text:
    CITY OF COOPER CITY, Appellant, v. Walter S. JOLIFF, Barbara Joliff and Brenda J. Kezar, Appellees.
    No. 4D16-2504
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2017]

      Edward G. Guedes and Adam A. Schwartzbaum.' of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Jamie A. Cole and Matthew H. Mandel of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for appellant.
    Christopher J. Lynch of Christopher J. Lynch, P.A., Coral Gables, and David Frankel, P.A., Fort Lauderdale, for appel-lees.
   Kuntz, J.

The City of Cooper City appeals the court’s final judgment in favor of the Plaintiffs, a class of citizens -challenging the city’s special assessment. The court found the special assessment void and, therefore, found its twenty-day deadline to challenge it inapplicable. We disagree. The Plaintiffs limited their challenge to Cooper City’s apportionment of the special assessment and the improper apportionment of-a special assessment renders it voidable. As a result of the special assessment being voidable, rather than void, the deadline to challenge the special assessment applied and the Plaintiffs failed to timely challenge it. Therefore, we reverse the court’s judgment and remand for entry of judgment in favor of Cooper' City.

Background

In 1999, Cooper City passed Ordinance 99-7-1, levying a special assessment for Fire Rescue Services. The ordinance defined “Fire Rescue Services” as “Emergency Medical Services and Rescue Services.”

Three years later, in City of North Lauderdale v. SMM Properties, Inc., 825 So.2d 343 (Fla. 2002), our supreme court held that emergency medical services do not provide a “special benefit” to property and, therefore, cannot be the basis for a special assessment. In accordance with that decision, Cooper City amended the ordinance, removing the term “emergency medical services” from the definition of “Fire- Rescue Services.” Thereafter, for 2006, 2007, 2008, and 2009, Cooper City passed annual resolutions implementing the special assessment without emergency medical services as an item for which the property owner was being assessed.

In 2011, the Plaintiffs filed a two-count putative class action lawsuit against Cooper City. Count I sought damages for assessments collected for the years 2006 through the present; and Count II sought a declaratory judgment determining “the Fire Protection Assessment set forth in the Ordinance lacks foundation "and thus is improperly apportioned.”

The court granted a motion to certify the putative class and certified the class as “[a]ny and all record title- owners of residential real property located within'Cooper City subject to the Cooper City Fire Rescue Assessment, who paid the Cooper City Fire Rescue Assessment for the fiscal tax years commencing October 1, 2006, 2007, 2008, and 2009.” We affirmed the court’s class-certification order. Cooper City v. Joliff, 126 So.3d 1066 (Fla. 4th DCA 2013) (table).

After we affirmed the certification order, the Plaintiffs renewed a previously-filed motion for summary judgment. Cooper City filed its own motion for summary judgment, asking the court to decide whether a twenty-day deadline contained in the ordinance barred the Plaintiffs’ claims. The relevant provision in the ordinance stated:

The adoption of the final assessment resolution shall be the final adjudication of the issues presented (including, but not limited to, the determination of special benefit and fair apportionment to the assessed property, the method of apportionment and assessment, the initial rate of assessment, thé initial assessment roll, and the levy and lien of the Fire Assessments), unless proper steps shall, be initiated in a court of compe tent jurisdiction to secure relief within twenty (20) days from the date of the city commission action on the final assessment resolution.

(Emphasis added). The Plaintiffs argued the¡ twenty-day deadline in this provision was inapplicable; that rather, the four-year statute of limitations in section 95.11, Florida Statutes (2011), controlled the time within which they were required to file their complaint. Therefore, they asserted that even if the claims were voidable, the majority of their claims were timely filed.

On the merits, the Plaintiffs argued to the court that after our supreme court’s opinion in SMM Properties, “most municipalities ... went back and they recalculated and they figured out what their appropriate assessment would be for just fire to comply with the law.” However, they argued, “Cooper City didn’t catch it” and for each of the assessments at issue, its methodology continued to rely on a study that included emergency medical services as a component. As such, they argued the assessments were void.

The court granted the Plaintiffs’ motion for summary judgment, denied Cooper City’s motion, and found the special assessments void. Importantly, the Plaintiffs then moved to voluntarily dismiss Count I and to amend Count II, seeking supplemental relief for the second count. The court granted the motion, and then entered final judgment in favor of the Plaintiffs.

Cooper City appealed, asking that we reverse the court’s judgment in favor of the Plaintiffs and enter judgment in its favor or, alternatively, reverse the summary judgment for further proceedings.

Analysis

A. Taxes and Special Assessments-Generally

Taxes are unavoidable. Hamilton explained that “a complete power to procure a regular and adequate supply of revenue ... may be regained as an indispensable ingredient in every constitution.” The Federalist No. 30, at 188 (Alexander Hamilton) (C. Rossiter ed., 1961). However, the power to tax is not absolute. As Jefferson countered, a government is “not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union.” Thomas Jefferson, Opinion on the Constitutionality of a National Bank (1791), reprinted in Michael S. Paulsen, Our Constitution: Landmark Interpretations of America’s Governing Documents 17,19 (2012).

The people of Florida have included a limitation on the government’s power to tax in our state constitution. See, e.g., Art. VII, §§ 1(a), 9(a), Fla. Const. Relevant here is the fact that local governments lack the “authority to levy taxes, other than ad valorem taxes, except as provided by general law.” Desiderio Corp. v. City of Boynton Beach, 39 So.3d 487, 493 (Fla. 4th DCA 2010) (citing Collier County v. State, 733 So.2d 1012, 1014 (Fla. 1999)).

These limitations require local governments continually to seek to expand their revenue other than through taxation. To do so, local governments use various tactics such as user fees, impact fees, and special assessments. At issue in this case are special assessments.

When used properly, a tax and a special assessment are unique. A tax is a burden “of contribution imposed by sovereign right for the support of the government, the administration of the law, and to execute the various functions the sovereign is called on to perform.” Klemm v. Davenport, 100 Fla. 627, 129 So. 904, 907 (1930). A special -assessment is “like a tax in that it is an enforced contribution from the property owner, it may possess other points of similarity to a tax, but it is inherently different and governed by entirely different principles.” Id. A special assessment

is imposed upon the theory that that portion of the community which is required to bear it receives some special or peculiar benefit in the enhanc,ement of value of the property against which it is imposed as a result of the improvement made with the proceeds of the special assessment. It is limited to the property benefited, is not governed by uniformity, and may be determined legislatively or judicially.

Id.

For almost a century, our supreme court has called upon local governments to ensure the limitations on taxation set forth in our constitution are not avoided by the blurring of the line between taxes and special assessments. See, e.g., Morris v. City of Cape Coral, 163 So.3d 1174 (Fla. 2015); SMM Props. Inc., 825 So.2d at 343; Collier County, 733 So.2d at 1012; Lake County v. Water Oak Mgmt. Corp., 695 So.2d 667 (Fla. 1997); Harris v. Wilson, 693 So.2d 945, 949 (Fla. 1997); Sarasota County v. Sarasota Church of Christ, Inc., 667 So.2d 180 (Fla. 1995); City of Boca Raton v. State, 595 So.2d 25 (Fla. 1992); City of Treasure Island v. Strong, 215 So.2d 473 (Fla. 1968); Blake v. City of Tampa, 115 Fla. 348, 156 So. 97 (1934); Klemm, 129 So. at 904; Atl. Coast Line R.R. Co. v. City of Gainesville, 83 Fla. 275, 91 So. 118, 121 (1922).

These cases, and others, establish a two-prong test for the imposition of a valid special assessment. First, the property to be assessed “must derive a special benefit from the service provided.” City of Boca Raton, 595 So.2d at 29 (citing Atl. Coast Line R.R. Co., 91 So. at 118). Second, the “assessment must be fairly and reasonably apportioned among the properties that receive the special benefit.” Id. (citing S. Trail Fire Control Dist. v. State, 273 So.2d 380 (Fla. 1973)). As discussed below, ultimately it is only the second prong that is at issue in this case.

B. The Special Assessments Challenged by the Plaintiffs

Now we turn to the special assessments at issue in this case. We review the court’s order granting summary judgment de novo. Fla. Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla. 2001). However, we are required to give greater deference to the legislative body that imposed the assessment. Sarasota Church of Christ, Inc., 667 So.2d at 184 (“[T]he standard is the same for both prongs; that is, the legislative determination as to the existence of special benefits and as to the apportionment of the costs of those benefits should be upheld unless the determination is arbitrary.”).

. We note the parties simplified our task. The Plaintiffs’ complaint was premised on challenges to both prongs of the two-prong test explained above. First, they challenged whether the properties assessed would benefit from the fire and emergency medical services for which they were being assessed. Second,, they challenged whether the assessments had been properly apportioned among the assessed properties.

The answer to the first question may have been simple, as our supreme court has determined emergency medical services do not provide a special benefit to property. SMM Props., 825 So.2d at 344. However, after the circuit court granted summary judgment on the issue of the deadline to challenge the assessment, the Plaintiffs voluntarily dismissed the portion of their complaint challenging the special benefits prong. Cooper City argued in its brief and- at oral argument that the voluntary dismissal removed this challenge from the case. At oral argument, the Plaintiffs agreed the only issue in their challenge related to the. apportionment prong. Therefore, based upon the Plaintiffs’ voluntary dismissal—and their commendable honesty at oral argument—this case relates exclusively to the second prong: apportionment of the special assessment.

i. An Improperly Apportioned Special Assessment Is Voidable, Rather than Void.

The Plaintiffs argue that the failure to properly apportion the special assessment renders it void, and the circuit court agreed. However, our controlling case law establishes that challenges to the amount of assessments, or flaws in the manner under which the amount was calculated, do not render a special assessment void. Fla. E. Coast Ry. Co. v. Reid, 281 So.2d 77, 79-80 (Fla. 4th DCA 1973) (“We are unable to conclude that such a default would produce a ‘void assessment’ within the concept of the above cited cases. The land was admittedly subject to taxation and the assessment was authorized by law, although possibly erroneous in amount.”); Moody v. City of Vero Beach, 203 So.2d 345, 346 (Fla. 4th DCA 1967) (“Irregularities, as such, in administering specific procedures involving special assessments do not render such procedures void if constitutional guarantees are not denied.”). Similarly, our supreme court has held that an assessment that is lawfully issued, but that is irregular or unfair, is merely voidable. Hackney v. McKenney, 113 Fla. 176, 151 So. 524, 528 (1933); see also Markham v. Neptune Hollywood Beach Club, 527 So.2d 814, 815 n.4 (Fla. 1988); City of Treasure Island, 215 So.2d at 476.

Therefore, where the only remaining challenge is to the, apportionment, the challenge- is to the fairness of the apportionment and any impropriety that would result in a voidable ordinance as opposed to a void ordinance.

This conclusion is further supported by section 170.14, Florida Statutes (2016), which provides that if any portion of an assessment is declared invalid by a court, the governing authority is required to reissue the assessment until a “valid assessment shall be made.” § 170.14, Fla. Stat. (2016). Here, Cooper City issued a special assessment and the only challenge raised on' appeal by the Plaintiffs is to its apportionment. Therefore, if the special assessment was improperly apportioned, the statute requires Cooper City to reassess the property.

The fact that Cooper City would be required to reissue the assessment in a properly apportioned manner supports the controlling authority that an assessment that is merely irregular is voidable and not void. A void assessment is one that is issued by a local government without jurisdiction to do so and, in that situation, could not be reissued because the local government lacked the authority to issue it. Here, where the special assessment was alleged to be improperly apportioned, the statutory requirement that the local government reissue the assessment supports the conclusion that it had authority to issue it in the first instance.

Consistent with the controlling authority on the issue, we hold that a successful challenge to the apportionment of a special assessment renders that assessment voidable.

ii. The Plaintiffs Failed to Timely Challenge the Special Assessment.

This- determination—that ■ is, whether the special assessment is either void or voidable—is of vital importance to the Plaintiffs’ claims. A special assessment that is void would not be subject to any procedural deadline—whether it be a statute of limitations defense or a deadline imposed in the ordinance.

However, we find the special assessment here is voidable. And the Plaintiffs fail to demonstrate why the déadline imposed in the ordinance, an ordinance duly passed by the local government authority at a public hearing after notice was given, should not be given effect. Instead, they argue that the general catch-all statute of limitations found in section 9S.ll(3)(p), Florida Statutes (2011), should apply to their challenge.

As an initial matter, we question whether the twenty-day deadline to challenge the assessment is more appropriately called a bar to suit, similar to a statute of nonclaim, as opposed to a statute of limitation. The Florida Supreme Court has held that a “statute of nonsuit” includes reasonable restrictions on “the fixing of a time within which suit must be brought.” Bystrom v. Diaz, 514 So.2d 1072, 1075 (Fla. 1987) (citations omitted)^ The enactment of a time requirement to challenge a special assessment fits into the definition of a statute of nonclaim provided by our sú-preme court. But we need not decide that issue, as we reach the same result in this case regardless of the terminology used.

Limitations such as the twenty-day limitation at issue here have been consistently enforced in this state. In Park-A-Partners v. Dade County, 487 So.2d 94, 95 (Fla. 3d DCA 1986), the Third District affirmed a circuit court’s decision applying a thirty-day deadline to challenge an ordinance. In another case, the Third District held that the plaintiffs were precluded from raising their challenge because “none of' them availed themselves of the ten day time limitation period, following the confirmation of the first assessmént roll, to voice objections or bring appropriate legal action.” Whitman v. City of N. Miami, 223 So.2d 105, 107 (Fla. 3d DCA 1969); see also Gulf View Apartments v. City of Venice, 108 Fla. 41, 145 So. 842, 844 (1933) (upholding three-month deadline to challenge assessment); Carpenter v. Dade County, 269 So.2d 775, 776 (Fla. 3d DCA 1972) (upholding ten-day deadline to challenge assessment).

We certainly agree that the twenty-day deadline at issue in this case is short. However, the proper place to raise that issue is with the legislature or the local government' that imposed the deadline— not a lawsuit in a court of law, filed years after the assessment was due. ■

Many years ago the supreme court held that “where a tax assessment is voidable and not per se void, as where it is made in good faith but is irregular or. unfair, the taxpayer must move in due time.” Hackney, 151 So. at 528. Here, the Plaintiffs failed to move in due time to challenge the apportionment of the special assessment. Therefore, the challenge was waived; their lawsuit barred.

Conclusion

Both parties twice confirmed at oral argument that the sole issue remaining in this case is the apportionment of Cooper City’s special assessment. As the challenge was to the amount of the assessment, and not the authority of the government ‘to issue it, the Plaintiffs were asserting the assessment was voidable. And, as a voidable assessment, the Plaintiffs were required to timely raise their challenge. Having failed to do so, the Plaintiffs were not entitled to judgment in their favor. Cooper City was. On remand, the court shall enter judgment in favor of Cooper City.

Reversed and remanded with instructions.

Gerber, C.J., and Gross, J., concur.

      . There is no dispute that certain of the claims were filed even outside of the four-year period the Plaintiffs relied upon.


source: Caselaw Access Project

author: Conner, J.

license: Public Domain

text:
    HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee, FOR the REGISTERED HOLDERS OF NOMURA HOME EQUITY HOME LOAN, INC., Asset-Backed Certificates, Series 2007-2, Appellant, v. The ESTATE OF Chloe Ann PETERCEN a/k/a Chloe Ann Petersen, Deceased, and Mortgage Electronic Registration Systems, Inc., as Nominee for Master Financial, Inc., Appellees.
    No. 4D16-3283
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2017]
    Michael D. Starks of Greenberg Traurig, P.A., Orlando, and Patrick G. Broderick of Greenberg Traurig, P.A., West Palm Beach, for appellant.
    No appearance for appellees.
   Conner, J.

Appellant (“the Bank”) appeals the tidal court’s order dismissing its foreclosure suit and the order denying its motion for rehearing. The Bank argues that the trial court erred in dismissing the case based on unpled and unproven defenses of res judicata and statute of limitations. Although we agree with most of the Bank’s arguments on appeal, we need not address them in detail. Based on Bartram v. U.S. Bank National Association, 211 So.3d 1009 (Fla. 2016), clarifying the effect of prior dismissals on subsequent foreclosure proceedings, it is clear the trial court erred.

Background

On September 5, 2015, the Bank filed the foreclosure action below against the defendants, which included the unknown heirs of the homeowner’s estate. The complaint alleged a default under the note and mortgage “as of November 1, 2009, and all subsequent payments.” Thereafter, an attorney ad litem was appointed to represent the unknown heirs- and the estate. The attorney ad litem filed an answer and report on behalf of the defendants, raising the statute of limitations as an affirmative defense. Specifically, the affirmative defense stated that the action was filed over five years after the date of default and that the action was therefore time-barred. Additionally, the affirmative defense stated that an earlier foreclosure case brought by the Bank in 2011 had been dismissed without prejudice in May 2013.

Subsequently, the Bank moved to amend the complaint to add a party defendant, attaching a proposed amended complaint. The trial court granted the motion, ordered that the amended complaint was deemed filed, and gave the defendants ten days to respond to the amended complaint. No response to the amended complaint was ever filed by any'of the defendants, nor was anything further filed with the court on their behalf. The matter proceeded to a bench trial with no appearance for the defendants.

At the beginning of the trial, the Bank’s counsel advised the trial court that the answer brief filed by the attorney ad litem alleged a statute of limitations issue, and that there was a statute of limitations issue in the ease. He explained that the default occurred in 2009, and that a prior foreclosure action had been filed in 2011 but was dismissed without prejudice in 2013. He further explained that this second suit, alleging the same original default date, was filed in 2015, almost 6 years after that original default date. The Bank’s counsel argued, before presenting any evidence, that the appropriate remedy would be to recalculate the amounts of principal and the amount of fees at the five-year cut-off to bring the dates within the statute of limitations. The trial court noted that it needed more time to review the case law on this issue, but that it would listen to the Bank’s evidence that day. As such, the Bank proceeded to present its evidence and reargued its earlier position about the statute of limitations. A recess was taken, after which the Bank’s counsel presented the trial court with the recalculated figures bringing the amount due within the five-year limit from the commencement of the. suit. The trial court asked counsel to send it a judgment stating that there was a prior foreclosure which was dismissed and showing that the recalculated judgment amount was based on the case law argued by counsel. However, the trial court also noted that it would still be reviewing the case law before entering its judgment.

Three days later, the trial court issued an order of dismissal, stating that the Bank had previously filed a foreclosure suit involving the same property and mortgage, alleging a default as of November 1, 2009 and all subsequent payments. It noted that the first case was dismissed on May 3,2013 and that:

The dismissal of [the first case] which alleges a default on November 1, 2009, bars a subsequent suit on the same cause of action. Olympia Mortgage Corp. v. Pugh, 774 So.2d 863 (Fla. 4th DCA 2000); Singleton v. Greymar Associates, 882 So.2d 1004 (Fla. 2004); U.S. Bank National Association v. Bartram, 140 So.3d 1007 (Fla. 5th DCA 2014).

Therefore, the- trial court dismissed the instant case, finding that the Bank could not bring a second action alleging a default on the same date. ■ . ■

The Bank then filed a motion for rehearing, arguing that nobody had appeared oh behalf of the defendants at trial, and that there was therefore no evidence presented to support the statute of limitations defense which they had the burden to prove.' The Bank additionally argued that the first-action was dismissed without prejudice and that a subsequent action on that same date would not be precluded on res judica-ta grounds, which had not even been properly raised as a defense, nor was it barred by the statute of limitations because the entire debt did not become due upon default of payment,'but upon the filing of the first action in August 2011, which was less than five years before this second suit was filed. Alternatively, the Bank asserted that at least the suit would not have been barred as to the amounts due within the five-year limit,' where it had alleged a default of not only one date, but of “all subsequent payments.” The trial court denied the Bank’s motion for rehearing. The Bank gave notice of appeal.

Analysis '

Wé apply a de novo standard of review to issues of the application of res judicata and the statute of limitations. Aronowitz v. Home Diagnostics, Inc., 174 So.3d 1062, 1065 (Fla. 4th DCA 2015); Philip Morris USA, Inc. v. Barbanell, 100 So.3d 152, 157 (Fla. 4th DCA 2012).

• The trial court was of the opinion that a subsequent foreclosure proceeding is barred- when it alleges the same beginning default date alleged in a prior foreclosure proceeding -that was dismissed. As quoted above from the trial court order, the trial-court relied on and cited the Fifth District’s opinion in Bartram. Bartram dealt with- the statute of limitations defense.

As clarified by our supreme court in Bartram, issued a few months after the trial court’s dismissal of the instant case, the trial- court- erred. The Bank’s counsel, alerted the trial-court that the supreme court’s review of the Fifth District’s opinion in Bartram was pending at the time of trial, .but as discussed in the order of dismissal, proceeded to urge the trial court to adopt the position of the Third District in its -initial" opinion in Collazo v. HSBC Bank, USA, N.A., — So.3d —, 41 Fla. L. Weekly D933, 2016 WL 1445419 (Fla. 3d DCA Apr, 13, 2016), opinion withdrawn and superseded on reh’g, 213 So.3d 1012 (Fla. 3d DCA 2016), allowing a subsequent foreclosure where the complaint used the same beginning default date in a prior proceeding, but limiting the amount of the judgment to sums overdue within five years of the date the subsequent suit was filed. The trial court did not find the Colla-zo opinion to be persuasive authority, because it was not final and conflicted with existing case law in this District. Instead, as discussed above, the trial court dismissed the case. We note that subsequent to the trial in this case, the Third District withdrew its initial opinion in Collazo -and issued an opinion on rehearing, reversing its initial opinion and determining dismissal of the action was appropriate because a single date of default was alleged in the subsequently filed complaint. Collazo, 213 So.3d at 1013.

In Bartram, our supreme court clarified a few points of law regarding the effect of prior dismissals of foreclosure proceedings with regards to res judicata and the statute of limitations defense. The crux of the analysis concerning both defenses revolved around the equities of foreclosure and the recognition that each default in monthly payments, creates a- continuing cause of action. Bartram, 211 So.3d at 1017. (“Our recognition in Singleton that each new default presented a separate cause of action was based upon the acknowledgement that because foreclosure is an equitable remedy, ‘[t]he ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent mortgagees from being able to challenge multiple defaults on a mortgage.’” (alteration in original)) (quoting Singleton v. Greymar Assoc., 882 So.2d 1004, 1018 (Fla. 2004)). The supreme court’s analysis was also premised on the standard language in residential mortgages granting reinstatement of the mortgage after default, and its agreement with the position of the Real Property Law Section of the Florida Bar that “[t]he lender’s right to accelerate is subject to the borrower’s continuing right to cure.” Id. at 1020-21. The supreme court concluded that “the dismissal of the foreclosure action [has] the effect of revoking the acceleration.” Id. at 1021.

Even more pertinent to this case, the supreme court said:

Therefore, with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage.
Consistent with the reasoning of Singleton, the statute of limitations on the balance under the note and mortgage would not continue to nm after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a “separate and distinct” default. Rather, after the dismissal, the pasties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the resi- . dential mortgage declared in the unsuccessful foreclosure action is revoked.

Id. at 1019 (emphases added). Additionally, after, noting that “a dismissal without prejudice would allow a mortgagee to bring another foreclosure action premised on the same default as long as the action was brought within five years of the, default per section 95.11(2)(c)[, Fla. Stat.],” the court went on to say, “[w]hether the dismissal of the initial foreclosure action by the court was with or without prejudice may be relevant to the mortgagee’s ability to collect on past defaults,” alluding to a res judicata defense. Id. at 1020 (emphases added). ,

After Bartram, two of our sister courts have addressed res judicata and statute of limitations issues with fact patterns similar to'the-instant case,

In Desylvester v. Bank of New York Mellon, 219 So.3d 1016 (Fla. 2d DCA 2017), the bank filed a foreclosure action in 2012, alleging “the borrowers had defaulted on their regular monthly payment due on October 1, 2008,- ‘and all- subsequent payments.’ ” Id. at 1018. That action was dismissed for reasons not disclosed in the record. Id. Then in December 2014, the bank filed a second foreclosure action, again alleging the failure to make the payment due on October 1, 2008,' “and all subsequent payments.” Id. Quoting the language of Bartram that “with each subsequent default, the statute of limitations runs from the date of each new default,” the Second District affirmed the trial court order denying the affirmative defense of statute of limitations, concluding “the allegations of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations.” Id. at 1019-20 (citations omitted). We note it is unclear from the discussion of the facts in Deslyvester that the trial court entered a judgment only for defaults in monthly payments within five years before the date the last suit was filed, but we assume that is the case.

In Forero v. Green Tree Servicing, LLC, 223 So. 3d 440 (Fla. 1st DCA 2017), the mortgage holder filed a foreclosure action in February 2010, alleging a “failure to pay on ‘December 1, 2008 and all subsequent payments.’ ” Id. at 441. The first suit was voluntarily dismissed in December 2011. Id. A second suit was filed in February 2013, alleging the same default language in the first complaint. Id. The second suit was voluntarily dismissed in April 2013. Id. A third suit was filed in April 2014, again alleging the same default language in the first complaint. Id. Citing Bartram, the First District affirmed the trial court’s denial of the res judicata defense, reasoning that the defense did not apply “because the open-ended series of defaults included different- missed payments at issue in each suit.” Id. at 444. Likewise, relying on Bar-tram, the First District affirmed the denial of the statute of limitations defense, concluding “each missed payment constituted a new default.” Id. at 445. We note that in a footnote, the First District acknowledged that it did not address “[t]he effect of the passage of time, if any, upon the amount recoverable via foreclosure judgment when the initial default in a continuous series of defaults occurred more than five years before the filing of the complaint,” because the issue was not addressed in the trial court or on appeal. Id. at 445 n. 4.

We recently reached similar results in Depicciotto v. Nationstar Mortgage LLC, 225 So.3d 390, 2017 WL 3500337 (Fla. 4th DCA Aug. 16, 2017). (holding a foreclosure action was not barred by the statute of limitations where it alleged and proved separate and continuing defaults that fell within the five years preceding the filing of the subsequent suit, and res judicata is not applicable because the subsequent action was predicated upon “subsequent and different defaults,” which presented a “separate and distinct issue”).

Conclusion

Because the trial court dismissed the proceeding below on the grounds of res judicata and the statute of limitations after a prior proceeding was dismissed without prejudice, we hold the trial court erred where the subsequent complaint alleged a continuing default in monthly payments.

The record indicates that the Bank presented a calculation of the amount due under the note and mortgage which did not include defaulted payments and charges which accrued more than five years before the last suit was filed. We remand the case for the trial court to vacate the order of dismissal and to enter a judgment of foreclosure consistent with this opinion. If necessary, the trial court may take further evidence on the appropriate amount of the judgment.

Reversed and Remanded

Taylor and May, JJ., concur.


author: Per Curiam.

text:
    Michael VENABLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4343
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2017]

      Michael Venable, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Michael Venable appeals the denial of an amended rule 3.850 motion as untimely filed. On February 11, 2015, he timely filed his original rule 3.850 motion raising two claims. On May 11, 2015, the trial court denied the original motion without prejudice for appellant to file an amended motion with a proper oath and to correct the date in the certificate of service. The order did not set a specific time for him to refile. Appellant filed his amended motion less than 30 days later, correcting the deficiencies and raising an additional claim. See Fla. R. Crim. P. 3.850(e). The trial court denied the amended motion as time-barred.

The first two claims relate back to the original motion, which was timely filed. In response to this Court’s order to show cause, the State agrees that these two claims should be remanded for consideration by the trial court. The third claim does not relate back to the original motion, and it was not timely filed within the two-year time limit for rule 3.850(b) motions.

Accordingly, the trial court’s order is reversed in part. Denial of the third claim is affirmed, and the case is remanded for the trial court to consider the first two claims made in appellant’s June 3, 2015 amended motion on the merits. See Rico v. State, 71 So.3d 245 (Fla. 4th DCA 2011).

Affirmed in Part, Reversed and Remanded in Part.

Gross, Taylor and Forst, JJ., concur.


text:
    James THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4071
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2017]
    James Thomas, Lauderhill, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. Rogers v. State, 223 So.3d 281 (Fla. 4th DCA 2017).

Gerber, C.J., Gross and May, JJ., concur.


text:
    Shirley M. HARVEY, Appellant, v. SAXON MORTGAGE SERVICES, INC., Appellee.
    No. 4D16-3877
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2017]
    Shirley M. Harvey, Davie, pro se.
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller, Akerman LLP, Ft. Lauderdale, and Celia C. Falzone of Akerman LLP, Jacksonville, for appel-lee.
   Per Curiam.

Affirmed. See Venter v. State, 901 So.2d 898 (Fla. 4th DCA 2005).

Warner, Damoorgian and Levine, concur.


author: Buchanan, Laurie E., Associate Judge.

text:
    Connor PERKINS, Appellant, v. Treneka SIMMONDS, Appellee.
    No. 4D16-3502
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2017]

      Nancy A. Hass of Nancy A. Hass, P.A., Hollywood, for appellant.
    Victor H. Waite of Law Office of Victor H. Waite, P.A., Hollywood, for appellee.
   Buchanan, Laurie E., Associate Judge.

Appellant, Connor Perkins, the biological father of C.P. (“the Child”), appeals the trial court’s order dismissing his Petition to Establish Paternity with prejudice on the grounds that the Child was born into an intact marriage of the mother to another man. Appellant argues that the court erred in finding that he lacked standing to bring the petition based on the facts of the case. Alternatively, he asserts that section 742.011 of the Florida Statutes (2015) violates the constitutional guarantee to equal protection. We decline to address Appellant’s equal protection argument at-, this juncture, but find merit to his standing argument. Therefore, we reverse and remand for further proceedings as outlined below.

In February of 2013, Appellee, Treneka Simmonds (“the Mother”)-, gave birth to the Child. The Mother declined to provide paternal information on the Child’s birth certificate, but the Child was given Appellant’s last name. DNA tests confirm that Appellant is the Child’s biological father.

In September of 2015, Appellant filed a Petition to Establish Paternity, .Child Support and for Other Relief. The Mother moved to dismiss Appellant’s petition, alleging that Appellant did not have standing to .pursue paternity because the Mother was married to Appellee, Shaquan Ferguson (“Husband”), before she gave birth to the Child and the marriage remained intact. Appellant responded that he was not aware that the Mother was married.

The court conducted an evidentiary hearing on the Mother’s motion to dismiss wherein the Mother, Husband, and Appellant testified. Briefly stated, Appellant testified that he was a fixture in the 'Child’s life from birth on. The Mother, in turn, testified that Appellant was an absentee father and her Husband- testified that he raised the Child as his own. Considering the evidence presented at the hearing, the court issued an order wherein it found the Mother’s testimony “generally not credible.” The court also rejected the testimony of Husband, noting that the Mother and Husband lived in different states..-The court gave credence to Appellant’s testimony, finding that Appellant was at the hospital when the Child was born and raised the Child .with the Mother. Specifically, the court found that Appellant took the Child to doctor’s appointments, enrolled the Child in daycare, voluntarily paid child support, and that the Child calls Appellant “daddy.” The court also found that Appellant had no idea that there was,'an intact marriage when the Child was born as the Mother told Appellant she married for immigration purposes and was getting a divorce.

Despite the foregoing findings, the Court concluded:

The facts strongly favor the [Appellant] having some involvement in the child’s life. However, the law requires this Court to do, something else. Perhaps there needs to be some movement in the law. However, it needs to come from a higher Court or from the Legislature. The function of this Court is to follow and uphold the law as this Court understands it.
“A putative father has no right to establish paternity of a child who was born into an intact marriage, when the married woman and her husband object.” Johnson v. Ruby, 771 So.2d 1275, 1275-76 (Fla. 4th DCA 2000). No exceptions fall under the facts of this case as presented to the court.

Appellant argues that the court’s ultimate legal conclusion was incorrect, and we agree.

Chapter 742 of the Florida Statutes governs the determination of parentage. Section 742.011 provides the following basis for the court’s jurisdiction over the parties:

Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.

§ 742.011, Fla. Stat. (2015) (emphasis added).

The law presumes that the husband of the biological mother of a child is the child’s legal father. J.T.J. v. N.H., 84 So.3d 1176, 1179 (Fla. 4th DCA 2012). “ ‘This presumption is one of the strongest rebuttable presumptions known to law and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.’ ” Id. (quoting G.T. v. Adoption of A.E.T., 725 So.2d 404, 410 (Fla. 4th DCA 1999)). Because of the strength of this presumption, many courts have held that “a putative father has no right to seek to establish paternity of a child who was born into an intact marriage when the married woman and her husband object.” Johnson v. Ruby, 771 So.2d 1275, 1275-76 (Fla. 4th DCA 2000); see also Tijerino v. Estrella, 843 So.2d 984, 985 (Fla. 3d DCA 2003). The facts in Johnson did not call for an inquiry into the relationship between the child and the putative father, because in Johnson the child was not yet born at the time the putative father filed his petition to establish paternity. Id. The First District has gone so far as to suggest that the presumption of legitimacy may never be rebutted. Slowinski v. Sweeney, 64 So.3d 128, 129 (Fla. 1st DCA 2011). This Court, however, has reaffirmed that the presumption of legitimacy afforded to a child born within an intact marriage is exactly that: a presumption. Thus, the presumption of legitimacy may be rebutted in certain, rare circumstances.

In the most recent opinion on the subject, M.L. v. Department of Children and Families, this Court wrote “to clarify” that:

[W]hile a biological father who is a stranger to an existing marriage into which a child is born has extremely limited rights, his ability to establish his paternity is not left entirely to the husband’s “whim.” ... [A] biological father may seek to establish his paternity, even when both the mother and husband object, if “common sense and reason are outraged” by applying the marital presumption to bar such an action.

227 So.3d 142, 2017 WL 1718807 (Fla. 4th DCA May 3, 2017), (internal citations omitted).

An example of when the application of the presumption of legitimacy outraged common sense and logic can be found in Lander v. Smith, 906 So.2d 1130 (Fla. 4th DCA 2005). There, the biological father of a child conceived with an otherwise married woman petitioned to establish his paternity of the child. Id. at 1131. At the time she conceived the child, the mother was separated from her husband and told the biological father that she was getting a divorce. Id. at 1132. It was uncontested that the biological father was indeed the child’s father, and the child was given the biological father’s last name. Id. at 1131. Additionally, the biological father alleged that he “provided financial support to [the mother] before [the child’s] birth, provided financial support to pay for the expenses of [the child’s] birth and his care, paid child support to [the mother], and developed a relationship with [the child].” Id. Nonetheless, the mother and her husband contested the biological father’s petition, and the trial court dismissed the petition, ruling that the biological father lacked standing to pursue paternity because of the presumption of legitimacy afforded to children born during an intact marriage. Id. at 1132.

We reversed the court’s ruling on appeal, holding that “the presumption of legitimacy [did] not bar a paternity action under the factual circumstances presented” and remanded for additional proceedings for the court to consider the best interests of the child. Id. at 1135. In doing so, we reasoned:

This case rests at the intersection of paternity and legitimacy where there exists a natural tension between reason and emotion, law and social consciousness, and the presumption of legitimacy and the best interests of a child in a modern world characterized by family structures of endless varieties and mores in constant flux. We are mindful of the presumption of legitimacy and the importance that it serves for children who would otherwise face uncertainty in their family lives. [The child] is not one of these children. For [the child], it cannot be said that strictly applying the presumption of legitimacy is irrefutably in his best interests where it is uncontested that [the petitioner] is his biological father and where [the petitioner] is willing to assume that role in [the child’s] life. This is especially so in light of the lack of evidence that [the husband] has played any paternal role in [the child’s] life. For [the child] it is likely that strict adherence to the presumption of legitimacy could operate to thrust upon him the very uncertainty that it is intended to avoid.

Id. at 1134.

This case is on all fours with Lander. Like in Lander, it is uncontested that Appellant is the biological father and that the Child was given Appellant’s last name. Also like in Lander, Appellant alleged that the Mother represented she was getting or was divorced when she had the Child. Additionally, Appellant also established that he financially supported the Child. Most importantly, as was the case in Lander, Appellant’s evidence established that Appellant had a strong-parent/child relationship with the Child and was committed to continuing the relationship. Under these circumstances, it is not in the Child’s best interest to apply the presumption of legitimacy at the cost of the Child’s established relationship with her father. Accordingly, consistent with Lander, we reverse the trial court’s order of dismissal of Appellant’s paternity action and remand for further proceedings.

Reversed and remanded.

Warner and Levine, JJ., concur.

      . The Slowinski court based its decision on the Fifth District’s decision in G.F.C. v. S.G., 686 So.2d 1382, 1385 (Fla. 5th DCA 1997), wherein the court held that chapter 742 does not allow a man "who declares himself to be the father of a child bom to an intact marriage” to sue for paternity. However, the G.F.C. court recognized that there may be an exception to this rule in "circumstances where there is a claim of a developed relationship between the putative father and the child.” Id. In a footnote, the Slowinski court noted the potential exception, but outright rejected it, writing it off as a "hypothetical” which "has largely been discussed in passing, and often in a denigrating manner.” 64 So.3d at 130 n.l. The Slowinski court apparently failed to note the holding of this Court in Lander v. Smith, 906 So.2d 1130, 1134 (Fla. 4th DCA 2005), nor did it realize that post-G.F.C., the Fifth District has not only recognized, but applied the exception. Fernandez v. Fernandez, 857 So.2d 997, 999 (Fla. 5th DCA 2003).


text:
    Dan WINCOR, Appellant, v. Vella POTASH, Appellee.
    No. 4D16-4351
    District Court of Appeal of Florida, Fourth District.
    [October 11, 2017]
    Thomas Erskine Ice of Ice Appellate, Lake Worth, for appellant.
    Oscar A, Gomez of EPGD Business Law, Coral Gables, for appellee.
   Per Curiam.

ON MOTION FOR REHEARING

We grant the motion, for rehearing, withdraw our prior opinion, and substitute this opinion in its place.

The defendant appeals a non-final order determining the jurisdiction of the person, which- -was entered after the defendant filed his Second Amended Motion to Quash Service. He makes several arguments. We find merit in only one of them. We affirm in part, reverse, in part, and remand the case to the trial court.

The plaintiff filed a second amended complaint that alleged the defendant had taken possession of the plaintiffs- real property, had denied her access to the property, and .has refused to vacate the property. The second amended complaint pleaded counts for unlawful detainer, civil theft and exploitation, fraud, unlawful filing of false, documents, undue .influence, and unjust enrichment. The plaintiff served, the defendant by posting a copy of the summons and complaint on the property, pursuant to -section 82.061, Florida Statutes (2016). That statute provides for posted service for unlawful, detainer actions.

In his Second Amended Motion to Quash, the defendant argued among other things- that the posting was insufficient to obtain service over him. Alternatively, he argued that even if posted service was effective for the unlawful detainer count, it was insufficient to obtain jurisdiction over him for the remaining counts of the complaint that sought other relief, including monetary damages. He cited Springbrook Commons, Ltd. v. Brown, 761 So.2d 1192, 1194 (Fla. 4th DCA 2000) (“Service by posting is adequate to determine interest in the property but is not sufficient to obtain personal jurisdiction over the defendants for the purpose of entering a money judgment, which may be enforced against other assets.”).

The trial court denied the motion, and ordered the defendant to answer the entire complaint. From that order, the defendant has now appealed.

We affirm the order to the extent that it denied the motion to quash service for the unlawful detainer count. The court correctly found that service was properly made in accordance with the statute. We reverse the order to the extent that it- denied the motion to quash service with respect to the remaining counts. On remand, the trial court shall grant the motion to quash service of process as to all counts except the unlawful detainer count.

Affirmed in part; reversed in part and remanded.

Warner, May and Levine, JJ., concur.


text:
    Tyrone GLADON, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3810
    District Court of Appeal of Florida, Fourth District.
    [ August 16, 2017 ]

      Tyrone Gladon, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Tyrone Gladon appeals the denial of a motion to correct illegal sentence. He claims that a 99-year sentence for non-homicide offenses he committed as a juvenile violates Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and subsequent Florida Supreme Court decisions interpreting Graham. The trial court denied the motion based on the state’s response, which contended relief was unavailable under rule 3.800(a), where an evidentiary hearing was needed to resolve a factual dispute regarding appellant’s birthdate. We reverse and remand for further proceedings because the trial court should have treated appellant’s sworn motion as a timely rule 3.850(b)(2) motion.'

In its response below, the State disputed appellant’s juvenile status, given his date of birth as shown on the Department of Corrections website. While appellant claimed he was 17 years old at the time of the offenses, the State asserted he was 22 years old. Even assuming appellant was a juvenile, the State argued that appellant’s 99-year sentence was not unconstitutional because it was not the “functional equivalent” of a life sentence where appellant’s eligibility for parole and gain time brought his release date within his natural lifetime.

This reasoning has since been rejected by the Florida Supreme Court, because the constitutionally relevant inquiry for a juvenile’s sentence is whether it provides a meaningful opportunity for early release based on maturation and rehabilitation; the length of the sentence alone is not dispositive. See Johnson v. State, 215 So.3d 1237, 1240 (Fla. 2017) (“Graham prohibits juvenile nonhomicide offenders from serving lengthy terms of incarceration without any form of judicial review mechanism.”); Kelsey v. State, 206 So.3d 5, 10-11 (Fla. 2016) (declining to require that a term-of-years sentence be a “de facto life” sentence for Graham to apply).

Furthermore, the Florida Supreme Court has indicated that parole and gain time generally do not satisfy the requirements of Graham because neither avenue of early release is adequately based on a juvenile’s demonstration of maturity and rehabilitation. See Johnson, 215 So.3d at 1237 (recognizing that Graham, as articulated in Henry v. State, 175 So.3d 675 (Fla. 2015), prohibits “a sentence which includes early release that is not based on a demonstration of rehabilitation and maturity” such as gain time); Atwell v. State, 197 So.3d 1040, 1049 (Fla. 2016) (“Parole is, simply put, ‘patently inconsistent with the legislative intent’ as to how to comply with Graham and Miller [v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ].” (citation omitted)).

In the present case, appellant filed his rule 3.800(a) motion, which is sworn under the penalty of perjury, in 2016. “[A] motion filed under rule 3.800(a) may be treated as a motion filed under rule 3.850 where it is in the ‘interest of justice to do so’ and the motion would be timely under rule 3.850.” Johnson v. State, 60 So.3d 1045, 1052 (Fla. 2011) (citation omitted). Although appellant filed his motion outside the two-year window of rule 3.850(b), appellant’s motion asserted he was entitled to relief under Henry and Atwell, which were decided in 2015 and 2016, respectively. See Fla. R. Crim. P. 3.850(b)(2) (providing an exception to the two-year time limit where “the fundamental constitutional right asserted was not established within the [two-year] period ... and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity”).

The United States Supreme Court’s decision in Graham created a new fundamental constitutional right, and courts have applied Graham retroactively. See St. Val v. State, 107 So.3d 553, 554 (Fla. 4th DCA 2013). Because Graham applies retroactively, “Henry’s application of Graham to lengthy term of years sentences should also be given retroactive application,” Williams v. State, 197 So.3d 569, 571 (Fla. 2d DCA 2016).

Accordingly, appellant’s motion was timely filed pursuant to rule 3.850(b)(2). See Marshall v. State, 214 So.3d 776, 777-79 (Fla. 2d DCA 2017) (reversing the denial of a rule 3.850(b)(2) motion, where juvenile non-homicide offender with 99-year sentence filed motion within two years of the decisions in Henry and Atwell).

On remand, the trial court should consider appellant’s motion under rule 3.850(b)(2) and address appellant’s claim in light of the Florida Supreme Court decisions noted above. Assuming the State cannot conclusively refute appellant’s claim with record attachments, the trial court should conduct an evidentiary hearing to resolve the dispute concerning appellant’s birthdate. At a hearing, appellant will bear the burden. Fla. R. Crim. P. 3.850(f)(8)(B) (“At an evidentiary hearing, the defendant shall have the burden of presenting evidence and the burden of proof in support of his or her motion.”).

Finally, we note that appellant is subject to sanctions if the trial court determines that he has brought a frivolous claim or has knowingly or recklessly made false allegations. § 944.279(1), Fla. Stat. (2016). “Postconviction movants should also remain aware that penalties for direct contempt of court or perjury may be imposed when movants are untruthful in postcon-viction proceedings.” Oquendo v. State, 2 So.3d 1001, 1006 (Fla. 4th DCA 2008).

Reversed and Remanded for further proceedings.

Taylor, Damoorgian and Forst, JJ., concur.


author: Taylor, J.

text:
    L.G., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D17-2004
    District Court of Appeal of Florida, Fourth District.
    [ October 11, 2017 ]
    Lori D. Shelby of Law Office of Lori D. Shelby, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee.
   ON CONFESSION OF ERROR

Taylor, J.

L.G., the legal father of a dependent child, appeals an order denying his petition to disestablish paternity under section 742.18, Florida Statutes (2016). L.G. was never married to the mother,, but he acknowledged paternity on the. child’s birth certificate. During the dependency proceedings, L.G. petitioned to disestablish paternity based on newly discovered evidence—namely, a recent DNA test showing that he was not the biological father of the child. However, the trial court denied the petition, ruling that it could not disestablish paternity unless another putative father was willing to “step in” and establish paternity. We accept the Department’s confession of error arid reverse.

The trial court’s ruling was based upon Department of Health and Rehabilitative Services v. Privette, 617 So.2d 305 (Fla. 1993). In Privette, our supreme court held that before a blood test can be ordered to determine paternity in cases where the child is born legitimate, the trial court must find that-the child’s best interests will be better served by the blood test “even if the blood test later proves the child’s factual illegitimacy.” Id. at 307-08. As the supreme court later ■ explained, “Privette addressed a case of contested paternity involving blood tests, and its application is limitéd to those instances where' a child faces the threat of being declared illegitimate, and the ‘legal father’ also faces the .threat of losing parental rights which he seeks to maintain.” Daniel v. Daniel, 695 So.2d 1253, 1255 (Fla. 1997).

In 2006, however, after Privette, the legislature enacted section 742.Í8,' Florida Statutes. See Ch. 2006-265,-§ 1, Laws of Fla.; see also Drouin v. Stuber, 168 So.3d 305, 307 (Fla. 4th DCA 2015) (recognizing the 2006 legislative change). By enacting this statute, “the legislature provided that even after paternity has been established and the father-child relationship has been fostered, there is a mechanism by which a man -may disestablish his paternity and avoid further obligation to support the child.” P.G. v. E.W., 75 So.3d 777, 783 (Fla. 2d DCA 2011).

Here, the trial court erred in ruling that another putative father must be willing to establish paternity before appellant’s petition for disestablishment of paternity could be granted. Section 742.18 contains no such requirement.

As noted above, Privette was decided prior to the enactment of section 742.18. To the extent Privette was not superseded by section 742.18, it has no .application to these facts. A Privette “best interests” inquiry applies only in contested cases where ■a child faces the threat of being declared illegitimate and the legal father also faces the threat of losing parental rights which he seeks to maintain. Neither situation applies here. In the instant case, the child does not face the threat of losing legitimacy (as the child was not born legitimate), and the legal father does not seek to maintain his parental rights.

Accordingly, we reverse the order denying the petition and remand for further proceedings. If the trial court finds on remand that all of the requirements for disestablishing paternity under section 742.18 are satisfied, the trial court shall grant relief on the petition.

Reversed and Remanded.

Gerber, C.J., and Warner, J., concur.


author: PER CURIAM. ■

text:
    O.W., a Child, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2766
    District Court of Appeal of Florida, First District.
    Opinion filed March 15, 2017.

      Andy Thomas, Public Defender, Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo .Bondi, Attorney General, Thomas H. Duffy, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM. ■

In this appeal, O.W. challenges the trial court’s order requiring him to pay $4,915,00 in restitution to the victims of his grand theft, arguing there was insufficieht evidence to support the amount ordered. We agree and reverse for a new hearing.

At the restitution hearing, the victim and owner of the missing jewelry was the only person to testify. She testified that after researching the internet and finding pictures of the missing items (some exact replicas and some similar to the missing jewelry), she took the pictures td a jeweler who then gave her an 'estimate of how much it would cost to replace the items. The owner further testified that she did not place the value on the missing items, but was testifying only as to wh'at the jeweler’s estimate said the- replacement cost of the items would be.

O.W. argues that the owner’s testimony was hearsay ■ and should not have been admitted, leaving the State with no. evidence to support the amount of restitution ordered. We agree. The State bears the burden of proving the amount of restitution with competent, substantial evidence. DJR v. State, 139 So.3d 458 (Fla. 1st DCA 2014). Here', the State failed to meet its burden because the only evidence presented to support the amount , of restitution ordered was the victim’s testimony of what the jeweler estimated the replacement cost of the missing items to be. See Bigelow v. State, 997 So.2d 1249, 1250 (Fla. 5th DCA 2009) (“Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to' such evidence.”). While “[a]n owner of property is generally qualified to testify as to the value of his or her property,” A.G. v. State, 718 So.2d 854, 856 (Fla. 4th DCA 1998), the owner’s testimony of value must be their own opinion or assessment of value, although they may take into consideration other sources to supplement and support their own knowledge of the value of the property. See id. (holding that the owner’s own estimate of value that was “based on what his jeweler and his wife had told him” was sufficient to support the order of restitution); see also Yaun v. State, 898 So.2d 1016 (holding that the owner’s assessments of the value of the stolen items based on her own research was sufficient to support the amount of restitution imposed).

The only evidence to support the amount of restitution imposed in this case was the owner’s testimony, which in turn was based solely on what the jeweler said. We are sympathetic to the victims of stolen property where, as here, the victims performed research and sought help from someone qualified to tell them how much it would cost to replace the missing items. But precedent says a witness’s mere recitation of someone else’s estimation of value is insufficient to support an order of restitution. “On remand, written estimates may ■ suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontested.” Conway v. State, 115 So.3d 1058, 1059 (Fla. 4th DCA 2013) (quoting I.M. v. State, 958 So.2d 1014, 1015 (Fla. 1st DCA 2007)).

REVERSED and REMANDED.

WOLF, RAY, and MAKAR, JJ., CONCUR.