry of the injunction was the result of clear legal error, notwithstanding that no change in circumstances occurred since the entry, of the permanent injunction.

We begin our analysis by noting that the trial court’s May 2015 Injunction-prohibiting Miranda from éngaging in any performance activities absent the prior written consent of Pacheco — may very well be the result of legal error; See Montaner, 620 So.2d at 248. The May 2015 Injunction specifically states that it is entered in accordance with the parties’ written personal services contract. Injunctive relief is not available to enjoin a breach of a personal services contract; a party aggrieved by a breach of such a contract is limited to recovery of damages. Id. Yet, Miranda did not raise this issue until a year after the May 2015 Injunction was entered.

In this case, we are not reviewing any legal error associated with the entry of the trial court’s May'2015 Injunction. Nor are we reviewing an interlocutory trial court order relating to a temporary injunction entered simply to maintain the status quo. Rather, we are reviewing the trial court’s consideration and denial of Miranda’s post-judgment motion seeking to dissolve a permanent injunction manifested in a final judgment. Thus, the unique procedural posture of this case requires us to- weigh two compelling, yet competing, judicial axioms: finality in litigation versus correction of legal error.

We are mindful that the Florida Supreme Court has recently made clear that, irrespective of changed circumstances, a trial court abuses its discretion by not dissolving a temporary injunction where a party can demonstrate that the temporary injunction was entered as a result of “clear legal error or misapprehension of fact's on the part of the trial court.” Planned Parenthood of Greater Orlando, Inc. v. MMB Props., 211 So.3d 918, 925-26 (Fla. 2017). Nothing in the MMB Properties opinion, however, can be read to extend its rationale to permanent injunctions, such as the instant one, manifested in a final judgment.

Similarly, while it is well settled that a trial court necessarily retains jurisdiction to modify a permanent injunction when changed circumstances make it equitable to do so, see Hale v. Miracle Enters., 517 So.2d 102, 103 (Fla 3d DCA 1987), it is equally well settled that the trial court exercises such jurisdiction only if the party seeking to dissolve the, injunction establishes a change in circumstances. Elias v. Steele, 940 So.2d 495, 497 (Fla. 3d DCA 2006) (“An individual seeking to modify or dissolve an injunction must establish that the circumstances justifying the injunction have changed so that the terms of the injunction are no longer equitable.”); see also Reyes v. Reyes, 104 So.3d 1206, 1207 (Fla. 5th DCA 2012) (holding that a party seeking to dissolve a domestic violence injunction must allege a change in circumstances, not merely challenge the original issuance of the injunction); Simonik, 752 So.2d at 693 (concluding the trial court did not abuse its discretion in refusing to vacate a permanent injunction absent a change in circumstances).

Miranda has provided us no authority for the proposition that a trial court continues to exercise jurisdiction to modify or vacate a permanent injunction, simply because of legal error, without any change in circumstances.

We note that Miranda could have challenged the merits of the December 2014 temporary injunction either by requesting a rehearing within fifteen days of its entry, or by appealing that temporary injunction as a non-final order within thirty days of its rendition. Similarly, Miranda could have challenged the May 2015 Injunction by seeking rehearing, by appealing it as a non-final order, or by appealing it within thirty day days of Pacheco’s voluntary dismissal of its breach of contract claim, i.e., when the May 2015 Injunction became a final judgment.

At the July 2016 hearing, the trial court lacked jurisdiction to entertain Miranda’s contention that the May 2015 Injunction is “simply wrong as a matter of law on the merits”; that challenge should have been raised under a timely Rule 1.530 motion or on plenary appeal. Balmoral Condo. Ass’n v. Grimaldi, 107 So. 3d 1149, 1152 (Fla. 3d DCA 2013); see also Curbelo v. Ullman, 571 So.2d 443, 444 (Fla. 1990).

The rules prescribing the procedural mechanisms for challenging judicial orders, judgments and decrees promote finality in litigation. See Balmoral, 107 So.3d at 1151 (“The importance of finality in any justice system ... cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end.” (quoting Witt v. State, 387 So.2d 922, 925 (Fla. 1980))). Notwithstanding the merits of Miranda’s most recent challenge to the May 2015 Injunction, we cannot cast aside Florida’s requirements of judicial finality, nor expand the limited nature of the trial court’s post-judgment jurisdiction. See Bank One, Nat’l Ass’n v. Batronie, 884 So.2d 346, 348 (Fla. 2d DCA 2004) (“After rendition of a final judgment, the trial court loses jurisdiction over the case except to enforce the judgment and except as provided by rule 1.540,”); Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1388-89 (Fla. 3d DCA 1986) (“The trial court’s authority to modify, amend, or vacate an order or final judgment after rendition of the final judgment is limited to the time and manner provided by rule or statute.”) (footnote omitted).

Conclusion

Therefore, under the unique facts of this case, we are compelled to affirm the trial court’s denial of Miranda’s motion seeking to dissolve the May 2015 Injunction.

Affirmed.

      . Pacheco’s verified complaint also contained a claim alleging that those hiring Miranda intentionally interfered with Pacheco's business relationship with Miranda, It appears that Pacheco never effected service of process on those defendants. In any event, those claims and those defendants are not involved in this appeal.

      . Paragraph 2 of the May 2015 Injunction reads, in its entirety, as follows:

        [P]ursuant to Count I of the complaint, the Defendant Michael Fernando Sierra [Miranda] is enjoined from public appearances and performances of any type, shall not appear on or in or participate in any way in connection with studio recordings, radio, internet or wireless services, website application or platform, print media, live performance or personal appearance, commercials or other endorsements, merchandising, or any other media platform or application or services now knowns [sic] or hereafter devised, or perform any performance activity without Plaintiffs prior written consent, all of which is in accordance with the written contract between Plaintiff and Defendant and which is attached as an Exhibit to the Verified Cómplaint.

      . Notwithstanding the trial court characterizing the May 2015 Injunction as a "default final judgment,” it is probably more accurately characterized as a partial final judgment because it reserved jurisdiction to adjudicate Pacheco's related breach of contract claim against Miranda.

      . Arguably, Pacheco’s June 2016 voluntary dismissal of its breach of contract claim — its only unadjudicated claim still pending against Miranda — -"converted” the trial court's May 2015 Injunction into a final judgment. Indeed, following Pacheco’s voluntary dismissal of the breach of contract claim, the trial court’s only remaining judicial labor in this case as to Miranda related solely to matters involving enforcement of the injunction. Thus, as discussed more fully below, Pacheco’s June 2016 voluntary dismissal probably provided' Miranda with yet another opportunity to appeal the May 2015 Injunction — this time as a final judgment.

      . At oral argument, Miranda’s counsel suggested that Miranda’s retaining a lawyer familiar with this Court’s Montaner opinion constituted a sufficient change in circumstances to warrant review of the trial court’s final injunction order. Without further elaboration, we disagree.

      . See Fla. R. Civ. P. 1.530(b)

      . See Fla. R. App. P. 9.130(a)(3)(B)

      . See Fla. R. App. P. 9.130(h) and footnote four, supra.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose DELGADO, Appellant, v. CITY CONCRETE SYSTEMS, INC. and FCCI Insurance Company, Appellees.
    CASE NO. 1D16-4759
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017
    Kevin R. Gallagher of Gallagher Law Group, P.A., Fort Lauderdale, for Appellant.
    Thomas G. Portuallo of Eraclides, Gel-man, Hall, Indek, Goodman, Waters & Traverso, Jacksonville, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying, in part, approval of a stipulation for a $20,000.00 attorney’s fee payable by the Employer/Carrier (E/C) for past benefits secured. In the order, the JCC found that he could not “in good conscience” approve the requested fee amount, which was based on the hours expended by Claimant’s attorney, and he reduced the fee to $4,293.80, representing a statutory guideline fee under section 440.34(1), Florida Statutes. He also ordered the E/C to pay Claimant the difference between the stipulated fee amount and the reduced fee. On appeal, Claimant raises several challenges, including a denial of due process-. Because, as we discuss below, the due process concerns here compel us to reverse the order and remand for a full evidentiary hearing, we find it unnecessary to address all the issues raised in this appeal.

Claimant, a construction worker, alleged a compensable workplace injury in April 2014 resulting in a loss of hearing. The E/C initially denied the claim, but eventually accepted -compensability and provided benefits. In July 2015, Claimant- requested approval of an attorney’s -fee he owed his attorney for obtaining a washout settlement of his workers’ compensation case under section 440.20(11)(c), Florida Statutes. The JCC entered an order approving the settlement fee in August 2015. But evidently the parties had also negotiated a separate E/C-owed attorney’s fee based on the past benefits secured and had agreed to delay the submission of this side stipulation for approval of that fee pending the Florida Supreme Court’s decision on the constitutionality of the guideline fee in Castellanos v. Next Door Co., 192 So.3d 431 (Fla. 2016) (holding statute mandating use of statutory guideline for attorney fee calculation is unconstitutional).

In May 2016, after the supreme court rendered its opinion in Castellanos, the attorneys for the parties submitted for the JCC’s approval the side stipulation for the $20,000.00 attorney’s fee payable by the E/C. The JCC subsequently held a telephonic hearing which he described at the hearing as being called at his own request for the purpose of considering the stipulated fee and going over “a couple of matters” with the attorneys. After a brief discussion, the JCC ordered Claimant’s attorney to -submit his time records. Claimant’s attorney subsequently submitted his time records and shortly thereafter the JCC entered the order which is the subject of this appeal.

Under Chapter 440, attorney’s fees “may not be paid for a claimant in connection with any proceedings arising under this chapter, unless approved by the [JCC] or court having jurisdiction over such proceedings.” § 440.34(1), Fla. Stat. Thus, the JCC here had both the authority and the obligation to review the attorney fee stipulation and to approve or disapprove the agreed-upon fee. See Luces v. Red Ventures, 140 So.3d 999, 999-1000 (Fla. 1st DCA 2014) (affirming JCC’s disapproval of stipulated attorney’s fee based on JCC’s finding that evidence did not support purported statutory basis for fee, but reversing JCC’s award of disapproved fee amount directly to claimant as improper reformation' of contract). Nevertheless, “[d]ue process concerns preclude a ruling on matters which have not been placed at issue, as the parties are entitled to notice so that they may fairly present their case.” Florida Power Corp. v. Hamilton, 617 So.2d 333, 334 (Fla. 1st DCA 1993). See also Isaac v. Green Iguana, Inc., 871 So.2d 1004 (Fla. 1st DCA 2004) (reversing, as offending procedural due process right of claimant, JCC’s ruling reached in absence of prior notice and opportunity to defend). This court has further held that, because parties are entitled to notice of the issues to be determined at a hearing, an order that is not in accord with the understanding with which -the workers’ compensation hearing was undertaken and participated in is a denial of due process and must be reversed. Moya-Perguero v. Trucks and Parts of Tampa, Inc., 77 So.3d 912 (Fla. 1st DCA 2012); see also School Dist. of Hillsborough Cnty. v. Dickson, 67 So.3d 1080 (Fla. 1st DCA 2011); Southeast Recycling v. Cottongim, 639 So.2d 155, 157 (Fla. 1st DCA 1994) (finding that award of chiropractic care must be reversed because due process concerns precluded expansion of scope of hearing to include chiropractic care where matter not placed at issue and no evidence of need for chiropractic care presented).

In the Luces case, the JCC disapproved the stipulated attorneys fee based on his finding that the evidence did not support a finding of a “medical only” claim — the alleged basis of the fee. 140 So.3d at 999-1000. But, before ruling, the JCC first “invited counsel for the parties to seek a telephonic hearing and provide additional evidence” in support of the allegation. Id. at 999. In contrast, the JCC here, following the very brief telephone hearing, disapproved of the stipulated fee in a seven-page order that assumed certain unestablished facts and strongly suggested that the attorneys engaged in collusion to commit fraud under section 440.105(4), Florida Statutes. Although the JCC’s order states that an evidentiary hearing was held, there is little support for this statement in the record. The hearing transcript — only ten pages long — does not in any way suggest an evidentiary hearing took place. The parties were not asked to submit evidence or present witnesses. During the hearing, the JCC questioned the attorneys ¿bout the basis for the fee, but did not indicate any issues of fraud or collusion.'Counsel for the parties filed motions for rehearing disputing the assumed facts and requesting the opportunity to provide further evidence. Nevertheless, the JCC denied these motions for rehearing on the ground that time for submitting additional evidence had “long passed.”

Given the JCC’s failure to provide the parties with proper notice and the opportunity to be heard on the issues that the JCC found determinative in his ruling, we find the JCC violated Claimant’s right of due process with entry of the final order here. We, therefore, REVERSE and REMAND for a properly noticed evidentiary hearing.

WOLF, RAY, and BILBREY, JJ., CONCUR. •

      . Our holding should not be construed as limiting the power of a JCC to approve or disapprove an attorney’s fee under section 440,34(1). See also § 440.33(1), Fla, Stat. (describing the powers of a JCC). Undoubtedly, a JCC has such power so long as the parties are afforded due process.


author: LUCK, J.

text:
    Miguel Antonio Alvarado CASTRO, Appellant, v. PULLMANTUR, S.A., Pullmantur Cruises, S.L., Pullmantur Cruises Sovereign, a foreign corporation, and Pullmantur Ship Management Ltd., Appellees.
    No. 3D16-556
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017

      Lipcon, Margulies, Alsina & Winkleman, P.A., and Michael A. Winkleman, for appellant.
    Horr, Novak & Skipp, P.A., David J. Horr, and Stephanie H. Wylie, for appel-lees.
    Before SUAREZ, C.J., and LAGOA and LUCK, JJ.
   LUCK, J.

This case is about where a cabin steward on a cruise ship, Miguel Antonio Alvarado Castro, gets to bring a personal injury lawsuit against his employer under the Jones Act. Castro filed his claims in the Miami-Dade County circuit court. The cruise ship company, Pullmantur, S.A., and its related entities moved to dismiss because of a forum selection clause in Castro’s employment contract that required him to bring the lawsuit in Malta. The trial court concluded that the forum selection clause was valid and enforceable, and dismissed the case against Pullmantur. We agree, and affirm.

Factual Background and Procedural History

Pullmantur is a cruise line based in Spain. In 2013, Castro was living in Honduras and applied to work on a Pullmantur cruise ship. Castro, in May of that year, signed an employment agreement with Pullmantur Ship Management Limited, a Bahamian company. The employment agreement provided that Castro would work as a cabin steward on Pullmantur’s Sovereign cruise ship from May to November, and would be paid $1,208 per month. Castro, the agreement said, would meet the Sovereign in Civitavecchia, Italy, and begin working on May 14. As part of the employment contract, Castro agreed that his “employment aboard the vessel shall be governed by the Laws of the vessel’s flag state ... and any disputes hereunder shall be adjudicated in that jurisdiction only.”

The Sovereign is owned by Pullmantur Cruises Sovereign, a Maltese corporation. The company’s base of operations is in Malta, and the Sovereign is flagged there. The Sovereign’s home port is Barcelona, Spain. In the warm weather months, the ship sailed in the Mediterranean Sea. In the cold weather months, it sailed in South America.

Castro alleged that on September 7, 2013, while he was working on the Sovereign, he was severely injured because of the constant heavy lifting, bending, twisting, and turning he had to do as a cabin steward. Castro claimed that his injuries were the result of the Pullmantur entities’ negligence, and filed a complaint in Miami-Dade County circuit court for: (1) Jones Act negligence; (2) unseaworthiness; (3) failing to provide maintenance and cure; and (4) failing to treat his injuries.

Pullmantur moved to dismiss Castro’s complaint based on the forum selection clause. Castro responded that the forum selection clause was unreasonable because Malta was too inconvenient and expensive for him to litigate this case such that he would be deprived of his day in court, and it was void under federal law. The trial court granted the motion to dismiss, concluding that “enforcement of the forum selection clause [was] reasonable under the circumstances because the subject vessel [was] flagged in Malta, the shipowner [was] incorporated in Malta, Malta has an interest in regulating its ships and shipowners and Malta has an established system recognizing and enforcing seaman’s rights.”

Analysis

Castro contends on appeal that the trial court erred in finding the forum selection clause in his contract valid and enforceable because: (1) the clause is unreasonable given how “gravely difficult and inconvenient” it would be for him to litigate the case in Malta; and (2) it is void after the 2008 amendments to the Jones Act. We review the trial court’s order, which dismissed the case based on the forum selection clause in the parties’ contract, de novo. Crastvell Trading Ltd. v. Marengere, 90 So.3d 349, 353 (Fla. 4th DCA 2012).

1. The forum selection clause is unreasonable. The traditional, eommon law view of “contractual provisions requiring that future disputes be resolved in specified foreign jurisdictions” was that they were “void as impermissible attempts to oust Florida of subject matter jurisdiction.” Manrique v. Fabbri, 493 So.2d 437, 438 (Fla. 1986) (citing Huntley v. Alejandre, 139 So.2d 911 (Fla. 3d DCA 1962)). This view was rejected by the United States Supreme Court in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). There, the. Court explained:

The argument that such clauses are improper because they tend to “oust” a court of jurisdiction is hardly more than a vestigial legal fiction. It appears to rest at core on historical judicial resistance to any attempt to reduce the power and business of a particular court and has little place in an era when all courts are overloaded and when businesses once essentially local now operate in world markets. It reflects something of a provincial attitude regarding the fairness of other tribunals. No one seriously contends in this case that the forum-selection clause “ousted” the District Court of jurisdiction over Zapata’s action. The threshold question is whether that court should have exercised its jurisdiction to do more than give effect to the 'legitimate expectations of the parties, manifested in their freely negotiated agreement, by specifically enforcing the forum clause.

Id. at 12, 92 S.Ct. 1907, quoted in Manrique, 493 So.2d at 439.

In Manrique, the Florida Supreme Court adopted the M/S Bremen approach, explaining that: “The correct approach would have been to enforce, the forum clause specifically unless [the party] could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Manrique, 493 So.2d at 439 (alteration in • original). The test for the unreasonableness or injustice of a forum selection clause, the Florida Supreme Court said, was not “mere inconvenience or additional expense.” Id. at 440 n.4. Rather, “[i]t ' should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Id. (quoting Bremen, 407 U.S. at 18, 92 S.Ct. 1907). Or, as we have said, “[t]he enforcement is unreasonable and unfair only when the designated forum amounts to ‘no forum at all.’ ” Am. Safety Gas. Ins. Co. v. Mijares Holding Co., LLC, 76 So.3d 1089, 1092 (Fla. 3d DCA 2011) (quoting Corsec, S.L. v. VMC Int’l Franchising, LLC, 909 So.2d 945, 947 (Fla. 3d DCA 2005)).

Castro argues that Malta is no forum at all for him because he lives in a poor, rural community in Honduras. He is unemployed, has no savings, and has barely enough money to support his family. Malta, Castro contends, is one thousand miles away from Honduras, and he does not have the money to hire an attorney, or to pay for airfare and hotel expenses to litigate his ease. Under these facts, Castro says, there are two federal cases that support his contention the forum selection clause is unreasonable: Murphy v. Schneider National, Inc., 362 F.3d 1133 (9th Cir. 2004); and Rozanska v. Princess Cruise Lines, Ltd., No. 07-23355-CIV, 2008 WL 8883868 (S.D. Fla. Aug. 5, 2008). While the forum selection clauses were held to be unreasonable in Murphy and Rozanska, a closer look at both cases shows that the facts here are far different.

In Murphy, the plaintiff was a long haul trucker for an air conditioning company. Murphy, 362 F.3d at 1136. The trucker was injured while he was picking up air conditioners in Kentucky. Id. Although he lived in Oregon, the trucker’s employment agreement had a forum selection clause that required all lawsuits to be brought in Wisconsin. Id. The injured trucker filed his lawsuit in Oregon, and in response to the motion to dismiss based on the forum selection clause, he swore that he had been unable to work since the injury; his truck had been repossessed; he had a limited income from disability payments; he had significant expenses; and therefore he couldn’t maintain his lawsuit if he had to file it in Wisconsin. Id. at 1136-37. The federal court of appeals, taking these allegations as true, concluded that “the combination of [the trucker’s]-alleged financial troubles and physical limitations would bar him from litigating his claim in Wisconsin.” Id. at 1143.

While the Murphy plaintiff was unable because of physical injury and financial hardship to bring his case outside his home forum, Castro has not made that showing. Honduras is Castro’s home forum. Castro, however, brought this case in Miami, Florida, which is 830 miles from Castro’s home, in a different country. The Murphy plaintiff, because of his injuries and income, was unable to leave Oregon to prosecute his case. Castro, by filing his lawsuit in Miami, has shown that he is financially and physically able to bring his case away from his home forum.

There is another key difference between the Murphy case and this one. Murphy involved an injury in the United States and a dispute over different forums within the United States (Oregon and Wisconsin), The Murphy case did not implicate foreign forum selection clauses and international labor and trade issues like this case does. The difference between domestic and foreign forum selections clauses is an important one. As the Florida Supreme Court explained in Manrique, international forum selection “clauses represent efforts to eliminate uncertainty as to the nature, location, and outlook of the forum in which parties of differing nationalities might find themselves.” Manrique, 493 So.2d at 439, They allow “freely contracting parties to conduct their interstate and international business affairs more; efficiently.” Id. Or, as Judge John. Minor Wisdom explained in a crewmember injury case like this one:

Forum selection clauses are important in international cases such as the instant case because there is much uncertainty regarding the resolution of disputes. Ocean-going vessels travel through many jurisdictions, and could become subject to the laws of a particular jurisdiction based solely upon the fortuitous event of an accident. “The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting.”

Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 220 (5th Cir. 1998) (footnote omitted). Castro, for example, is a Honduran national who signed a contract with a Bahamian company to work on a Maltese ship that sailed through the Mediterranean Sea, including Italy and Spain. The public and private interests in the enforcement of international forum selection clauses — efficiency and the elimination of uncertainty— are even greater than those for domestic forum selection clauses like the one in Murphy.

In the second case Castro relies on, Rozanska, a cruise ship waitress sued the cruise line under the Jones Act for failing to diagnose and treat her breast cancer. Rozanska, 2008 WL 8883868, at *1. Her employment agreement said that disputes would be heard in Bermuda or Poland. Id. The federal district court found that the forum selection clause was unreasonable because the cruise line’s headquarters and base of operation was in the United States, and its business was substantially in the country. Id. at *4. The cruise line, moreover, “selected Bermuda law to apply because there are no comparable causes of action in Bermuda which are similar to the Jones Act or United States admiralty law for maintenance and cure.” Id. at *5. “The purpose of the clause,” the court wrote, “was to deprive [the waitress] of her Jones Act and maintenance and cure causes of action.” Id.

The evidence here, unlike in Rozanska, is that the Pullmantur entities have no connection to the United States (other than that the parent company is Royal Caribbean). Pullmantur is headquartered in Spain; Pullmantur Cruises Sovereign is a Maltese company; and Pullmantur Ship Management is a Bahamian company. Since March 2009, the Sovereign hasn’t been in the United States. During the warm weather months, the ship is in the Mediterranean Sea. During the cold weather months, it is based in Brazil. The Pullmantur entities do not have an office or agent in the United States. Their officers are in Europe and Latin America, and they market mostly to Spanish-speaking passengers.

The evidence also shows that, unlike in Rozanska, Malta does not strip plaintiffs of their rights to assert Jones Act-like injury claims. Malta is a signatory to European Union conventions that assure fair treatment of workers on Malta-flagged ships. Malta has enacted local legislation to codify the European Union and United Nations conventions. And “Maltese law amply provides for situations where an employee suffers harm or personal injury in his or her place of work and there have been innumerable judgments in Malta where a Court condemned an employer to pay damages to his or her employee.” These damages include “the actual material damages suffered” and “loss of future profits,”

At bottom, the forum selection clause in this case is presumptively valid, and Castro bears a heavy burden to show that Malta is an unreasonable and unfair forum, that is, no forum at all. See Estate of Stern v. Oppenheimer Trust Co., 134 So.3d 566, 568 (Fla. 3d DCA 2014) (“A party seeking to avoid enforcement of a mandatory forum selection clause bears a heavy burden of establishing that the enforcement is unjust or unreasonable and must demonstrate that the contractually designated forum essentially amounts to ‘no forum at all,’ thereby depriving the party of its day in court.”); Burns v. Radisson Seven Seas Cruises, Inc., 867 So.2d 1191, 1192 (Fla. 4th DCA 2004) (“The United States Supreme Court has held that forum selection clauses are generally presumed valid, unless enforcement of the agreement would be unreasonable under the particular circumstances, so as to encourage international trade and foster international relationships. This presumption places a heavy burden on a plaintiff contesting a forum selection clause to present compelling evidence that the clause was based on fraud, undue influence, unequal bargaining power, overreaching, or fundamental unfairness.” (citations omitted)). Castro has not met that heavy burden.

Castro had significant contacts with the Mediterranean, and almost none in the United States. He applied to work on the Sovereign, a ship flagged in Malta and owned by a Maltese company, and for a cruise ship line that was based in Spain. Castro boarded the Sovereign in Italy. The Sovereign’s home port was Barcelona, Spain, and throughout the time Castro worked on the ship it traveled to various ports throughout the Mediterranean Sea. There are, on the other hand, no contacts with the United States. The Sovereign, while Castro was working on the ship, did not dock in any United States port. The Pullmantur entities have no offices or agents in the United States.

Castro, moreover, is already litigating his personal injury case away from his home forum, and in a foreign country. Castro lives in Honduras, as does his family. Castro, however, brought his Jones Act claims in the Miami-Dade County circuit court. Castro does not explain why, on the one hand, he is able to afford to bring this case in one foreign jurisdiction (Miami) and, on the other hand, he cannot afford to litigate the same claim in a different foreign jurisdiction (Malta). There is nothing in the record to suggest that Florida is any less expensive than Malta. If our state circuit court is not an unreasonable forum for a Honduran national, than neither is the Maltese courts. See Manrique, 493 So.2d at 440 n. 4 (“We emphasize that the test of unreasonableness is not mere inconvenience or additional expense.” (emphasis added)).

Malta, finally, allows for personal injury claims like the one Castro brought in Florida. The Maltese courts allow an employee to sue his or her employer for injuries caused on the job, and to collect damages. Malta, as a member of the European Union, has recognized minimum working conditions and salary for seaman sailing on Malta-flagged ships, and has enacted domestic legislation to enforce these minimum standards.

2. The forum selection clause is void. Castro also contends that the forum selection clause is void because Congress in 2008 amended the Jones Act to delete its venue provision, which provided that “[a]n action under this section shall be brought in the judicial district in which the employer resides or the employer’s principle office is located.” Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1286 (11th Cir. 2011) (quoting the Jones Act). Because the Jones Act references the federal railroad workers statute (the Federal Employer’s Liability Act, 45 U.S.C. §§ 55-56), and the Supreme Court has interpreted the railroad workers statute to prohibit forum selection clauses (Boyd v. Grand Truck W.R. Co., 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55 (1949)), Castro argues that the Jones Act now, too, prohibits forum selection clauses.

We have recently rejected this argument, See Durkovic v. Park W. Galleries, Inc., No. 3D16-765, 217 So.3d 159, 160, 2017 WL 1278048, at *1 (Fla. 3d DCA Apr. 5, 2017) (“We decline to adopt the Appellant’s position that the Jones'Act per se prohibits a seaman who is a foreign national residing outside the United States from being bound by a contract provision mandating a specific foreign forum for disputes under the contract.”); see also Nayak v. Star Clippers, Ltd. Corp., No. 12-23768-CIV, 2014 WL 1406438, at *3 (S.D. Fla. Mar. 11, 2014) (“I conclude that Plaintiffs assertion- that forum selection clauses are per se invalid in Jones Act cases is not supported by the law in this Circuit.”). And with good reason. The Jones Act amendments, first, were “not intended to make any substantive changes to the laws now codified .... [T]hese changes [were] intended to restate the law without substantive change ,...” Lindo, 652 F.3d at 1287 (quoting committee report). As the Eleventh Circuit Court of Appeals explained in Lindo, the “purpose of the 2008 Amendment .., was to clarify what had already been settled .... Congress made it clear that no substantive change was being effected by the 2008 Amendment ..,. ” Id. at 1286-87. Forum selection clauses in Jones Act cases have been enforceable for years,, see, e.g., Marinechance Shipping, Ltd., 143 F.3d at 217-18, 221, and Congress did nothing to change this in the 2008 amendments.

Second, the Jones Act does not incorporate the entire body of federal railway law. The reference in the Jones Act to the railway workers is limited to the rights and remedies available to seaman. Here is what the Jones Act says:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain a cause of action for damages at law, with the right to a trial by jury, and in such action all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees shall apply.

46 U.S.C. § 30104. The Jones Act says nothing about incorporating the procedural requirements of the federal railway workers statute, like venue and statute of limitation, into ship worker cases. The “right or remedy” language refers to causes of action that are available to seaman and railway workers; it does not refer to all the procedural and administrative rules applicable to railway workers.

Third, the language of the railway worker statute does not prohibit forum selection clauses. It instead provides that “an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.” 45 U.S.C. § 56. The prohibition on forum selection clauses was gloss that was added to the -railway worker statute by -the United States Supreme Court in Boyd: That Court has the right to say what federal law is, but we are not going to extend that gloss to a completely different statutory scheme, in a completely different industry, where forum selection clauses have been specifically authorized since M/S Bremen, without Congress or the Supreme Court telling us to do so.

Conclusion

For these reasons, after conducting a de novo review, we agree with the trial court that the forum selection clause Castro entered into as part of his employment contract with Pullmantur was valid and enforceable. We, therefore, affirm the trial court’s judgment dismissing this case.

Affirmed.

      . Castro also included claims against Royal Caribbean, Pullmantur’s parent corporation. In a separate order, the trial court granted Royal Caribbean’s motion to dismiss based on the forum selection clause, and although Pull-mantur initially appealed the judgment dismissing Royal Caribbean, that appeal was dismissed and is not at issue here.

      . The trial court also concluded, as an alternative ground to dismiss, that Castro was collaterally estopped from raising the invalidity of the forum selection clause because the trial court had already ruled on that issue regarding the Royal Caribbean defendants. Because we conclude, as the trial court did, that the forum selection clause is valid and enforceable, we do not have to decide the collateral estoppel issue.

      . “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void .... Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in .which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.” 45 U.S.C. §§ 55-56.

      . "We agree with those courts which have held that contracts limiting the choice of venue are void as conflicting with the Liability Act.” Boyd, 338 U.S. at 264-65, 70 S.Ct. 26.


text:
    Federico GOMEZ, Appellant, v. S & I PROPERTIES, LLC and Jenesco Partners, LLC, Appellees.
    No. 3D16-2582
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017.

      Law Offices of Gregory M. Ochalek PLLC and Gregory M. Ochalek, for appellant.
    Law Offices of Mendez & Mendez, P.A., Sergio L. Mendez, and Daniel J. Mendez, for appellees.
    Before ROTHENBERG, SALTER and LUCK, JJ.
   LUCK, J.

Federico Gomez appeals a nonfinal order denying his motion to dismiss S & I Properties, LLC and Jenesco Partners, LLC’s complaint based on an arbitration clause in the parties’ contract. We dismiss the appeal for lack of jurisdiction.

S & I Properties entered into a contract to sell commercial real estate (6113 Southwest 8th Street) to American Land for $4,725,000. Jenesco Partners, likewise, entered into a contract to sell commercial real estate (6200 Southwest 8th Street) to American Land for $3,685,000. The transactions were conditioned upon American Land successfully closing and conveying a separate piece of property (3905 Gem Twist Court) to a third party for $9,428,175. The purchase and sale agreements contemplated an exchange transaction in which American Land would sell the Gem Twist property and use the funds to purchase the Eighth Street properties. Both contracts contained broad arbitration clauses, stating that “[a]ny controversy or claim arising out of or relating to this contract shall be settled by neutral binding arbitration.” Gomez, who was the manager for American Land, signed on the company’s behalf.

American Land closed on the Gem Twist property on October 9, 2014 and closing for the Eighth Street properties was scheduled for October 20. Prior to the October 20 closing, however, S & I Properties and Jenesco became aware that American Land would not close on their properties and sent a demand letter to American Land. Ultimately, American Land failed to close on the Eighth Street properties even though it had the money from the sale of the Gem Twist property.

S & I Properties and Jenesco sued American Land for breach of contract (counts 1 and 2) and specific performance (count 3 and 4). As to both American Land and Gomez, the complaint alleged fraud (count 5), stating that Gomez “fraudulently diverted and transferred the exchange property funds [$9,428,175] for his own purposes and did not apply the funds to the purchase of the [Eighth Street] commercial properties.”

Gomez moved to dismiss the complaint because he was not served, he could not be sued in his individual capacity without allegations piercing the corporate veil, and the parties’ contract was governed by an arbitration clause. The trial court denied the motion. Gomez appeals the trial court’s nonfinal order denying his motion to dismiss.

Normally, “a defendant cannot appeal a nonfinal order which denies a motion to dismiss.” Haridopolos v. Citizens for Strong Sch., Inc., 81 So.3d 465, 468 (Fla. 1st DCA 2011) (en banc) (quotation omitted). The Florida Constitution, however, grants the district courts of appeal jurisdiction to “review” some “interlocutory orders,” but only to “the extent provided by rules adopted by the supreme court.” Fla. Const, art. V, § 4(b)(1). Florida Rule of Appellate Procedure 9.130 is the rule adopted by the Florida Supreme Court, and it lists the nonfinal orders that are appealable to the district courts.

Gomez contends that we have jurisdiction to review the trial court’s order denying his motion to dismiss because Rule 9.130(a)(3)(C)(iv) provides for “[ajppeals ... of non-final orders .., that ... determine ... the entitlement of a party to arbitration.” Fla. R. App. P. 9.130(a)(3)(C)(iv). By denying his motion to dismiss based on the arbitration clause in the real estate contracts, Gomez argues, the trial court necessarily determined that he was not entitled to arbitrate the fraud claim.

Three times, in Southeastern Title and Insurance Co. v. Curtis, 155 So.2d 855 (Fla. 3d DCA 1963), Weber v. Bonilla-Mathe, 807 So.2d 170 (Fla. 3d DCA 2002), and Hopewell, LLC v. Alarion Bank, 84 So.3d 1073 (Fla. 1st DCA 2012), this court and another district court have addressed this argument (an order denying a motion to dismiss based on an arbitration clause is the same for appellate jurisdiction purposes as an order determining entitlement to arbitration) and rejected it. We take this opportunity to do so again here.

In Curtis, for example, before Rule 9.130 was adopted, Florida law authorized an appeal from an order denying an application to compel arbitration. Curtis, 155 So.2d at 856 n.1. The plaintiff sued his insurance company under an uninsured motorist policy. Id. at 856. That part of the policy “contained a provision for arbitration.” Id. The insurance company moved to dismiss the complaint because the “contract attached to plaintiffs original complaint provide[d] that all claims brought for damages under [the uninsured motorist coverage] shall be settled by arbitration.” Id. (quoting from the motion to dismiss). The insurance company, as Gomez does here, “construed the order denying the motion to dismiss as an order denying án application to compel arbitration” and sought an interlocutory appeal. Id. The court explained that it lacked jurisdiction to consider the appeal because “[t]here [was] nothing in the record to indicate that the appellant-insurance company has made an application to the court for an order directing the parties to proceed with arbitration in accordance with the contract. If the [insurance company] wishe[d] to arbitrate, it should initiate action in this direction.” Id.

Forty years later, in Weber, the court addressed a case almost identical to this one. There, as here, the plaintiff sued for “breach of a real estate buy and sell agreement which contained an arbitration clause.” Weber, 807 So.2d at 170. The defendant appealed “from an order denying his motion to dismiss the complaint outright on the ground that the plaintiff had not invoked the arbitration clause.” Id. The court said “that no authority is or could be cited to support the alarming proposition that a party’s failure to invoke arbitration deprives her of the right even to maintain a common law action.” Id. The order denying the motion to dismiss, the court concluded, was “not one which determine[d] the entitlement to arbitration under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).” Id.

Most recently, in Hopewell, the appellants argued that an order denying their motion to dismiss was immediately appeal-able “because it necessarily determined their entitlement to arbitration.” Hopewell, 84 So.3d at 1073. The appellants, the first district said, “construe[d] the order on appeal as an order denying a motion to compel arbitration because the underlying motion to dismiss had asserted that the claims raised in the complaint [were] subject to arbitration.” Id. That was wrong, the court explained, because “even if the claims [were] subject to arbitration, dismissal of .the complaint [was] not required.” Id. Because the appellant had “not filed a motion in the trial court seeking to compel arbitration and the trial court did not construe the appellants’ motion to dismiss as such a motion,” the court lacked jurisdiction to review the order. Id. at 1074.

In sum, Gomez made two faulty assumptions about the trial court’s dismissal order. Gomez, first, assumed the arbitration clause was self-effectuating. It was not. As the Weber court explained, there is no authority for the proposition that the existence of the arbitration clause álone strips the plaintiff of its right to bring a common law cause of action. The arbitration clauses in these real estate coh-tracts 'have to be enforced by one of the parties. That cari be done through a motion to compel arbitration, or the trial court has discretion to construe the motion to dismiss based on the arbitration clause as a motion to compel. Neither happened in this case.

Gomez’s second assumption was that the trial court must dismiss the complaint where there was an enforceable arbitration clause. This, too, was incorrect. As the Hopewell court highlighted in its citation to the Florida arbitration code, even where “the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration.” § 682.03(7), Fla. Stat. (2016). Dismissal, in other words, is not- appropriate pre-arbitration, even when there’s an enforceable arbitration provision. The trial court must stay the case and retain jurisdiction, for example, to confirm and enforce the arbitration award -once one is handed down. See id. § 682,12 (“After a party to an arbitration proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order .... ”).

Here, all the trial court’s dismissal order determined was that dismissing the complaint was not appropriate at this point in the case based on the arbitration clauses. The order was consistent with the Florida arbitration code and our decisions in Curtis and Weber. The trial court’s dismissal order did not determine — because it was not asked to determine — Gomez’s entitlement to arbitrate the fraud claim. If Gomez wants that relief, he must file a motion to compel arbitration. See Curtis, 155 So.2d at 857 (“If the defendant wishes to arbitrate, it should initiate action in this direction.”).

Because he did not do so, his appeal of the trial'court’s order denying the motion to dismiss was not á determination of his entitlement to arbitration. We, therefore, lack jurisdiction to consider Gomez’s appeal of the dismissal order at this time.

Appeal dismissed.

      . The parties did not request oral argument.


author: LOGUE, J.

text:
    Olga KARAPETYAN and Vadim Karapetyan, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D16-2302
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017

      Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for appellants.
    Pearson Bitman LLP, and Allison Morat and Nicole D. McKee (Maitland), for ap-pellee.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   LOGUE, J.

This appeal arises from a residential foreclosure. The borrowers seek review of the trial court’s order denying their amended objection to the foreclosure sale.

The borrowers argue that the notice of the foreclosure sale did not comply with section 45.031(2), Florida Statutes (2015), which provides:

Notice of sale shall be published once a week for 2 consecutive weeks in a newspaper of general circulation, as defined in chapter 50, published in the county where the sale is to be held. The second publication shall be at least 5 days before the sale.

Here, there is no dispute that the notice of foreclosure sale was printed in the Daily Business Review on Friday, April 15,2016, and again on Friday, April 22, 2016. , The sale toQk place on May 4, 2016, more than the required five days after the April 22, 2016 date of the second publication.

Appellants suggest that because the first publication occurred on April 15, .2016, we must consider that to be the beginning of an initial one-week period ending on April 21, 2016. The appellants further contend that the statute requires a second one-week period which, in this case, is the period from April 22 through April 29, 2016. They argue that this interpretation requires that the second publication occur on April 29, 2016 because it is the final day of the second full week. Under that methodology, the May 4, 2016 sale date falls short of the five-day statutory requirement, once the intervening weekends are considered. We reject this interpretation of the statute. •

Publication occurred once during the week of April 15, 2016, and once again during the week of April 22, 2016, satisfying the “once a week for 2 consecutive weeks” requirement in the statute. Accordingly, we affirm the order on appeal.

Affirmed.


text:
    Iraelio Alcolea LEAL, Appellant, v. Orielyn Diaz RODRIGUEZ, Appellee.
    No. 3D16-1693
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017

      Cristobal D. Padrón & Assoc., P.A. and Cristobal D. Padrón, for appellant.
    Orielyn Diaz Rodriguez, in proper person.
    Before ROTHENBERG, LOGUE and LUCK, JJ.
   LUCK, J.

Husband Iraelio Alcolea Leal and wife Orielyn Diaz Rodriguez have been married for five years and have a child together, but by June 2016 the marriage had fallen apart. Diaz petitioned for a domestic violence injunction based on an incident on June 3. The trial court, after an evidentia-ry hearing, granted the petition and entered the “final judgment of injunction for protection against domestic violence with minor child(ren).” Leal appeals the final injunction because, he contends, it was not supported by competent substantial evidence. We disagree, and affirm.

The trial court may grant an injunction where “the petitioner is either the victim of domestic violence ... or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.” § 741.30(6)(a), Fla, Stat. (2016). “Domestic violence” is “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” Id. § 741.28(2). Domestic violence, in sum, “requires some showing of violence or a threat of violence.” Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005). General harassment, general relationship problems, and uncivil behavior are not enough. Id.; Randolph v. Rich, 58 So.3d 290, 292 (Fla. 1st DCA 2011).

“In determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court shall consider and evaluate,” among other factors, “[t]he history between the petitioner and the respondent, including threats, harassment, stalking, physical abuse”; “[w]hether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner”; “whether the respondent has physically restrained the petitioner from leaving the home”; and “whether the respondent has destroyed personal property” belonging to the petitioner. Id. § 741.30(6)(b)(1)-(10). That is, the trial court must consider “the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010).

Here, Diaz (the wife) and Leal (the husband) had been having problems for the last two years. When they were still living together, Leal would not let Diaz work, have friends, or have a relationship with her family. Leal would control Diaz’s time and money. When Leal finally let Diaz work, he would accuse her of being somewhere else if she were five minutes late. When Leal would get upset with Diaz, he would “turn violent” and try to take her immigration paperwork. Diaz testified that the last time Leal hit her was in 2015. When Diaz finally ended the relationship for good in August 2015, Leal threatened to leave her without her ear, license plate, and money.

After the separation, Diaz and Leal would speak by telephone about their son but Leal would make offensive comments. Diaz then stopped talking to Leal by telephone and would only communicate via text message but Leal still would make the same comments.

The relationship came to a boil on June 3, 2016. On that day, Diaz met Leal in the parking lot of her apartment building to exchange their son. She held a backpack with their son’s aerosol machine. Leal came toward her using offensive expressions and ordering their son to take the backpack. Diaz asked Leal to take the backpack instead as it was very heavy. Leal continued to use offensive language so Diaz put the bag down and turned to leave. Leal ran up to Diaz and said “f**kin’A, I’m going to destroy your life, you don’t know who I am, my name is Iraelio Alcolea Leal with a capital I. Your mother and your father are going to cry. And you are safe because you are the mother of my son, if not I will destroy your life.”

From this evidence, we conclude, as the trial court did, that Diaz established reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. Leal angrily came at Diaz on June 3, 2016, used profanity, asked her if she knew who he was, and told her that he would destroy her life and make her parents cry. The fact that Leal would make Diaz’s parents cry indicated that this was more than an uncivil fight or relationship squabble about the separation or child-sharing arrangement. Rather, Leal’s make-your-parents-cry statement was a threat that what he would do to destroy Diaz would be so bad as to make her parents upset to the point of tears. Together, the physical act of approaching Diaz from his car, cursing at her, telling her he was going to “destroy” her life and make her parents cry, demonstrate a threat by Leal to be violent towards Diaz.

Diaz’s belief, moreover, that Leal threatened her with violence was objectively reasonable. See Randolph, 58 So.3d at 292 (“[T]he law requires that the party seeking the injunction must present sufficient evidence to establish the objective reasonableness of his or her fear the danger of violence is" ‘imminént.’ ”). Considering the factors in section 741.30(6)(b), as the court must, Leal had turned violent against Diaz before, and as recently as 2015. Leal controlled Diaz’s relationships with family and friends. Leal restricted Diaz from leaving their home. Leal tried to take away Diaz’s immigration paperwork, and threated to take away her car, license and money. And Leal’s confrontation with Diaz was in front of their child, in the parking lot of Diaz’s apartment building. Given these facts, Leal’s assurance that “you are safe” because Diaz was the mother of his son did not make Diaz’s belief any less reasonable. That they shared a child had not stopped Leal from confronting Diaz in the parking lot, sending offensive text messages, being violent with her in the past, and controlling her friends, family, money, and work.

This case is most similar to Giallanza v. Giallanza, 787 So.2d 162 (Fla. 2d DCA 2001), where the court found the evidence sufficient to support the initial injunction. Id. at 164 (“[W]e- agree that the Wife’s allegations in her initial petition were sufficient to warrant the trial court’s- entry of the initial injunction in July 1995.”). There, in a 1995 petition for domestic violence injunction, the wife alleged that her husband slammed her into a door jamb in 1985, wrapped his hands around her neck in 1987, and “had recently been very angry and vérbally abusive to her due- to • the parties’ impending divorce.” Id. at 163.

Here, too,' we have evidence of prior violence and angry and abusive conduct. The prior violence, however, was much more recent (one year rather than eight) and the angry and abusive conduct was more specific and severe. Together with Leal’s controlling behavior and attempts to take Diaz’s immigration documents, we conclude that'there was competent substantial evidence supporting the trial court’s finding that Diaz had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence.

Affirmed.

      . The facts are taken from Diaz’s testimony at the injunction hearing. The only two witnesses were Diaz and Leal, and the trial court credited Diaz’s testimony and discredited Leal’s. Leal does not challenge the trial court's credibility finding on appeal.


author: SCALES, J. SALTER, J.

text:
    Lucy PERRY, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 3D16-911
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017.

      Florida Legal Services, Inc., and Cindy Huddleston and Kathy Grünewald (Tallahassee); Legal Services of Greater Miami, Inc., and Liam Joseph McGivern and James Murray Slater, for petitioner.
    Leslie Hinds St-Surin, Regional Legal Counsel, for respondent.

      Before ROTHENBERG, SALTER, and SCALES, JJ.
   SCALES, J.

Petitioner Lucy Perry seeks a writ of mandamus requiring Respondent Department of Children and Families (“DCF”) to provide Petitioner with the notice and opportunity for hearing required by Florida’s Administrative Procedure Act (“APA”). We deny the petition because DCF provided Petitioner with the required notice upon making its substantial interest determination.

I. Facts

At all times material, Petitioner was a food assistance recipient pursuant to Florida’s Supplemental Nutrition Assistance Program (“SNAP”). Florida’s SNAP was modified in 2015, so that, effective January 1, 2016, SNAP recipients designated by DCF as being Able Bodied Adults Without Dependents (“ABAWDs”) are required to participate in a SNAP Employment and Training (“E & T”) program, operated by a local workforce services organization. The purpose of these E & T programs is to help SNAP recipients gain skills and work experience in order to achieve self-sufficiency. SNAP benefits cease if an ABAWD SNAP recipient, who is otherwise not entitled to exception or exemption, fails to meet the work requirements. It appeal's that an ABAWD SNAP recipient is excepted or exempt from work requirements if, among other reasons set forth in federal administrative rules, the individual has dependents, is pregnant, is over the age of forty-nine or is physically or mentally unable to work. See 7 C.F.R. § 273.24(b), (c) (2015). Unless exempted, an ABAWD may receive SNAP benefits for no more than three months in any thirty six-month period. Id.

All SNAP recipients, whether or not deemed an ABAWD, are required to undergo a continual re-application, and re-certification of their eligibility, for SNAP benefits. On or about December 21, 2015, DCF provided Petitioner with a Notice of Eligibility Review document reminding Petitioner of her obligation to re-apply for benefits if she desired to obtain SNAP benefits beyond January of 2016. This letter purported to inform Petitioner of new guidelines applicable to those SNAP recipients identified by DCF as ABAWDs, indicating the possibility that Petitioner could be re-classified as an ABAWD. To that point, Petitioner had received food benefits since 1997, not as an ABAWD due to disability.

This December 21, 2015 Notice of Eligibility Review contained a boilerplate notice informing Petitioner that she had a right to ask for a hearing before a hearing officer. The record reflects that the next notice Petitioner received was a February 9, 2016 Notification of Mandatory Participation sent to Petitioner not by DCF, but by City of Miami Career Center, i.e., the local workforce services organization operating the SNAP E & T program. This notice states, in relevant part, as follows: “You are receiving this notice because DCF referred you to the SNAP E & T program as a mandatory participant.” While this February 9, 2016 notice advises Petitioner, in general terms, of a right to have “decisions about your case reviewed by a program supervisor,” it does not provide any notice of how Petitioner might challenge DCF’s identification of Petitioner as a time-limited ABAWD mandatory participant.

As the record indicates, sometime between December 21, 2015 (the date of DCF’s Notice of Eligibility Review explaining that certain SNAP recipients would be designated by DCF as ABAWDs), and February 9, 2016 (the date of the workforce service organization’s notice to Petitioner), DCF designated Petitioner as a time-limited ABAWD required to participate in the SNAP E & T program. On February 23, 2016, DCF sent Petitioner a Notice of Case Action informing Petitioner that her SNAP benefits would end on March 31, 2016, because Petitioner did not complete the ABAWD work requirements. This Notice of Case Action contained the same boilerplate hearing notice that appeared in DCF’s December 21, 2015 letter. While not entirely clear from the record, it appears that DCF terminated Petitioner’s SNAP benefits, effective April 1,2016.

Petitioner engaged counsel who sent DCF a March 31, 2016 e-mail suggesting that DCF provide specific notice to SNAP recipients who have been identified as ABAWDs, to allow such time-limted ABAWD SNAP recipients, such as Petitioner, the opportunity to challenge their ABAWD designations. The record reflects that DCF did not respond to this e-mail, and thus this petition seeking mandamus relief followed. Petitioner alleges that she is unable to work, and therefore, is exempt from the employment and training requirements applicable to those SNAP recipients identified by DCF as ABAWDs.

Through supplemental briefing invited by the Court, the record reflects that Petitioner’s SNAP benefits were restored sometime after the April 21, 2016 filing of this petition. The record, however, also evidences that DCF, late in 2016, sent Petitioner another notice informing her of the eligibility requirements that are mandatory for SNAP recipients identified as ABAWD. As of the date of oral argument, it was unclear as to whether DCF now classified Petitioner as an ABAWD or as ABAWD-exempt. The parties agree, however, that Petitioner is still receiving SNAP benefits.

II. Nature of Mandamus Remedy

Petitioner seeks a writ of mandamus from this Court requiring DCF to provide her (and presumably all SNAP recipients whom DCF has identified as ABAWDs) with notice of the ABAWD designation and an opportunity to challenge this designation in an administrative proceeding. The extraordinary remedy of mandamus applies exclusively to enforce a ministerial duty of a government official. Monroe Cty. v. Cisneros, 49 So.3d 801, 801 (Fla. 3d DCA 2010). A party seeking mandamus relief must establish that the government official has violated a clear legal right of the petitioner by failing to perform a corresponding, indisputable legal duty. Tucker v. Ruvin, 748 So.2d 376, 377 (Fla. 3d DCA 2000). A legal duty is ministerial only when there is no room for the exercise of discretion, and the government official is required to perform the duty by law. Key Biscayne Gateway Partners, Ltd. v. Vill. of Key Biscayne, 172 So.3d 499, 499 (Fla. 3d DCA 2015).

III. Analysis

At the outset, we note that, pursuant to the APA, when actions undertaken by a Florida administrative agency- affect one’s “substantial interests,” the affected person is entitled to an administrative hearing. § 120.569(1), Fla. Stat. (2015), This right to a hearing generally is triggered by the agency issuing an order that notifies the affected person of- the right to the hearing. Id. Usually, then, the agency’s issuance of an- order defines the “clear point of entry” into administrative dispute resolution. Fla. League of Cities, Inc. v. Admin. Comm’n, 586 So.2d 397, 413 (Fla. 1st DCA 1991).

In this case, the parties dispute when DCF undertook actions affecting Petitioner’s substantial interests so as to trigger Petitioner’s right to an administrative hearing. Petitioner argues that her substantial interests were determined by DCF when DCF — sometime between December 21, 2015, and February 9, 2016 — re-classified her as a time-limited ABAWD, Because. this re-classification affected her substantial interests as a SNAP benefits recipient, Petitioner argues that she should-have been notified of her right to an administrative hearing at this time. DCF argues that, for the purposes of SNAP benefits, Florida’s Administrative Code expressly establishes that Petitioner’s substantial interests were determined when DCF notified Perry of DCF’s intention to discontinue, terminate or reduce Petitioner’s SNAP benefits. DCF further argues .that-it rendered this determination in its February 23, 2016 Notice of Case Action'to Petitioner,, and that this letter contained the required notice to Petitioner of the availability of an ■ administrative hearing.

Indeed, Florida’s Administrative Code requires notice and opportunity to be heard “when the Department’s action .., would adversely affect the individual’s ... eligibility for ,.. Food Stamp Program Benefits.” Fla. Admin. Code R. 65-2.042 (emphasis added). Further, the Florida Administrative Code provides that “[i]n cases of intended action to discontinue, terminate or reduce assistance, the Department shall give timely and adequate notice.” Fla. Admin. Code R. 65-2.043(2) (emphasis added). Hence, the relevant administrative rules expressly establish a SNAP recipient’s “clear point of entry” into the administrative hearing process as occurring when DCF makes, a determination regarding the person’s actual receipt of SNAP benefits, rather than when DCF makes a preliminary determination that might affect those benefits in the future.

While DCF’s February 23, 2016 letter to Petitioner is not the model of clarity, it does notify Petitioner that she has a right to a hearing. Granted, prior to this February 23, 2016 letter, DCF made the decision to re-classify Perry as ,a time-limited ABAWD; nonetheless, DCF’s proposed re-classification of Petitioner and DCF’s ensuing change to Petitioner’s SNAP benefits are bound together so, tightly that, perforce, Petitioner would have to address both determinations at a requested hearing. We therefore conclude that DCF supplied Petitioner sufficient notice and opportunity to be heard in its February 23, 2016 correspondence to her.

Consequently, we cannot say that DCF has a ministerial duty to issue Petitioner further notice so as to warrant mandamus relief. We deny the petition for writ of mandamus because the record establishes that DCF fulfilled its ministerial duty to Petitioner.

Petition denied.

ROTHENBERG, J., concurs.

SALTER, J.

(concurring).

I concur that the petition for mandamus must be denied. I write only to provide an exclamation point to my colleague’s statement that DCF’s letter to Petitioner “is not the model of clarity” (op. at 650). When DCF prepared the mass-mailed written communications directed to the many recipients of supplemental nutrition assistance program (“SNAP”) benefits in Florida notifying those recipients of (1) a new eligibility requirement, and (2) the potential loss of benefits if the new requirement is not fulfilled, DCF was obligated to comply with the “easily understandable language” requirement of Florida Administrative Code Rule 65-2.043(3)(b).

“Easily understandable language” allows the reader to determine when he or she has a “clear” point of entry into an administrative process that affects a substantial interest of the reader. Fla. Admin. C. R. 65-2.043(3)(b). Such a notice “does not have to track any particular language or recite statutory provisions verbatim, so long as it clearly informs the affected party of its rights and time limits.” Fla. League of Cities, Inc. v. Admin. Comm’n, 586 So.2d 397, 414 (Fla. 1st DCA 1991) (emphasis provided).

DCF argues that adequate “incremental” notice was provided to Ms. Perry, gleaned cumulatively from multiple communications and, if necessary, supplemented by online websites identified in the multiple notices. I disagree. The first notice in December 2015 told Ms. Perry that “Starting January 1, 2016, certain food assistance recipients will have to meet work requirements to be eligible to receive food assistance benefits,” and that those recipients are known as Able-Bodied Adults Without Dependents (“ABAWDs”). It did not tell Ms. Perry that she was an ABAWD; The record here shows that she is not.

That notice also told Ms. Perry that ABAWDs were “physically and mentally able to work” and “not exempt from food assistance general employment program work requirements.” DCF’s notice told her that “if’ she was an. ABAWD, (1) she would be referred to participate in an employment and training program, and (2) “if’ an ABAWD didn’t meet the work requirements, the ABAWD’s food assistance benefits would be curtailed.

On February 9, 2016, Ms. Perry received a “Notification of Mandatory Participation,” from the City of Miami Career Center, an employment and training program provided by the Florida Department of Economic Opportunity (not DCF). That notice told Ms. Perry that she had been referred to the program by DCF; “This means, in order to continue receiving food assistance, you will be required to participate in work-related activities for 80 hours per month.” But this notice was issued by another agency, not by DCF; the notice didn’t provide an administrative remedy or notice of appeal rights; and DCF had never notified Ms. Perry that she was being referred to the City of Miami Career Center based on DCF’s conclusion that she was an ABAWD.

Finally, when Ms. Perry did not participate in the City of Miami Career Center program as directed, DCF sent her the notice of February 23, 2016, advising her that her SNAP benefits would be terminated at the end of March because she “did not complete a work activity without having a good reason.” That notice of case action included information regarding Ms. Perry’s “right to ask for a hearing before a state hearings officer,” and thus a clear point of entry to challenge that administrative sanction.

DCF argues that these incremental notices were steps in a process, but only the final notice required a due process notification of the right to obtain a hearing. Ms. Perry responds that the decision to change her status to “ABAWD,” which plainly occurred at or before the time DCF referred her to the City of Miami Career Center (without notifying her), also required such a notice. Ms. Perry maintains that the “Notification of Mandatory Participation” issued by the City of Miami Center would not have issued, but for her re-classification by DCF as an ABAWD, and that the directive to report, be trained, and work 80 hours each month, is a matter affecting her “substantial interests,” under section 120.569(1), Florida Statutes (2016). And had Ms. Perry attempted to comply with the directive — needlessly, because DCF concedes that she has at all times been disabled so as to be exempt from the ABAWD training and work requirements — I would agree with her point. But she did not.

So while the language in the various communications to Ms. Perry is not, in my view at least, “easily understandable” or “clear,” we are not assessing that question in the context of an administrative claim for the restoration of unpaid benefits to a single claimant, or for a declaratory statement that Ms. Perry is not an ABAWD. Rather, Ms. Perry seeks the “extraordinary” remedy of mandamus, see, e.g., Scott v. State, 130 So.3d 741, 742 (Fla. 3d DCA 2014).

We cannot issue a writ to DCF directing its employees to correct previously-issued notices of case action to make them “easily understandable” and “clear.” Nor can we write such notices for the agency. For these reasons, I concur that the petition for mandamus must be denied.

      . Florida’s SNAP program is authorized by federal law to provide food to low income individuals who meet the federal eligibility requirements. 7 U.S.C.§ 2011 et seq. Florida implements SNAP on a voluntary basis in order to address hunger and nutrition in low income households. As of the date of the filing of the petition for writ of mandamus, there were approximately 3,500,000 people in Florida receiving SNAP benefits. This program was known formerly as Food Stamps.

      . February 22, 2017.

      . In pertinent part, the letter states ; " Your Food Assistance benefits for the person(s) listed below [Lucy Perry] will end on March 31, 2016 .... We are applying the penalty listed below beginning April 1, 2016, because the head of your Food Assistance household .'., did not complete a work activity without having a good reason, If you comply before the begin date of the penalty, we will not impose a penalty .... ” Further, the letter states, "You have the right to ask for a hearing before a state hearings offlcbr.” The February 23, 2016 letter then includes instructions for requesting a hearing,

      . Petitioner has not challenged the validity of these rules.


author: VILLANTI, Chief Judge.

text:
    Christopher Joseph GAUT, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, and Rachelle Dawn Hansen, Appellee.
    Case No. 2D16-1619
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017.

      Christopher Joseph Gaut, pro se.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee Department of Revenue.
    No appearance for Rachelle Dawn Hansen.
   VILLANTI, Chief Judge.

Christopher Joseph Gaut appeals the Final Administrative Paternity and Support Order rendered by the Department of Revenue, Child Support Enforcement Program (the Department). Gaut raises two points on appeal: (1) the Department erred in determining his current child support and (2) the Department erred in determining his retroactive child support. As explained below, we affirm in part and reverse in part.

We affirm on the first point inasmuch as the Department requested income information from Gaut and provided him with notice advising him of his right to participate and to request a hearing. Moreover, the Department correctly could and did utilize available state wage information to calculate Gaut’s current child support obligation. See § 409.2563(5)(a), Fla. Stat. (2016) (“[T]he department may proceed on the basis of information available from any source, if such information is sufficiently reliable and detailed to allow calculation of guideline schedule amounts .... ”). Because Gaut failed to provide income information or to participate in the proceedings below, he cannot complain for the first time on appeal that the court utilized the statutorily permissible methodology to calculate his current child support obligation.

In contrast, on the second point the Department acknowledges that it incorrectly used Gaut’s current child support obligation calculation to also determine his retroactive obligation. Moreover, because the Department had state wage information for the time period in which retroactive child support was due, and because the income information for the two time-frames differed, “the Department ought not to [have] ignore[d] the information in its own files” when it calculated Gaut’s retroactive child support due. Salters v. Dep’t of Revenue ex rel. Mobley, 32 So.3d 777, 778 (Fla. 2d DCA 2010); see also § 61.30(17)(a), Fla. Stat. (2016).

Therefore, we affirm as to Gaut’s current support obligation but reverse as to Gaut’s retroactive support obligation. We remand for the Department to recalculate his retroactive child support obligation using the income information it has from the state for that time period.

Affirmed in part, reversed in part, and remanded with directions.

CRENSHAW and BADALAMENTI, JJ., Concur.


text:
    Huong Thanh CURIALE, Appellant, v. Michael CURIALE, Appellee.
    Case No. 2D16-5587
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017
    Shayna K. Cavanaugh of Law Office of Shayna K. Cavanaugh, P.A., Naples, for Appellant.
    Holly A. Rice of Ross, Lanier, & Deifik, P.A., Naples, for Appellee.
   VILLANTI, Chief Judge.

Huong Thanh Curíale (the Mother) seeks review of the order denying her verified emergency motion to modify the temporary time-sharing order relating to her children with Michael Curíale (the Father). To the extent that the trial court denied the Mother’s request for a change in the time-sharing schedule at this time, we affirm without further discussion. However, because the order denying relief does not identify the specific steps that the Mother must take to regain unsupervised time-sharing with her children, we must reverse and remand for the trial court to identify such steps.

When the parties initially filed for dissolution of their marriage, the court granted them roughly equal time-sharing with their children. During the course of the proceedings, time-sharing between the children and the Father was temporarily suspended based on certain allegations made by the Mother; however, after these allegations were determined to be unfounded, the court ordered that the parties return to roughly equal time-sharing. Despite this order, the Mother actively took steps to continue to prevent the Father from seeing the children. Based on these actions, the trial court found the Mother in contempt, transferred primary, residential custody to the Father, and permitted the Mother supervised time-sharing only. The Mother did not appeal the contempt order.

As part of the contempt order, the trial court required the parties to undergo a social evaluation. After the.social evaluation was completed, the Mother filed an emergency verified motion to modify the temporary order so that she could return to having unsupervised time-sharing with her children. Following an évidentiary hearing, the trial court denied this motion. However, the court did not identify, either on the record or in the written order, what steps the Mother would have to take to reestablish unsupervised time-sharing with her children. This Mother argues that this failure renders the order legally deficient. We agree.

As this court has explained:

“Although termination of visitation rights is disfavored, ... the trial court has discretion to restrict or deny visitation when necessary to protect the welfare of the children.” Hunter v. Hunter, 540 So.2d 235, 238 (Fla. 3d DCA 1989). However, when the court exercises this discretion, it must clearly set forth the steps the parent must take in order to reestablish time-sharing with the children. Id.; see also Ross v. Botha, 867 So.2d 567, 571 (Fla. 4th DCA 2004). Essentially, the court must give the parent the key to reconnecting with his. or her children. An order that does not set forth the specific steps a parent must take to reestablish time-sharing, thus depriving the parent of that key, is deficient because it prevents the parent from knowing what is expected and prevents any successor .judge from monitoring the parent’s progress. See Ross, 867 So.2d at 571.

Grigsby v. Grigsby, 39 So.3d 453, 456-57 (Fla. 2d DCA 2010) (alteration in original) (emphasis added); see also Perez v. Fay, 160 So.3d 459, 466-67 (Fla. 2d DCA 2015). The steps necessary to reestablish time-sharing will be different in each case because they should be designed ,to assist the parent in remedying the problems that led to the parent losing time-sharing in the first place. And while a trial court that ha.s identified such steps maintains the discretion to determine whether the parent has made sufficient progress to warrant restoration of time-sharing, the trial court does not have discretion at the outset to refuse to tell a parent what he or she must do to restore full parental rights.

Here, as the Father properly concedes, the trial court’s order does not set forth the specific steps the Mother must take in order to reestablish unsupervised time-sharing with the children. Therefore, we reverse the trial court’s order to the extent that it fails to include such steps. On remand, the trial court must issue a new order setting forth the steps the Mother must take to reestablish unsupervised time-sharing.

Affirmed in part,-reversed in part, and remanded with instructions.

SILBERMAN and LUCAS, JJ., Concur.


author: ROTHENBERG, J.

text:
    J.G., the Mother, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, and the Guardian ad Litem Program, Respondents.
    No. 3D17-697
    District Court of Appeal of Florida, Third District.
    Opinion filed June 14, 2017

      Marc Anthony Douthit, for petitioner.
    Karla Perkins, for respondent Department of Children & Families; Laura J. Lee (Sanford), for respondent Guardian ad Litem Program.
    Before ROTHENBERG, SCALES, and LUCK, JJ.
   CONFESSION OF ERROR

ROTHENBERG, J.

J.G., the Mother (“Mother”), petitions this Court for a writ of certiorari to review the trial court’s order terminating the Department of Children and Families’ (“Department”) supervision over the Mother’s minor child, M.G. Based on the Department’s proper and commendable confession of error, we grant the petition, quash. the order under review, and remand for an evidentiary hearing consistent with section 39.522(2), (3), Florida Statutes (2017).

The Mother’s minor children, including M.G., were adjudicated dependent in February 2016. Thereafter, several case plans were filed with the stated goal of reuniting the Mother and M.G. On January 12, 2017, the Mother filed a motion for reunification, asserting that she had completed her case plan services and had been having unsupervised overnight visitations with M.G.

Without conducting a hearing on the Mother’s motion for reunification, the trial court, on February 23, 2017, entered an order, over the Mother’s objection, which granted the Department’s motion to terminate protective supervision as to M.G., who was in the custody of her non-offending father; allowed the Mother unsupervised visitation with M.G. twice a week for four hours per visit; and stated that the trial court was not retaining jurisdiction.

In this petition for writ of certio-rari, the Mother contends that the trial court departed from the essential requirements of law by granting the Department’s motion to terminate protective services without conducting a hearing on the Mother’s motion for reunification. We agree.

As the Department has properly conceded, the Mother is entitled to an eviden-tiary hearing on her motion for reunification. Section 39.522(2), Florida Statutes (2017), provides:

In cases where the issue before the court is whether a child should be reunited with a parent, the court shall determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.

Further, section 39.522(3) requires the trial court to determine whether the minor child should nonetheless stay with the non-offending parent even though the trial court has determined that the offending parent is in substantial compliance with the case plan. In making this determination, “the standard shall be that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.”

We, therefore, grant the petition, quash the order under review, and remand with instructions for the trial court to conduct an evidentiary hearing consistent with section 39.522(2), (3), Florida Statutes (2017).

Petition granted; order quashed; remanded for further proceedings.

      . A party seeking certiorari relief must demonstrate that the trial court’s order "depart[s] from the essential requirements of law, resulting in irreparable harm that cannot be adequately remedied on final appeal.” Millennium Diagnostic Imaging Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 129 So.3d 1086, 1089 (Fla. 3d DCA 2013). The last two elements are often referred to as irreparable harm, see Stockinger v. Zeilberger, 152 So.3d 71, 73 (Fla. 3d DCA 2014), and ‘‘[t]he establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.” Id. Here, the Mother has established the jurisdictional prerequisites to certiorari relief.


text:
    L.J. a/k/a M.L., Father of A.J., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D17-1069
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 15, 2017

      Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant,
    Kelley Schaeffer, Appellate Gounsel, Department of Children & Families, Braden-ton, for Appellee.
    C. Andrew Roy, of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for Guardian ad Litem.
   PER CURIAM.

L.J., a.k.a. M.L., Father of A.J. (“Father”), appeals the trial court’s final order terminating his parental rights to A.J., a minor child. Father argues the trial court erred by. failing to include a finding that reunification posed a substantial risk of harm to A.J, Finding that competent, substantial evidence supports termination of Father’s parental rights, we affirm the trial court’s order but remand for the trial court to enter additional findings consistent with this opinion.

Immediately following A.J.’s birth, the Department of Children and Families (the “Department”) filed a shelter petition after both A. J. and his mother (“Mother”) tested positive for cocaine. The Department later petitioned to involuntarily terminate the rights of both parents. After the Department located Father in jail, the trial court ordered a DNA test, which established Father’s paternity of A. J. The Department then filed an amended petition for termination of parental rights on the basis that Father’s rights to his two other children were terminated in 2009 and 2014.

At the subsequent trial, the trial court took judicial notice of official records from Michigan showing that Father previously had his parental rights to one child terminated. In the Michigan case, Father admitted that he also had his rights to another child terminated in Tennessee, The Department presented extensive testimony establishing that Father never saw A.J., did not provide financial support, had a history of substance abuse, and was often incarcerated. The Department’s witnesses further testified that Father lacked the capacity to care for A.J., and that he failed to remedy the reasons for which his rights to his other children were terminated.

The trial court entered a final judgment terminating ■ Father’s parental rights to A.J. on the basis that he had rights to two other children terminated. The trial court’s order included findings as to each statutory factor, discussed AJ.’s manifest best interests, and explained that termination was the least restrictive , means of protecting A.J. from harm. Father appealed the order, raising only the argument that the trial court improperly failed to include a finding that reunification posed a substantial risk of harm to A. J.

“Where a trial court has found that there is clear and convincing evidence supporting a termination of parental rights, such findings enjoy a presumption of correctness and will not be overturned unless clearly erroneous and lacking evidentiary support.” L.F. v. Dep’t of Child. & Fams., 888 So.2d 147, 148 (Fla. 5th DCA 2004) (citing C.C. v. Dep’t of Child. & Fams., 886 So.2d 244 (Fla. 5th DCA 2004)). “The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” N.L, v. Dep’t of Child. & Fam. Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003) (quoting In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla. 1995)).

Section 39.806(1)(i), Florida Statutes (2017), provides that a trial court may terminate parental rights where “[t]he parental rights of the parent to a sibling of the child have been involuntarily terminated.” In Florida Department of Children & Families v. F.L., 880 So.2d 602, 609 (Fla. 2004), the Florida Supreme Court explained that, to pass constitutional muster, the Department must also establish “that reunification would be a substantial risk to the child and that termination is the least restrictive way to protect the child.”. The court then set forth several factors for trial courts to consider when determining whether the parent’s conduct poses a significant risk of harm to the child: ■

Specifically, if the parent’s conduct that led to the involuntary termination involved egregious abuse or neglect of another child, this will tend to' indicate a greater risk of harm to the current child. The amount of time that has passed since the prior involuntary termination will also be relevant. A very recent involuntary termination will tend to indicate a greater current risk. Finally, evidence of any change in circumstances since the prior involuntary termination will obviously be significant to a determination of risk to a current child. While a parent’s past conduct necessarily has some predictive value as to that parent’s likely future conduct, positive life changes can overcome a negative history.

Id. In other words, the Department must prove “that the parent suffers from a condition that makes probable the prospect of future abuse or neglect of a child and that the condition was one which was likely to continue.” R.K. v. Dep’t of Child. & Fams., 898 So.2d 998, 1000 (Fla. 5th DCA 2005) (citing Dep’t of Child. & Fams. v. B.B., 824 So.2d 1000 (Fla. 5th DCA 2002)).

We find that, although the evidence presented at the hearing supports termination of Father’s parental rights under section 39.806(1)(i), the trial court failed to include the required finding that “reunification would be a substantial risk to the child.” See F.L., 880 So.2d at 609. We disagree with Father’s assertion that an outright reversal and remand for additional dependency proceedings is the correct disposition in this appeal. Rather, we affirm the trial court’s finding that the evidence warranted termination of Father’s parental rights but remand for the trial court to include findings concerning whether reunification poses a substantial risk of harm to A.J. See E.I. v. Dep’t of Child. & Fams., 979 So.2d 378, 379 (Fla. 4th DCA 2008) (affirming denial of motion for reunification but remanding for entry of statutorily compliant order); P.J. v. Dep’t of Child. & Fams., 783 So.2d 1148, 1149 (Fla. 5th DCA 2001) (vacating termination order and remanding “with instructions to enter a termination order which complies with the statute”).

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

ORFINGER, WALLIS and LAMBERT, JJ., concur.

      . In the interim, Mother entered a voluntary surrender of her parental rights.