author: Kuntz, J.

text:
    NIAGARA INDUSTRIES, INC. and Rheem Sales Company, Petitioners, v. GIAQUINTO ELECTRIC LLC, a Florida Limited Liability Company, Guardian American Properties, LLC, f/k/a Guardian American Residential Properties of Broward County, LLC, a Florida Limited Liability Company, H20 Plumbing Services, Inc., a Florida Corporation, Fuenmayor & Linda Enterprises, LLC, d/b/a Ace Flood & Inspections, LLC, a Florida Limited Liability Company, Mark Beckerman, individually, and Scott Wesley Frank, Sr., individually, Respondents.
    No. 4D17-1473
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    Diane H. Tutt, Thomas J. McCausland, and Evan Roberts of Conroy Simberg, Hollywood, for Petitioners.
    Daniel M. Schwarz of Cole, Scott & Kissane, P.A., Plantation, for Respondent H20 Plumbing Services, Inc.
    Glen R. Goldsmith of Glen R. Goldsmith, P.A., Miami, for Respondent Giaquinto Electric, LLC.
    Armando P. Rubio of Fields Howell LLP, Miami, for Respondent Guardian American Properties, LLC.
    ON MOTION FOR REHEARING AND/OR CLARIFICATION
   Kuntz, J.

We deny Respondent, H20 Plumbing Services, Inc.'s motion for rehearing, grant the motion for clarification in part, withdraw our prior opinion, and issue this opinion in its place.

In this proceeding, the Petitioners-Niagara Industries, Inc. and Rheem Sales Company-challenge the second prong of the two-part test for disclosure of trade secrets. The issue before us is whether the production of material containing trade secrets was "reasonably necessary." We conclude the circuit court departed from the essential requirements of law when it ordered the Petitioners to disclose their trade secrets, because the party requesting the disclosure failed to present any evidence to establish that the production of the privileged information was reasonably necessary. We therefore quash the order.

Background

Scott Wesley Frank, Sr. purchased a tankless water heater from Rheem Sales Company, and designed by Niagara Industries, Inc. At some point later, Mr. Frank experienced problems with the water heater and hired H20 Plumbing Services, Inc. While Mr. Frank's water heater was being repaired, it exploded, causing Mr. Frank physical injury. As a result of the injuries, he filed a four-count complaint against the Petitioners, asserting claims of negligence and strict liability against both.

During the pendency of Mr. Frank's lawsuit against the Petitioners, the court required them to disclose what they describe as "their confidential and highly confidential documents, including Niagara's trade secrets, relating to the manufacturing and testing of the subject tankless water heater." Pursuant to a protective order that permitted only certain people to view them, the Petitioners disclosed the documents. Testimony indicates the documents were disclosed to a total of four people. The case proceeded to a jury trial. One of the experts permitted to view the documents testified at the trial and, in this case, the circuit court stated that the expert "opined at trial that the product failed in an unreasonably safe manner." However, the parties dispute whether the actual documents were ever presented to the jury. Regardless, prior to the jury returning a verdict, the parties filed a stipulation of dismissal, which the court accepted. At the conclusion of the case, the previously-disclosed documents were returned to the Petitioners.

After the dismissal of the lawsuit against the Petitioners, Mr. Frank filed a new lawsuit against Giaquinto Electric, which he later amended to add claims against Guardian American Properties, LLC, H20 Plumbing Services, Inc., Fuenmayor & Linda Enterprises, LLC, and Mark Beckerman.

Guardian American Properties, LLC, one of the defendants in the second lawsuit, served a notice of production from non-parties and a subpoena duces tecum without deposition, indicating they intended to seek various documents from the Petitioners. Among the documents at issue were those contained in the seventy-ninth category of documents sought, which asked for those documents from Mr. Frank's first lawsuit: "Any and all documents received pursuant to any subpoenas and/or request for copies in the case Scott Wesley Frank v. Niagara Industries, Inc. and Rheem Sales, Case. No. CACE 15-002998 (03)." Later, H20 Plumbing, another defendant in the second lawsuit, served a notice of intent to subpoena similar information.

The Petitioners timely objected to the notices of production and the subpoenas. In their objections, they argued that: the documents contained trade secrets; the water heater's failure was not the result of a defectively-manufactured or defectively-designed product; and that Guardian and H20, the requesting parties, were merely on a "fishing expedition" to escape an incident resulting from its installation of the water heater.

The court held an evidentiary hearing on the Petitioners' objections. The only witness to testify at the hearing was the owner of Niagara Industries, who testified that the release of the trade secrets "would be devastating" to his company. He also answered questions regarding the Petitioners' belief as to the cause of the water heater's explosion. Guardian and H20 relied upon the arguments of its counsel and did not present any testimony or evidence on its behalf.

During the hearing, the court expressed concern that different parties from the two lawsuits would not have access to the same materials. The court drew this concern from the fact that it was "not sure ... why all of the defendants weren't brought in on the first trial." With that in mind, at the conclusion of the hearing the court orally ruled as follows:

THE COURT: We're going to take it in some sort of baby steps.
First, the Court find[s] that it is indeed a trade secret.
Second, the Court finds that there's a reasonable necessity for [production] of some of the items because there is testimony that the product failed; there is no ability to test the specific heater in question. This is the exact case and issues of the product litigated before. That the Court finds really no other way regarding it that the parties that could have been even if not, should have been sued in the first trial would have had access to the information at that time. And it places all of the parties in a fair position to move forward.

The court subsequently issued a written order, specifying its previously stated reasons for the required production. The Petitioners now petition this Court for a writ of certiorari.

Analysis

Subject to certain limitations, trade secrets are privileged from disclosure. § 90.506, Fla. Stat. (2017). An improper order piercing this privilege and requiring the disclosure of trade secrets may cause irreparable harm to the disclosing party and, in some cases, a person not even aware of the proceeding. Because the protected information will be known once disclosed, the harm sustained cannot be remedied on appeal. Therefore, our certiorari jurisdiction is properly invoked when a circuit court improperly requires the disclosure of trade secrets. Cooper Tire & Rubber Co. v. Cabrera , 112 So.3d 731, 733 (Fla. 3d DCA 2013) (citing Grooms v. Distinctive Cabinet Designs, Inc. , 846 So.2d 652 (Fla. 2d DCA 2003) ).

When a party asserts that material is protected by the trade-secrets privilege, the court must conduct a two-step inquiry. First, the court must determine if the documents at issue are, in fact, trade secrets. Second, if the court concludes the documents are trade secrets, the burden shifts to the requesting party to show that the disclosure is reasonably necessary. See, e.g. , Am. Exp. Travel Related Services, Inc. v. Cruz , 761 So.2d 1206, 1208 (Fla. 4th DCA 2000) ; Sea Coast Fire, Inc. v. Triangle Fire, Inc. , 170 So.3d 804, 809 (Fla. 3d DCA 2014).

Here, the court found the documents at issue were trade secrets. Therefore, the burden shifted to Guardian and H20 to establish that disclosure was reasonably necessary. However, the Petitioners were the only ones to present testimony or evidence, and their witness testified as to the devastating impact on its business if the documents were to be released and also provided the Petitioners' theory on the cause of the explosion.

The court departed from the essential requirements of the law when it compelled the production of the privileged documents based upon the two grounds which it stated. The court's reliance on the destruction of the specific tankless water heater at issue, without more, is insufficient. Guardian and H20 did not present any evidence to support the conclusion that the information lost due to the destruction of the specific tankless water heater could only be remedied through access to trade secrets. They did not present evidence that the specific tankless water heater was necessary nor did they present evidence the purportedly necessary information could not be obtained by other means. If the mere destruction of a product is sufficient to breach the privilege, the trade-secret privilege could be breached any time a lawsuit involves a product or item that was destroyed. While it is possible the destruction of an actual item could justify requiring the disclosure of trade secrets, a party must present evidence or testimony to support that conclusion. Here, they did not.

It is also insufficient to base the disclosure of the privileged documents on the prior lawsuit. The court was clearly concerned with the fact that the plaintiff filed two separate lawsuits, stating: (i) "I still am not sure I completely understand why all of the defendants weren't brought in on the first trial"; (ii) "but had they all been in this first case"; (iii) "the Court finds really no other way regarding it that the parties that could have been even if not, should have been sued in the first trial"; and (iv) "And again, if all parties had been together at the first case."

We agree it may have been more efficient had the plaintiff chosen to bring all his claims in one lawsuit. But, the mere existence of the first lawsuit, without more, is not sufficient to invade the trade-secret privilege. Further, the Petitioners-defendants in the first lawsuit, but non-parties in the proceedings below-cannot be blamed for a plaintiff's litigation strategy and choice of defendants. Recognizing that fact, the court expounded on its concern and stated "I just don't understand why phase B of the same case and the same facts shouldn't have the same evidence." However, again, the Petitioners cannot be faulted for this point. And, no party to this second lawsuit has the benefit of introducing evidence derived from the trade secrets at issue in the first lawsuit. Those materials were returned and the counsel that viewed them, under penalty of violating the court's order in the first lawsuit, cannot disclose the contents.

Finally, we note that in its motion for rehearing, H20 states that we overlooked the circuit court's written finding that, in the first trial, "Plaintiff's liability expert, Edward Brill, P.E., opined at trial that the product failed in an unreasonably safe manner, irrespective of" the plumber's actions. H20 argues that the expert in the first lawsuit had access to these protected documents prior to his testimony and "[i]t follows, therefore, that H20 and the defendants' experts need the same information to likewise opine that Niagara and Rheem bear all or some of the fault." A finding that the expert in the first trial opined regarding fault does not indicate how that expert arrived at that conclusion and it is not sufficient, on its own, to support a finding that the documents are necessary for a different expert to arrive at an independent opinion. At the hearing before the circuit court, counsel for the Petitioners argued that "[the Respondents] need to bring an expert in that says I've taken one of these apart, I've looked at whatever degree of Brill's testimony the[y] have, and I can't figure out without looking at X, Y, and Z." Should the Respondents do so to the satisfaction of the circuit court, nothing in this opinion would preclude the court from addressing a renewed motion to compel.

Conclusion

A party cannot obtain documents containing privileged trade secrets without establishing a reasonable necessity for breaching the privilege. Here, the court departed from the essential requirements of the law when it found the requesting party had established a reasonable necessity to breach the privilege, even though the requesting party had failed to present any evidence. We do not hold that a requesting party must always present evidence. However, by failing to do so they are at risk of being unable to overcome the testimony of the movant.

Once the burden shifts to the requesting party, the court weighs the need for producing the document against protecting its confidentiality. Here, the Petitioners' witness testified that disclosure would be devastating and also provided the Petitioners' theory on the cause of the explosion. The requesting party did not overcome this testimony or establish a specific need for the protected documents.

Petition granted; order quashed .

Gross and Taylor, JJ., concur.

      If the court finds the requesting party has shown the disclosure of privileged material is reasonably necessary, the court is required to make written findings and take adequate measures to protect the disclosing party, the parties to the case, and the interests of justice. See § 90.506, Fla. Stat. (2017).

      The court's subsequent written order included four grounds to support its conclusion. However, the two additional findings in support can generally be grouped with the two findings provided at the hearing. Therefore, for clarity, we reference two reasons throughout this opinion.

      We also note the court's mischaracterization of this second lawsuit. The court's reference to "Phase B" is inaccurate, as the two suits were separate, distinct lawsuits.

      We assume a renewed motion would be based upon facts and information not presently available to the movants. Further, we note the Respondents did not have access to the entirety of the transcript from the first trial. It appears the circuit court directed the Respondents be given access to that transcript and that ruling was not a part of this original proceeding.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Javoris Denard PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1710
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    Melanie Malave, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed .

Gerber, C.J., and Kuntz, J., concur.

Gross, J., concurs specially with opinion.

Gross, J., concurring specially.

I concur in the affirmance of the burglary and grand theft convictions.

I write only to note that there may have been ineffective assistance of both his trial and appellate counsel.

No witnesses or physical evidence placed appellant at the victim's home. The primary evidence against him was his possession of recently stolen property-the victim's computer was left in a rental car rented by appellant.

A customer service representative from the rental car company testified that a porter found the tablet computer while cleaning out a returned rental car. The representative identified the car based on some unidentified internal records which were not introduced at trial. The trial court overruled trial counsel's hearsay objection to this testimony. The porter did not testify at trial. This was not a small point-the State needed to link appellant to the car where the tablet was found to obtain a conviction.

On appeal, appellate counsel did not pursue the hearsay objection, which appears to have had some merit. As a result, the hearsay objection was waived. See Peterson v. State , 94 So.3d 514, 527 (Fla. 2012). Instead, counsel briefed the issue of a confrontation clause violation, which was not an objection raised by trial counsel, so the argument was unpreserved. See § 90.104, Fla. Stat. (2017).

Trial counsel's potential strategic errors involve common scenarios in criminal cases. Appellant had nine prior felony convictions. To avoid impeachment by prior convictions, defense counsel called appellant's girlfriend as an alibi witness. She said that appellant was with her at the time the burglary was committed. In addition, under questioning by the defense attorney, she testified that appellant told her that he rented a car for a friend, who happened to be deceased at the time of trial . This italicized self-serving hearsay statement, in which appellant was the declarant, opened the door to impeachment of the statement by appellant's nine felony convictions. See § 90.806(1), Fla. Stat. (2017) ; Gonzalez v. State , 948 So.2d 877, 878 (Fla. 4th DCA 2007). Another questionable situation is the absence of an authentication objection to the telephone conversations during a detective's spoofed phone calls to the number listed on the car rental contract. See C. Ehrhardt, Florida Evidence § 901.6 (2012 ed.). Whether all of this was sound trial strategy can be explored at a hearing under Florida Rule of Criminal Procedure 3.850.


text:
    The WATERVIEW TOWERS CONDOMINIUM ASSOCIATION, INC., a Florida corporation not-for-profit, Laura Bennett, Helen Bossman, and Thomas J. O'Neill, individually, Appellants, v. CITY OF WEST PALM BEACH, a Florida Municipal Corporation, and Palm Harbor Hotel, LLC, a foreign limited liability company, Appellees.
    No. 4D17-1683
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, Robert Sweetapple of Sweetapple, Broeker & Varkas, PL, Boca Raton, and John R. Eubanks, Jr. of Breton, Lynch, Eubanks & Suarez-Murias, P.A., West Palm Beach, for appellants.
    K. Denise Haire, Office of the City Attorney, West Palm Beach, for appellee, City of West Palm Beach.
    Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, and Joseph Ianno, Jr. and Henry S. Wulf of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee, Palm Harbor Hotel, LLC.
   Per Curiam.

The issue presented in this case is the award of attorney's fees and costs to Palm Harbor Hotel. The underlying final judgment was reversed on appeal. See Waterview Towers v. City of W. Palm Beach , 232 So.3d 401 (Fla. 4th DCA 2017). An award of attorney's fees and costs predicated on a reversed or vacated final judgment must also be reversed. See Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1096 (Fla. 4th DCA 2006) ; Marty v. Bainter , 727 So.2d 1124, 1125 (Fla. 1st DCA 1999).

Therefore, we reverse and remand to the trial court for vacation of the order awarding attorney's fees and costs.

Gross, Ciklin and Kuntz, JJ., concur.


author: Gross, J.

text:
    I.B. and J.S., Appellants, v. In re: ADOPTION OF Z.E.S., a child, Appellee.
    No. 4D17-1730
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    John F. Schutz of John F. Schutz, P.L., West Palm Beach, for appellant, I.B.
    Amy U. Hickman of Hausmann & Hickman, P.A., Boynton Beach, for appellant, J.S.
    No brief filed for appellee.
   Gross, J.

This is an appeal from an order denying a petition for adoption. While all of the parties appear to have the child's best interests at heart, we affirm on a pure question of law-the petition was legally insufficient under the Florida Adoption Act, sections 63.012 et seq. , Florida Statutes (2016).

I.B. is the maternal grandmother of Z.E.S. (the "child"). She filed a petition under the Adoption Act to terminate her daughter's parental rights and adopt the child. I.B.'s husband, the child's maternal grandfather, consented to the adoption, but did not seek to adopt the child. The child's mother also consented to the termination of her parental rights and the adoption by I.B.

J.S. is the child's biological and legal father; he is not married to the child's mother. He joined in the petition to terminate the mother's parental rights and for the maternal grandmother to adopt the child. He did not consent to the termination of his own parental rights.

The petition was amended twice and ultimately came before the circuit court as a "Petition for the Termination of Parental Rights and Petition for Second Parent Relative Adoption." If the circuit court granted the petition, the father and maternal grandmother would be the child's parents.

The circuit court held an evidentiary hearing and listened to testimony from the father and both maternal grandparents. All of the witnesses testified that the father had been sharing parental responsibility with the maternal grandparents for two years due to the mother's alcoholism and that the child was thriving under this de facto co-parenting arrangement.

Shortly after the hearing, the court denied the petition, finding that the entry of judgment of adoption would sever the father's parental rights under section 63.172(1), Florida Statutes (2016). The cited subsection provides:

(1) A judgment of adoption ... has the following effect:
(a) It relieves the birth parents of the adopted person, except a birth parent who is a petitioner or who is married to a petitioner, of all parental rights and responsibilities.
(b) It terminates all legal relationships between the adopted person and the adopted person's relatives, including the birth parents, except a birth parent who is a petitioner or who is married to a petitioner, so that the adopted person thereafter is a stranger to his or her former relatives for all purposes ....
(c) ... [I]t creates the relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a blood descendant of the petitioner born within wedlock. ...

Id. Appellants argue that subparts (a) and (b) are plain and unambiguous and that the father should retain his parental rights because as "a petitioner," he fits within the statutory exception. We find that, while the father joined the petition, he was not "a petitioner" within the meaning of the Adoption Act because he did not seek to adopt the child.

This is a case of statutory interpretation. While the subparts relied on by the Appellants appear unambiguous when viewed in isolation, "[i]t is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole." Forsythe v. Longboat Key Beach Erosion Control Dist. , 604 So.2d 452, 455 (Fla. 1992). The statutory scheme at issue is the Adoption Act and because adoption is "wholly statutory in nature," it "can be decreed only in accordance with the statute." Korbin v. Ginsberg , 232 So.2d 417, 418 (Fla. 4th DCA 1970).

Adoption is defined as:

[T]he act of creating the legal relationship between parent and child where it did not exist , thereby declaring the child to be legally the child of the adoptive parents and their heir at law and entitled to all the rights and privileges and subject to all the obligations of a child born to such adoptive parents in lawful wedlock.

§ 63.032(2), Fla. Stat. (2016) (emphasis added).

An adoption proceeding begins with the filing of a petition, meaning "the filing of a verified, truthful application for adoption." Rodriguez v. Adoption of Rodriguez , 219 So.3d 944, 946 (Fla. 3d DCA 2017). Section 63.112, Florida Statutes (2016), sets forth an explicit list of those items which must be included in the petition. Among the requirements, the petition "shall be signed and verified by the petitioner and ... shall state ... [t ]he reasons why the petitioner desires to adopt the person ." § 63.112(1)(i), Fla. Stat. (emphasis added).

Here, the father was named as "a petitioner" to the petition for adoption even though he did not "desire[ ] to adopt" the child, and a "legal relationship" already did "exist." This was an apparent attempt to avoid the statutory effect of a judgment of adoption which is to terminate a birth parent's parental rights "except a birth parent who is a petitioner or who is married to a petitioner." See § 63.172(1)(a)-(b) (emphasis added). However, calling the father "a petitioner" was a misnomer because the Adoption Act does not allow a parent, whose parental rights are intact, to petition to adopt his or her own child. See § 63.032(2) (defining adoption as the act of creating the legal relationship between parent and child where it did not exist); § 63.172(1)(c) (stating that the effect of a judgment of adoption is to "create [ ] the relationship between the adopted person and the petitioner ... that would have existed if the adopted person were a blood descendant of the petitioner born within wedlock") (emphasis added); § 63.112(1)(i) (requiring a verified and truthful petition in which the petitioner states the reasons why he or she "desires to adopt the person.") (emphasis added).

Appellants cite In re Adoption of D.P.P. , 158 So.3d 633 (Fla. 5th DCA 2014), as a case that allowed a parent to be a petitioner and to retain her parental rights following the child's adoption by a non-spouse. We find that D.P.P. is factually distinguishable and therefore unpersuasive.

In D.P.P. , a baby was born to a same-sex couple, and they filed a joint petition for stepparent adoption by the birth mother's partner. The trial court granted the adoption petition and entered a final judgment of adoption. Id. at 636. A year later, the birth mother sought to void the adoption on the ground that her former partner "was not qualified to seek a step-parent adoption." Id. The trial court vacated the adoption, finding "G.P. was not a step-parent or an unmarried adult seeking to adopt following the termination of C.P.'s parental rights." Id. "The [trial] court concluded that a petition for adoption filed by two unmarried adults fails to invoke the subject matter jurisdiction of the circuit court, and thus, the final judgment of adoption was void." Id.

D.P.P. is not directly on point because the appellate court, in reversing the trial court, focused on the trial court's determination that it lacked subject matter jurisdiction. It is cited here because the Fifth DCA, in dicta , found that the adoption by the unmarried couple "did not run afoul of the court's power to enter judgments of adoption" and that "the adoption decree was consistent with the intent of the Legislature set forth in section 63.022, Florida Statutes (2012)." Id. at 638 n.2.

While D.P.P. implicitly approves of a parent petitioning with a non-spouse to adopt her own child, that case cannot be stretched to cover the adoption proposed in this case because the petitioners here are not in a committed relationship so the proposed adoption is not "consistent with the intent of the Legislature." Id. The petitioners in D.P.P. were in a "committed" relationship at the time of the adoption and the child was born into a two-parent home where the parents were in a familial relationship with each other and the child. Sanctioning the adoption in D.P.P. was essentially sanctioning adoption by a stepparent because at the time, same-sex marriage was illegal in Florida. The Legislature has clearly stated its preference that an adoption result in "adoptive parents" raising the adoptee as if the child were "born to such adoptive parents in lawful wedlock." § 63.032(2).

We find that the petitioners in D.P.P. (the same-sex couple) are distinguishable from the petitioners in this case (the father and maternal grandmother). Here, the proposed parents are not married and are not in a "committed relationship" as that term is commonly understood. Here, the adoption will result in the child having two parents who live completely separate lives in separate households with their only connection being shared custody and financial obligation for the child. Unlike the adoption in D.P.P. , we do not believe the proposed adoption in this case is "consistent with the intent of the Legislature."

Appellants also cite M.D.C. v. B.N.M.J. , 117 So.3d 489 (Fla. 1st DCA 2013), as authority for the proposition that second-parent adoption by a non-spouse is sanctioned by Florida courts. In M.D.C. , the father's parental rights were terminated when the child was adopted by her stepfather. Years later, when the stepfather and the mother divorced, the birth father petitioned to adopt her. Id. at 490.

The trial court found that the end result would be that the child's legal parents would also be her biological parents, a circumstance supported by public policy. Id. However, the trial court found that the adoption was not authorized by section 63.042(2)(c), Florida Statutes (2012) (governing when a married person can adopt without his spouse joining as a petitioner), because the statute "did not envision the adoption contemplated here." Id.

The First DCA reversed, finding the "failure of M.D.C.'s spouse to join in the adoption is not fatal." Id. at 491. The court found the father qualified as an adoptive parent under the statute and that the trial court should have allowed the father to "proceed to an evidentiary hearing in which he would be given the opportunity either to show good cause why his present spouse did not join the adoption petition or to show that the adoption is in B.N.M.J.'s best interest." Id.

Because both the trial and appellate courts focused on whether the father was a person "who may adopt" under section 63.042(2)(c), M.D.C. is not directly on point. The case is cited by Appellants because the new family proposed in M.D.C. is similar to the new family proposed here-a married person who is otherwise qualified to adopt, petitioning to adopt and co-parent with the child's natural parent who is not the spouse of the petitioner.

We find, however, that like D.P.P. , the characteristics of the petitioners distinguish M.D.C. from the case at bar. The father in M.D.C. was properly named as a petitioner because his parental rights had previously been terminated. He was therefore permitted by statute as a "birth parent" (not a "parent") to join the petition as a petitioner. The father here is already a parent and cannot be a petitioner for the reasons set forth above.

In addition, the trial court in M.D.C. found that the end result of the proposed adoption (that the child's biological parents would also be her legal parents) was supported by public policy. In contrast, it is unclear whether public policy would sanction the end result in this case, where the child's father and the child's maternal grandmother would become co-parents. See In re Adoption of M.R.D. , 636 Pa. 509, 145 A.3d 1117 (2016) (prohibiting the adoption of a child by her maternal grandfather who was joined in the petition by her mother); In re Adoption of Child by Nathan S. , 396 N.J.Super. 378, 934 A.2d 64, 65 (N.J. Super. Ct. Ch. Div. 2006) (same, finding the legislature did not intend for two persons to adopt outside of marriage or partnership, and therefore "a married grandfather cannot become a co-parent with his daughter by adopting his granddaughter when the biological father is alive."); but see Adoption of a Child Whose First Name is Chan , 37 Misc.3d 358, 950 N.Y.S.2d 245 (N.Y. Surr. Ct. 2012) (adoption by two unmarried people, not in a relationship, was not barred by statute and petitioners were permitted to establish that adoption of a Cambodian child they brought to New York and raised was in the child's best interests).

While a myopic reading of subparagraphs 63.172(1)(a) and (b) allows a birth parent to be "a petitioner" to an adoption proceeding and thereby retain his parental rights, the Adoption Act as a whole precludes an individual with parental rights at the time of the petition from joining in an adoption proceeding as "a petitioner" because a petitioner is one seeking to adopt the child and a parent (whose rights are intact) cannot adopt his own child.

We recognize that "[t]he legal parameters and definitions of parents, marriage, and family have undergone major changes in the past several decades ...." D.M.T. v. T.M.H. , 129 So.3d 320, 337 (Fla. 2013). We also recognize that the parenting arrangement proposed in this case may be in this child's best interests. However, the right to adopt a person in Florida is a privilege bestowed by the Legislature. For the court to entertain the petition, the proposed familial arrangement must be within the parameters allowed by the Adoption Act. Under the current version of the Act, this father, whose parental rights are intact, cannot petition to adopt his own child.

For these reasons, we affirm the trial court's order and remand for dismissal of the petition.

Forst and Kuntz, JJ., concur.


text:
    Gani BROWN, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF LICENSING, Appellee.
    No. 4D17-3488
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Gani Brown, Hallandale Beach, pro se.
    John B. Fricke, Jr., Senior Attorney, Department of Agriculture and Consumer Services, Division of Licensing, Tallahassee, for appellee.
   Per Curiam.

Affirmed. Fla. R. App. P. 9.315(a).

Damoorgian, Forst and Klingensmith, JJ., concur.


author: Damoorgian, J.

text:
    Ronnie J. KNIGHTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4630
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
    ON REMAND FROM THE SUPREME COURT OF FLORIDA
   Damoorgian, J.

This matter is before us on remand from the Supreme Court of Florida following its decision in State v. Knighton , No. SC16-1426 slip op. 235 So.3d 312, 2018 WL 654179 (Fla. Feb. 1, 2018), quashing our decision in Knighton v. State , 193 So.3d 115 (Fla. 4th DCA 2016). In accordance with the supreme court's mandate, we affirm Appellant's adjudication of guilt and sentence.

Affirmed.

Gross and Klingensmith, JJ., concur.


author: Kuntz, J. Gross, J., dissenting.

text:
    PROGRESSIVE SELECT INSURANCE COMPANY, Appellant, v. David A. BLUM, M.D., P.A., a/a/o Vanessa Moreno, Appellee.
    No. 4D16-4311
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Douglas H. Stein of Association Law Group, P.L., Miami, for appellant.
    Marlene S. Reiss, Miami, and Thomas J. Wenzel of Cindy A. Goldstein, P.A., Coral Springs, for appellee.
   Kuntz, J.

We are presented with the following question, certified by the county court to be of great public importance:

PURSUANT TO FLA. STAT. § 627.739, IS AN INSURER REQUIRED TO APPLY THE DEDUCTIBLE TO 100% OF AN INSURED'S EXPENSES AND LOSSES PRIOR TO APPLYING ANY PERMISSIVE FEE SCHEDULE PAYMENT LIMITATION FOUND IN § 627.736(5)(A)(1), FLA. STAT. (2013)?

We rephrase the certified question as follows:

PURSUANT TO SECTIONS 627.736 AND 627.739, FLORIDA STATUTES (2013), IS AN INSURER REQUIRED TO APPLY A POLICY DEDUCTIBLE TO THE TOTAL AMOUNT OF A PROVIDER'S INVOICES TO AN INSURED PRIOR TO APPLYING ANY FEE SCHEDULE FOUND IN § 627.736, FLA. STAT.?

For the reasons explained in our opinion in State Farm Mutual Automobile Insurance Co. v. Care Wellness Center, LLC a/a/o Bardon-Diaz , No. 4D16-2254, --- So.3d ----, 2018 WL 1315026 (Fla. 4th DCA Mar. 14, 2018), also issued today, we answer the rephrased certified question in the negative, reverse the county court's summary judgment, and remand for further proceedings consistent with our opinion in case number 4D16-2254. We also certify conflict with Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Jonathan Parent , 236 So.3d 1183, 2018 WL 792012 (Fla. 5th DCA Feb. 9, 2018).

Reversed and remanded; conflict certified.

Forst, J., concurs.

Gross, J., dissents with opinion.

Gross, J., dissenting.

I dissent for the reasons set forth in my dissent to the Court's opinion in USAA Gen. Indem. Co. v. Gogan a/a/o Tara Ricks , No. 4D16-3313, 238 So.3d 937, 2018 WL 1315053 (Fla. 4th DCA Mar. 14, 2018).


text:
    Kevon OBAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2629
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant, Kevon Obas, challenges his convictions and sentences for two counts of attempted first-degree murder and one count of robbery with a firearm. We affirm appellant's convictions and sentences without comment, but write to address appellant's third issue.

Appellant argues that the trial court's amended judgment contains a scrivener's error inaccurately describing Count II as attempted first-degree murder with the discharge of a firearm causing great bodily harm, although the victim in Count II did not suffer injury. The state concedes this but also points to another scrivener's error in Count I, where the trial court erroneously removed the reference to section 775.087(2)(a) 3, Florida Statutes, under which appellant was charged for causing great bodily harm to the victim in Count I.

The record reflects both errors in the written judgment. Accordingly, we affirm appellant's convictions and sentences but remand with instructions for the trial court to correct the two scrivener's errors. See Ali v. State , 215 So.3d 1250, 1251 (Fla. 4th DCA 2017) (remanding for trial court to correct scrivener's error on the final judgment to reflect the offenses for which appellant violated probation); Sweeney v. State , 138 So.3d 1095, 1095 (Fla. 4th DCA 2014) (remanding for trial court to correct statute number on defendant's sentence). Appellant need not be present for this ministerial action. See Williams v. State , 697 So.2d 584, 584 (Fla. 4th DCA 1997).

Affirmed; Remanded for correction of scrivener's errors.

Taylor, May and Damoorgian, JJ., concur.


text:
    DYCK-O'NEAL, INC., Appellant, v. Clyde LARMAN, Appellee.
    No. 4D17-317
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    David M. Snyder of David M. Snyder, Tampa, and Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, for appellant.
    Yanina Zilberman, Roy D. Oppenheim, Geoffrey E. Sherman and Jacquelyn Trask of Oppenheim & Pilelsky, Weston, for appellee.
   Per Curiam.

For the reasons set forth in Dyck-O'Neal, Inc. v. McKenna , 198 So.3d 1038 (Fla. 4th DCA 2016), we similarly reverse the final order of dismissal in the instant case and remand with instructions to reinstate the complaint. See Cheng v. Dyck-O'Neal, Inc. , 199 So.3d 932 (Fla. 4th DCA 2016).

We certify conflict with Higgins v. Dyck-O'Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016), as we did in McKenna .

Reversed and remanded with instructions; conflict certified.

Taylor, May and Damoorgian, JJ., concur.


text:
    Stanley GORDON and Carol Lightbody, Appellants, v. MEDITERRANEA MAINTENANCE ASSOCIATION, INC., Appellee.
    No. 4D17-1793
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Stanley Gordon, Royal Palm Beach, pro se.
    No appearance for Appellant Carol Lightbody.
    Douglas H. Stein of the Association Law Group, PH, Miami, for appellee.
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank , 377 So.2d 1150 (Fla. 1979).

Gross, Taylor and Kuntz, JJ., concur.


author: Taylor, J.

text:
    Elizabeth LAMORTE, Appellant, v. Pablo TESTONI, Appellee.
    No. 4D17-3487
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Manuel Farach of McGlinchey Stafford, PLLC, Fort Lauderdale, for appellant.
    Michael S. Dyer of the Law Office Michael Samuel Dyer, West Palm Beach, for appellee.
   Taylor, J.

The mother, Elizabeth LaMorte, appeals an Amended Final Judgment of Determination of Paternity, which established the appellee's paternity of the parties' minor children and adjudicated issues regarding timesharing and child support. We affirm on all issues, but write to address one of the mother's arguments.

With respect to the mother's argument that the trial court erred by failing to provide for support of the parties' special needs child past the age of majority, we find that this issue was not preserved. However, our affirmance on this issue is without prejudice to the mother seeking a modification of child support on the basis that section 743.07(2), Florida Statutes, applies. See § 61.13(1)(a)2., Fla. Stat. (2017) ("The court initially entering an order requiring one or both parents to make child support payments has continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments ... if s. 743.07(2) applies ...."); § 743.07(2), Fla. Stat. (2017) (a court may require support "for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority ....").

Affirmed.

May and Damoorgian, JJ., concur.


text:
    Maltide JEAN-LOUIS, Appellant, v. The BANK OF NEW YORK MELLON f/k/a Bank of New York as Trustee for the Benefit of the Certificateholders of CWALT, Inc. Alternative Loan Trust 205-33CB Mortgage Pass-Through Certificates, Series 2005-33CB, Silfa Jean-Louis, Leonade Jean-Louis and Tatyana Jean-Louis, Appellees.
    No. 4D17-2137
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Philippe Symonovicz, Fort Lauderdale, for appellant.
    Dariel Abrahamy of Greenspoon Marder, P.A., Boca Raton, for Appellee Bank of New York Mellon.
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

Gross, Taylor and Kuntz, JJ., concur.


text:
    Michael Vincent ANGUILLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3964
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
    ON CONFESSION OF ERROR
   Per Curiam.

On appeal, appellant argues that the trial court erred by imposing: (1) a sentence for misdemeanor possession of cannabis in excess of the statutory maximum; (2) court costs for that offense under section 938.05(1)(b), Florida Statutes (2017), after imposing costs under the same statutory provision for a companion felony charge in the case; and (3) costs under section 318.18, Florida Statutes (2017), when no traffic offense was charged in the case. Appellee confesses error, and does not oppose reversal of the sentence on the cannabis charge and reversal of the order imposing the contested costs. After reviewing the record, we agree that the trial court erred. We reverse the sentence and contested costs imposed by the trial court for the cannabis charge and remand for further proceedings.

Reversed and remanded.

Ciklin, Damoorgian and Conner, JJ., concur.


author: LAGOA, J.

text:
    C.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-980
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

C.T., a juvenile, appeals from the trial court's order withholding adjudication of delinquency and placing him on probation for grand theft of a motor vehicle. Because the State failed to present sufficient evidence that C.T. knew the car he was driving was stolen, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

On August 18, 2016, the State filed a petition for delinquency charging C.T. with grand theft of a motor vehicle in violation of section 812.014(2)(c)6, Florida Statutes (2016), for an incident that occurred on July 30, 2016. An adjudicatory hearing was held on October 26, 2016.

At the adjudicatory hearing, the only issue before the trial court was whether C.T. knew that the car he was driving was stolen when stopped by the police. Because the case against C.T. was entirely circumstantial, the State relied upon the statutory inference of guilty knowledge provided by section 812.022(2), Florida Statutes (2016), which states that "proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen."

At the adjudicatory hearing, the State presented testimony from the victim, Hector Alvarez. Alvarez testified that his vehicle was stolen on the evening of July 27, 2016. At 5 a.m. on July 30, while driving his girlfriend to work, Alvarez saw his car approximately four to six miles from where it was stolen. Alvarez followed the car and called the police. The police subsequently stopped the car. Alvarez testified that when the police officers approached the car, the driver did not alter his speed or attempt to flee. One of the officers at the traffic stop, Officer Hernandez, testified that C.T. was the driver of the car. Defense counsel conceded that the car stopped by the police was Alvarez's car and that it was stolen on the night of July 27. Alvarez testified that when he retrieved his car, it had not been physically altered or damaged in any way.

Following the State's case, the defense moved for judgment of dismissal, which the trial court denied.

C.T. also testified at the hearing. C.T. denied stealing Alvarez's car or knowing that it was stolen. C.T. testified that on the night at issue he got the key to the car from his friend, Deandre, while at Deandre's house. Deandre had, in turn, been given the key from his friend, a person named Jacob. Jacob used to sell cars, "[s]o he told us to try it out, so we tried it out." On cross examination, C.T. testified that he had known Deandre for about three years, and that Deandre did not have a car before that night. C.T. admitted that he did not know if Jacob actually gave Deandre permission to drive the car, but that he trusted Deandre when he gave him the keys to the car and said, "I just go with what he told me." Deandre suggested that the two take the car to meet up with some girls and Deandre asked C.T. to drive because he was the better driver. Deandre was in the car with C.T. when the police stopped the car.

At the conclusion of the adjudicatory hearing, defense counsel argued that C.T. was entitled to a judgment of dismissal because C.T. gave a patently reasonable explanation for his possession of the car-he got it from his friend, Deandre, who told him a friend of his who use to sell cars wanted them to "try it out." Moreover, nothing about the car's physical condition indicated to C.T. that it had been stolen. The State argued that C.T.'s explanation was unreasonable given his testimony that Deandre never had a car before, that he did not ask Deandre why he had a car, or why Jacob, whom C.T. does not know, was letting him drive the car.

The trial court denied the motion for judgment of dismissal and found C.T. delinquent, stating that "his explanation was not reasonable, particularly in light of his testimony that he knew that his friend [Deandre] previously had no automobile." The trial court withheld adjudication of delinquency and placed C.T. on probation. This appeal ensued.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's denial of a motion for judgment of dismissal. W.B. v. State, 179 So.3d 411, 412-13 (Fla. 3d DCA 2015). "While the evidence must be viewed in the light most favorable to the State, if the State fails to present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper." P.N. v. State, 976 So.2d 90, 91 (Fla. 3d DCA 2008) ; accord E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003).

III. ANALYSIS

On appeal, C.T. argues that the trial court erred in denying his motion for judgment of dismissal because the State failed to present sufficient evidence that he knew the car he was driving was stolen. We agree with C.T.

C.T. was charged with grand theft of a motor vehicle. The elements of grand theft of a motor vehicle are

(1) the knowing and unlawful obtaining or use, or the knowing and unlawful endeavor to obtain or use, (2) the motor vehicle of another, (3) with intent to either temporarily or permanently (a) deprive the owner or lawful possessor of the motor vehicle of a right to the vehicle or a benefit from it, or (b) appropriate the motor vehicle to the accused's own use or to the use of any person not entitled to it.

Jones v. State, 666 So.2d 960, 964 (Fla. 3d DCA 1996). In order to prove the crime of grand theft of a motor vehicle, the State was required to prove that C.T. knowingly obtained or used the motor vehicle of another. See § 812.014(1), Fla. Stat. (2016) ; M.D.S. v. State, 982 So.2d 1282, 1284 (Fla. 2d DCA 2008) ("In order to establish the crime of theft, the State must prove that the accused 'knowingly' obtained or used the property of another with the intent to deprive that person of the use of the property or to appropriate the property to the accused's use.").

To establish that C.T. knew the car he was driving was stolen, the State relied solely on the inference set forth in section 812.022(2), Florida Statutes, which provides that "proof of possession of property recently stolen, unless satisfactorily explained , gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen." (emphasis added). The inference provided by section 812.022(2) is sufficient to support a theft conviction. See Smith v. State, 742 So.2d 352, 354-55 (Fla. 5th DCA 1999). The reasonableness of a defendant's explanation for possession of a stolen item "is ordinarily a question of fact for the jury to determine, or the judge in a non-jury trial, together with all the other facts and circumstances in the case." J.J. v. State, 463 So.2d 1168, 1169 (Fla. 3d DCA 1984) (Hubbart, J., dissenting), adopted on reh'g as opinion of the court.

However, "where a reasonable explanation for possession of recently stolen property is totally unrefuted, and there is no other evidence of guilt, the court must grant a directed verdict for the defendant." Smith, 742 So.2d at 355 (emphasis in original); see also Coleman v. State, 466 So.2d 395, 397 (Fla. 2d DCA 1985) ("[T]he rule is that where a defendant gives a patently reasonable explanation for his possession of recently stolen goods which is totally unrefuted, and there is no other evidence of guilt, the court must direct a judgment of acquittal.").

As such, this Court held in R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981), that where the State's case is based entirely upon the inference arising under section 812.022(2), a finding of guilt is precluded where the defendant offers a reasonable and unrefuted explanation for possession of the stolen item and there are no additional incriminating circumstances. In R.A.L., this Court held that

the respondent's unrefuted, exculpatory, and not unreasonable explanation of his possession of a stolen moped that he bought it at a flea market rendered the state's case, which was based solely on the inference provided by Section 812.022(2), Florida Statutes (1979), without any additional incriminating circumstances, insufficient as a matter of law to establish guilt.

402 So.2d at 1337 (footnote omitted); accord E.L.S. v. State, 547 So.2d 298, 299 (Fla. 3d DCA 1989) (holding that the juvenile's unrefuted, exculpatory, and not unreasonable explanation that driver told him the truck in which he was riding belonged to driver's uncle precluded conviction for theft); R.M. v. State, 450 So.2d 897, 898 (Fla. 3d DCA 1984) (reversing juvenile's conviction for grand theft of vehicle where juvenile's unrefuted, exculpatory, and not unreasonable explanation that he borrowed it from his stepfather rendered the State's case insufficient as a matter of law); R.M. v. State, 412 So.2d 44, 45 (Fla. 3d DCA 1982) (finding juvenile's unrefuted explanation that he borrowed the bicycle from a friend precluded conviction for grand theft).

Here, the explanation provided by C.T. for possession of the stolen vehicle was unrefuted by the State, and the State presented no other evidence of guilt. This Court's decisions in E.L.S., 547 So.2d at 298, and R.M., 450 So.2d at 897, are on point and compel reversal in the instant case. In E.L.S., this Court found that the State failed to prove that the juvenile defendant knew that the truck in which he was riding was stolen where the juvenile explained that "the driver told him the truck belonged to the driver's uncle from whom it had recently been stolen and to whom it had been returned." 547 So.2d at 299. This Court characterized the juvenile's explanation as "not unreasonable" and held that the conviction for theft was not supported by the record. Id.

Similarly, in R.M., this Court reversed the juvenile's conviction for grand theft because the State failed to demonstrate that the juvenile knew the vehicle he was driving was stolen. 450 So.2d at 897. In that case, the juvenile offered the " 'unrefuted, exculpatory and not unreasonable' " explanation that he borrowed the vehicle from his stepfather. Id. at 898 (quoting R.A.L., 402 So.2d at 1337 ).

Here, as in E.L.S. and R.M., we find that C.T.'s explanation for his possession of the vehicle was unrefuted, exculpatory, and reasonable. In the present case, C.T. testified that he got the key to the car from his friend, Deandre. Deandre, in turn, had gotten the key from his friend Jacob, who used to sell cars, and who "told us to try it out, so we tried it out." Additionally, C.T. testified that he trusted Deandre when he gave him the key to the car. Contrary to the trial court's reasoning below, the fact that Deandre "previously had no automobile" does not render C.T.'s unrefuted explanation unreasonable, as that fact is not inconsistent with C.T.'s testimony that he trusted his friend of three years when he stated that Jacob gave him permission to use the car. Nor, as the State suggests, was C.T.'s explanation for possession of the stolen car rendered "unsatisfactory" by C.T.'s failure to further question Deandre as to how or why he "suddenly" had possession of a car.

Additionally, the State offered no other evidence of guilty knowledge on the part of C.T. For example, there was no physical damage to the vehicle that might have indicated to C.T. that it was stolen. See P.W. v. State, 730 So.2d 422, 423 (Fla. 5th DCA 1999) (finding that there was no indication juvenile knew or should have known that the vehicle was stolen where there was no damage to the vehicle indicating it had been broken into and his friend represented that his grandmother was permitting him to drive the vehicle). C.T. did not flee when approached and stopped by the police officers, cf. D.L. v. State, 138 So.3d 499, 501 (Fla. 3d DCA 2014) (stating rule that evidence of flight is relevant to demonstrate a defendant's consciousness of guilt), and there was no evidence that C.T. gave the police officers an explanation for his possession of the car that differed from the one he presented at trial, cf. P.N. v. State, 443 So.2d 193, 194 (Fla. 3d DCA 1983) (concluding "that the multiplicity of alternative versions advanced by the juvenile created an issue for the trier of fact as to whether his possession of the [stolen] moped had been satisfactorily explained so as to dissipate the statutory presumption" set forth in section 812.022(2) ).

IV. CONCLUSION

Because the State failed to present sufficient evidence to establish that C.T. knew the car he was driving was stolen, we reverse the trial court's order withholding adjudication of delinquency and remand with directions to discharge C.T. from probation on this case.

Reversed and remanded with directions to discharge defendant from probation on this case.

      The crime of grand theft of a motor vehicle is set forth in section 812.014(1), (2)(c)6, Florida Statutes (2016):
      (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
      (a) Deprive the other person of a right to the property or a benefit from the property.
      (b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.
      ....
      (2)(c) It is grand theft of the third degree and a felony of the third degree ... if the property stolen is:
      ....
      6. A motor vehicle ....

      Indeed, during cross-examination, Alvarez acknowledged that when he retrieved his vehicle nothing had been damaged and that it was in exactly the same physical condition as it had been on the night it was stolen.

      The State's argument that C.T. provided multiple, contradictory versions of how he came into possession of the key is not supported by the transcript of the adjudicatory hearing. A review of the transcript in its entirety shows that C.T.'s "multiple versions" were the result of the State's failure during cross-examination to clearly state in its questions to whom it was referring-Deandre or Jacob-when asking C.T. about his "friend."


author: LaROSE, Chief Judge.

text:
    GREENBERG TRAURIG, P.A., Appellant/Cross-Appellee, v. Jeffrey B. STARLING, Appellee/Cross-Appellant, and Florida Urology Partners, LLP, a Florida limited liability partnership; FUP IV, P.L., a Florida professional limited liability company; Frank D. Mastandrea ; David A. Hochberg; Rudolph Acosta, Jr. ; and Osvaldo Padron, Appellees.
    Case No. 2D17-772
    District Court of Appeal of Florida, Second District.
    Opinion filed January 5, 2018 Rehearing Denied March 6, 2018
    Christopher Torres and John A. Wirthlin of Greenberg Traurig, P.A., Tampa, for Appellant/Cross-Appellee.
    Michael C. Addison of Addison & Associates, P.A., Tampa, for Appellee/Cross-Appellant Jeffrey B. Starling.
    No appearance for remaining Appellees.
   LaROSE, Chief Judge.

Greenberg Traurig, P.A. ("Greenberg") appeals the trial court's final order granting Dr. Jeffrey B. Starling's motion to strike Greenberg's charging lien for lack of jurisdiction. Dr. Starling cross-appeals the same order, challenging the trial court's finding that Greenberg's charging lien was valid. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A) ; 9.110(g). We remand for the trial court to strike from its order the finding that the charging lien was valid. We affirm the order in all other respects.

Factual and Procedural Background

In 2012, Dr. Starling hired Greenberg to represent him in a lawsuit against his former medical partners. During the representation, Dr. Starling and Greenberg began arguing over Greenberg's invoices for legal services. After accruing over $300,000 in unpaid attorneys' fees and costs, Greenberg withdrew as Dr. Starling's counsel in late September 2015. Greenberg transferred its files to Dr. Starling's new counsel, Addison & Howard, P.A. ("Addison").

Thereafter, Dr. Starling and the defendants in the original lawsuit settled the case at mediation. On January 8, 2016, the parties filed a joint stipulation for dismissal with prejudice. They did not notify Greenberg of the mediation, settlement, or dismissal.

Before the dismissal of the original action, Greenberg sent Dr. Starling and Addison several letters. Each letter advised Dr. Starling that Greenberg reserved its right to file and enforce a notice of charging lien. Dr. Starling and Addison received and read the letters; neither responded.

Almost two weeks after the dismissal of the original action, Greenberg filed its notice of charging lien in the original action. Dr. Starling moved to strike the charging lien. In response, Greenberg moved to reopen the underlying case so as to enforce its charging lien. The trial court granted Greenberg's motion, and scheduled an evidentiary hearing to determine whether it had jurisdiction to enforce the charging lien after the voluntary dismissal.

At the hearing, Greenberg argued that the trial court should enforce the charging lien because it had met the requirements for a valid lien. Dr. Starling, however, contended that the trial court lost jurisdiction to enforce the charging lien once the parties voluntarily dismissed the case with prejudice, with no reservation of jurisdiction for the trial court to consider the notice, settlement, or attorneys' fees. When the trial court asked whether it had jurisdiction, Greenberg argued that Dr. Starling committed a fraud when he dismissed the original action without notice to Greenberg.

The trial court entered a written order granting Dr. Starling's motion to strike the charging lien. Yet, the trial court also found that Greenberg had a valid charging lien. The trial court held that it lacked jurisdiction to enforce the notice of charging lien because Greenberg filed its lien after the filing of the joint stipulation of dismissal. Greenberg appealed the order, and Dr. Starling cross-appealed.

Analysis

On appeal, Greenberg argues that the trial court had jurisdiction to enforce the charging lien because Greenberg timely perfected the lien by sending Dr. Starling three separate letters staking out its claim for payment before dismissal of the original action. In response, Dr. Starling argues that the trial court lacked jurisdiction to enforce the charging lien because Greenberg failed to perfect its charging lien by filing its notice before the voluntary dismissal.

We review the trial court's order de novo. See Baker & Hostetler, LLP v. Swearingen, 998 So.2d 1158, 1161 (Fla. 5th DCA 2008) ("We review orders determining subject matter jurisdiction de novo, inasmuch as such an order generally resolves an issue of law.").

To perfect a charging lien, the attorney must "either file a notice of lien or otherwise pursue the lien in the original action" before the case is dismissed. Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla. 1986) ; see also Heller v. Held, 817 So.2d 1023, 1026 (Fla. 4th DCA 2002) (holding the attorney provided timely notice of the lien based on the attorney's motion to withdraw and "the order authorizing such withdrawal, referencing [the attorney's] intent to pursue a charging lien").

The three letters that Greenberg sent to Dr. Starling and Addison were not filed in the original action before the dismissal, and thus, did not constitute pursuing the lien in the original action. See Heller, 817 So.2d at 1026. The letters reflected action that Greenberg might take in the future. And, indisputably, Greenberg did not file its notice of lien before the dismissal. Unlike the situation in Heller, nothing filed in the trial court before dismissal of the original action would have alerted the trial court to Greenberg's intent to seek fees through a charging lien. See id. Accordingly, we conclude that Greenberg did not timely perfect its charging lien, and the trial court lost jurisdiction to entertain it after the voluntary dismissal. See Brody v. Broward Cty. Sheriff's Office, 137 So.3d 610, 611 (Fla. 4th DCA 2014) ("A trial court lacks jurisdiction to entertain a charging lien where it has not been timely perfected; that is, filed before the trial court lost jurisdiction through settlement, dismissal or final judgment."); see, e.g., Naftzger v. Elam, 41 So.3d 944, 947 (Fla. 2d DCA 2010) (holding the trial court lacked jurisdiction to enforce the charging lien "[b]ecause attorney Elam sought to enforce a charging lien after the trial court dismissed the case without any reservation of jurisdiction").

Dr. Starling points out on cross-appeal that the trial court found the charging lien valid, even though the trial court correctly determined that it lacked jurisdiction to entertain Greenberg's lien. To the extent that the order striking the lien for lack of jurisdiction determines the lien to be valid, it is void. See Dandar v. Church of Scientology Flag Serv. Org., Inc., 190 So.3d 1100, 1103-04 (Fla. 2d DCA 2016) (concluding that the trial court's ruling on the motion to enforce the settlement agreement was void because the trial court lacked jurisdiction to rule on any such motion "after the voluntary dismissal with prejudice was filed"); Strommen v. Strommen, 927 So.2d 176, 179 n.4 (Fla. 2d DCA 2006) ("[W]hen a court acts without jurisdiction, its action is void and subject to collateral attack." (quoting Fla. Power & Light Co. v. Canal Auth., 423 So.2d 421, 423 n.5 (Fla. 5th DCA 1982) )). Thus, we remand with directions for the trial court to strike from its order the finding that "[Greenberg] holds a valid charging lien." In all other respects, we affirm the order.

Affirmed, and remanded with instructions.

NORTHCUTT and KELLY, JJ., Concur.

      Greenberg's first attempt to file the notice on January 11, 2016, failed because the clerk rejected the filing based on the dismissal of the case.

      We do not address whether Greenberg is entitled to pursue an independent action for relief from the voluntary dismissal on the ground of extrinsic fraud under Florida Rule of Civil Procedure 1.540(b). Greenberg failed to sufficiently raise that argument on appeal. In its briefs, Greenberg focused on the argument that the trial court had jurisdiction to consider the charging lien because it perfected the lien, not because there was fraud on the court. Furthermore, Greenberg stated in one of its briefs that rule 1.540 was irrelevant to this appeal. We will not rebrief the issue. See Manatee Cty. Sch. Bd. v. NationsRent, Inc., 989 So.2d 23, 25 (Fla. 2d DCA 2008). Thus, Greenberg waived this argument. See Lynn v. City of Fort Lauderdale, 81 So.2d 511, 513 (Fla. 1955) ("[T]he duty rests upon the appealing party to make error clearly appear.").


author: PER CURIAM.

text:
    Tyler Lee JACOBSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5188
    District Court of Appeal of Florida, Second District.
    Opinion filed January 5, 2018 Rehearing Denied March 5, 2018
    Tyler Lee Jacobson, pro se.
   PER CURIAM.

Tyler Jacobson appeals the order granting in part and dismissing in part his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the dismissal of ground five of the motion without further discussion. We affirm the dismissal of grounds one, two, and three, albeit not for the reason given by the postconviction court.

In June 2010, Mr. Jacobson was arrested and charged with burglary of a dwelling and grand theft. Mr. Jacobson was arrested again in July 2010, and charged with larceny, dealing in stolen property, burglary, and three counts of providing false information to a pawnbroker ("2010 cases"). Mr. Jacobson pleaded guilty in both cases and was sentenced to six years' state probation as a youthful offender, with his sentence in each case to be served concurrently with the other.

On April 21, 2012, Mr. Jacobson was arrested for burglary of a conveyance, grand theft, and multiple counts of petit theft ("2012 case"). As a result, he was charged with violating his probation. Thereafter, the trial court revoked Mr. Jacobson's probation and sentenced him to concurrent terms of ten years' imprisonment in both cases. Mr. Jacobson entered an open plea in the 2012 case and the trial court sentenced him to five years' imprisonment on counts one and two, followed by five years' probation on counts three, five, and seven. Mr. Jacobson was sentenced to time served on all remaining charges. The incarcerative sentences in the 2012 case were to run concurrently with the sentences in the 2010 cases.

Mr. Jacobson appealed all three cases. The judgments and sentences in the 2010 cases were affirmed by this court with the mandates issuing on November 18, 2013, and January 28, 2014. See Jacobson v. State, 124 So.3d 926 (Fla. 2d DCA 2013) ; Jacobson v. State, 146 So.3d 1181 (Fla. 2d DCA 2014). This court affirmed Mr. Jacobson's judgment and sentence in the 2012 case, and the mandate issued on January 28, 2014. See Jacobson v. State, 146 So.3d 34 (Fla. 2d DCA 2013).

On June 22, 2016, Mr. Jacobson filed the instant motion for postconviction relief raising five grounds. Grounds one, two, and three all related to the 2012 case, while grounds four and five related to the 2010 cases.

The postconviction court dismissed grounds one, two, and three. The judge erroneously reasoned he lacked jurisdiction because he did not preside over the 2012 case. Contrary to the judge's ruling, the postconviction court had jurisdiction over the felonies and misdemeanors in the 2012 case. See § 26.012(2)(d), Fla. Stat. (2016) ; see also art. V, § 5(b), Fla. Const. As a general matter, there is no requirement that the same judge has to preside over both the trial and postconviction proceedings.

Although the postconviction court's dismissal of claims one, two and three on that basis was erroneous, we ultimately affirm the dismissal because those claims are untimely. The ineffective assistance of trial counsel claims raised in grounds one, two, and three were not made within two years of the date of the mandate issued from Mr. Jacobson's appeal of the 2012 case and they do not meet any of the exceptions to the two-year time limit listed in rule 3.850(b). See Fla. R. Crim. P. 3.850(b) ; Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) ("[T]he 'tipsy coachman' doctrine[ ] allows an appellate court to affirm a trial court that 'reaches the right result, but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record.' " (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla. 1999) )). Accordingly, we affirm the postconviction court's order.

Affirmed.

CASANUEVA, CRENSHAW, and LUCAS, JJ., Concur.

      Ground four of the motion was granted by the postconviction court.

      These sentences were later corrected after the postconviction court granted a rule 3.850 motion that Mr. Jacobson filed in 2015.


text:
    Frederick SABIDO and Jonelle Sabido, Appellants, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York, Successor to JP Morgan Chase Bank, National Association, as Trustee for CWALT, Inc., Alternative Loan Trust 2007-J1, L'hermitage Community Association, Inc., and Citibank, N.A., Appellees.
    No. 4D16-2944
    District Court of Appeal of Florida, Fourth District.
    February 7, 2018
    Roy D. Oppenheim, Geoffrey E. Sherman, Jacquelyn Trask, and Yanina Zilberman of Oppenheim Pilelsky, P.A., Weston, for appellants.
    Elliot B. Kula, W. Aaron Daniel, and William D. Mueller of Kula & Associates, P.A., Miami, for appellee, The Bank of New York Mellon.
    ON MOTION FOR CLARIFICATION AND RECONSIDERATION
   Gross, J.

The borrowers move for clarification and reconsideration of our order denying their motion for appellate attorney's fees. We grant the motion for clarification and deny the motion for reconsideration, holding that where the plaintiff bank failed to comply with the requirements of the lost note statute, requiring the dismissal of their mortgage foreclosure case, the borrowers are not entitled to recover attorney's fees under the terms of the mortgage to which the plaintiff bank was not a signatory.

Prior to disposition of the underlying appeal, the borrowers timely moved for appellate attorney's fees, citing as their basis for entitlement Florida Statute section 57.105(7) together with language in the mortgage providing for fees to the lender in the event of the borrowers' default.

In the underlying appeal, we reversed the trial court's final judgment of foreclosure, finding that the plaintiff, the Bank of New York Mellon, failed to establish its entitlement to enforce the note under the lost note statute. Sabido v. Bank of New York Mellon , No. 4D16-2944, --- So.3d ----, 2017 WL 6506443 (Fla. 4th DCA December 20, 2017). While the borrowers prevailed on appeal, we issued a separate order summarily denying their motion for attorney's fees.

To clarify, the borrowers' motion for fees was based on a contract-the mortgage-between the borrowers and Washington Mutual, not the plaintiff in this case. The borrowers argued at trial and on appeal that the Bank of New York Mellon was not in possession of the original note and was not entitled to enforce it under the lost note statute. On appeal, the borrowers prevailed on this issue.

In their motion for reconsideration, the borrowers argue that they are entitled to enforce the attorney's fee provision in the mortgage against the Bank of New York Mellon. It is significant that the Bank of New York Mellon was not a signatory to the note or the mortgage, and failed to establish its entitlement to enforce either against the borrowers.

The borrowers interpret our holding in Nationstar Mortgage LLC v. Glass , 219 So.3d 896 (Fla. 4th DCA 2017) as precluding an award of attorney's fees to a prevailing borrower only if the borrower prevailed because the bank failed to prove standing. Yet nothing in Glass limits the holding to the standing issue. The holding in Glass was broader, focusing on a failure to prove entitlement to enforce a mortgage and note:

[W]here the foreclosing plaintiff does not establish its right to enforce the mortgage note at the time of filing of the suit, there is no ability to enforce the terms of the note, including the provision regarding attorney's fees.
Simply put, to be entitled to fees ... the movant must establish that the parties to the suit are also entitled to enforce the contract containing the fee provision.

Id. at 898, 899 (emphasis added).

Here, the borrowers successfully argued that the Bank of New York Mellon failed to establish its entitlement to enforce the note and mortgage. "[W]here a party prevails by arguing the plaintiff failed to establish it had the right pursuant to the contract to bring the action, the party cannot simultaneously seek to take advantage of a fee provision in that same contract." Id. at 898.

The borrowers' motion for fees is denied because the Bank of New York Mellon was not a party to the note and mortgage, and because the borrowers successfully argued that the Bank of New York Mellon was not entitled to enforce the instrument containing the attorney fee provision.

Motion for clarification granted; motion for reconsideration denied.

MAY and KLINGENSMITH , JJ., concur.


author: Lewis, J.

text:
    Edward A. CRAPO, as Alachua County Property Appraiser, Appellant, v. PROVIDENT GROUP-CONTINUUM PROPERTIES, L.L.C., a Florida not-for-profit limited liability company, and Von Fraser, in his capacity as Alachua County Tax Collector, Appellees.
    No. 1D17-280
    District Court of Appeal of Florida, First District.
    February 8, 2018
    John C. Dent, Jr., and Jennifer A. McClain of Dent & McClain, Chartered, Sarasota, for Appellant.
    David K. Miller of Broad and Cassel LLP, Tallahassee, for Appellee Provident Group-Continuum Properties, L.L.C.
   Lewis, J.

Appellant, Edward A. Crapo, as Alachua County Property Appraiser, appeals a Final Declaratory Judgment in which the trial court determined that property used for student housing that is legally owned by Appellee, Provident Group-Continuum Properties, L.L.C., is equitably owned by the University of Florida ("UF") and is, thus, immune from ad valorem taxation. For the reasons that follow, we affirm.

Appellee owns legal title to the property at issue known as "The Continuum." The property is located near UF's campus in Gainesville and consists of 350,000 square feet, most of which is dedicated for graduate and professional student housing. Appellee's sole member is Provident Resources Group, Inc., a nonprofit corporation that, as one of its charitable functions, assists public universities to acquire, develop, and operate student housing. Appellee's Amended and Restated Articles of Organization describes its purpose as follows:

The Company is organized exclusively to further the stated charitable purposes of its Sole Member, a Georgia nonprofit and an organization exempt from Federal Income tax. Specifically, the Company is organized for the purpose of planning, developing, financing, equipping, operating, and maintaining a student housing facility and certain ancillary facilities located in Gainesville, Florida, exclusively for the benefit of [UF] and its students, consistent with the terms of a Student Housing Agreement by and between the University and the Company. The Company may engage in any lawful business activity permitted by the Act in furtherance of the foregoing purposes.

Article V, entitled "Public Benefit," sets forth:

The Company shall operate exclusively in furtherance of the above stated charitable purposes and shall not engage in any activities that would jeopardize the tax exempt status of the Sole Member. No substantial part of the Company's activities will be carrying on propaganda or otherwise attempting to influence legislation. No part of the real earnings of the Company or any of its operations shall result in private inurement or impermissible benefits to private interests or individuals. The Company shall not be operated for pecuniary profit.

Pursuant to its Operating Agreement, Appellee is to "undertake the acquisition, financing, equipping, ownership, operation and maintenance of the Student Housing Facility for the benefit of the University and its students, consistent with the terms and provisions of the Student Housing Agreement, which purpose is in furtherance of the stated charitable purposes of the Sole Member...." The Board of Managers is to "utilize any available surplus cash flow of the Company solely and exclusively in furthering the Charitable Activities of the Company, consistent with the stated charitable purposes of the Sole Member." Upon the "winding up of the Company," the "Company Property (or the proceeds thereof)" must be distributed in the "following order and priority: (a) to creditors ... (b) to the University ... (c) to the Sole Member of the Company for distribution in accordance with its charitable purposes ...."

The Student Housing Agreement, which Appellee and UF's Board of Trustees executed on August 9, 2010, explains "that there is a need for additional housing for graduate and professional school students," that Appellee desired to assist UF in meeting the need for additional housing, and that Appellee would, with the support and direction of UF's Department of Housing and Residence Education, implement housing educational programs and policies to serve the needs of UF's graduate and professional school students. UF "shall market and promote the Facility as a University-affiliated housing option for University Students." Appellee agreed "that all net revenues from operations of the Facility shall be used solely for the purpose of furthering the Charitable Activities." UF acknowledged that it "shall directly and substantially benefit from the development, operation and management of the Facility by Provident and that the Facility will provide a much needed addition to the housing supply ...." Upon the repayment in full of the project's financing, "all right, title, and interest in and to the Property shall be conveyed from Provident to the University or to another similarly situated charitable organization ...." If all or a portion of the property were to be taken by condemnation or other eminent domain proceedings, "any award or compensation payable in connection with such Taking shall be paid to the following priority: (i) first, to satisfy any remaining repayment obligations under the Continuum Financing ... (ii) second, to the University ...."

The Declaration of Covenants and Restrictions for the property provides that "Declarant hereby covenants that the Property herein ... shall be used exclusively as a housing community with related retail and ancillary uses ...." UF "shall have the right to enforce ... all restrictions, covenants and conditions imposed by the provisions of this Declaration."

In April 2013, Appellee sought declaratory relief for tax immunity from May 28, 2010, to the date of judgment and also sought a refund of taxes for a portion of 2010 and for 2011. After the trial court granted Appellant's motion to dismiss the action for lack of subject matter jurisdiction, Appellee filed an amended complaint as the "Trustee for the use and benefit of the University of Florida." Appellee sought tax immunity for 2010 through 2014 and again sought a refund of taxes for a portion of 2010 and for 2011. The trial court granted Appellant's motion to dismiss the amended complaint, a ruling which Appellee appealed. In Provident Group-Continuum Properties, L.L.C. v. Crapo , 157 So.3d 409, 410 (Fla. 1st DCA 2015), we reversed the dismissal order, setting forth in part:

[T]he documents don't state that appellant was "trustee" of the property being held "in trust" for the University, but the documents are otherwise replete with statements regarding the powers and duties of appellant for the benefit of the University, including provisions requiring ultimate disposition of the trust property to the University, all of which establish the creation of a trust.
We conclude that the documents established a trust for the benefit of the University of Florida, and thus appellant, as trustee, has standing to contest the tax assessment and is not barred by the time limit of section 194.171(2).

Thereafter, Appellee filed a second and third amended complaint, seeking a declaration of tax immunity for the property "for partial year 2010 and for the years 2011 through 2016; and alternatively, to exemption for 2014 through 2016." It again sought a refund of taxes for a portion of 2010 and for 2011.

During the non-jury trial, Norbert W. Dunkel, UF's Associate Vice-President for Student Affairs and Auxiliary Operations, testified that UF included the housing project at issue "as a part of the Department of Housing and Residence Education website." He explained that UF began looking into expanding its graduate and professional housing in 2008. Because doing so "would cost [UF] about a quarter billion dollars," which was not feasible, Dunkel looked into "a public-private partnership to provide graduate and professional school housing ...." Working with Appellee enabled UF to meet its housing needs for graduate and professional students. UF participates in committees or boards that oversee the project and considers the project a substantial benefit. UF markets the project and hires and trains a master's level professional staff member who lives onsite and is responsible for the "overall residence education of the site," which includes responding to such things as roommate issues, programming issues, and student discipline issues. UF does not provide those types of services to private for-profit housing projects. Any surplus funds for the project are used for payment of the debt.

Donovan Hicks, Appellee's Executive Vice-President, Chief Legal Officer, and Corporate Secretary, testified that Appellee is a "501(c)(3) organization" that "pursues activities in multiple areas, including lessening burdens of government." He explained that the project at issue involved a private non-profit party collaborating with a university to achieve a stated objective of that university and to eliminate certain risks that "universities try to avoid by designing, constructing these projects, financing them, without the university having to incur that indebtedness and able to still get the benefit ... and then ultimately ownership of the project." Appellee had no financial investment of its own in the property. When asked about any surplus funds that would result from tax immunity, Hicks testified, "Any type of resulting excess cash flow or surplus has to be, under the terms of our agreement with [UF], either reinvested in the project, for example, any-taking care of any capital improvement needs that the project might have, assisting the University." When asked who benefits from a surplus cash flow, he replied, "Well, I would say the project, the students who live there, the University whose mission is being served, and then ultimately the University when the project is transferred to them." He explained that Appellee charges market rate rents to students who live at the property because "it costs a lot of money to construct and operate and maintain a project like that" and because the "mission we are pursuing there is to assist the University in achieving its goals and objectives to have a top-quality project that's operated and maintained at the standards that in this case [UF] would want us to maintain ...." UF exercises control over rental rates "[t]hrough their participation on the project operations committee and the board of managers ...."

In the Order Granting Plaintiff's Declaratory Judgment, the trial court set forth in part:

These four documents dedicate the property to the use and benefit of the University as graduate and professional student housing, and also dedicate any surplus revenue from the project to a "charitable" use (defined in the documents to mean use for the University's benefit). Upon retirement of the project financing, the University is entitled to a deed for legal title to the property free and clear, for no payment. Other provisions in the SHA secure the University's rights to approve project plans, use, financing, operations, rental terms, and other matters, and its rights to be named as an insured for the property and to condemnation proceeds if the property is taken. Provident has legal title, but has no equity invested in the property or equitable ownership.
....
The ruling of the First District Court of Appeals, which constrains this court's decision-making authority on certain issues in this matter, held that the documents establish a trust in which Provident holds legal title as trustee for the benefit of the University as equitable owner. The evidence at trial ... confirms that a trust relationship is carried out in the operation of the project. Provident has operated the project in accordance with the SHA. The project's ownership and use have been the same for each of the years in question.
....
... [T]he University clearly intended to have the use and benefit of this project and has accepted the same.... It allows the project to use its name and affiliation to attract student tenants, and provides services on-site. It has accepted the benefits of this transaction for over five years, and has the prospective benefits of continued dedicated use and ultimate title. The University, and not Provident, will benefit if tax relief is granted. In sum, the evidence confirms that the University is the equitable owner of the property as beneficiary of the trust.
The University is a state agency and is the owner of the property for purposes of property tax. This establishes the property's status as immune from tax....

The trial court alternatively determined that Appellee was entitled to a governmental and charitable tax exemption for 2014 through 2016.

In the Final Declaratory Judgment, the trial court found that Appellee was entitled to a refund of $44,878.12 for tax year 2011 and set forth in part, "The entire assessed value is immune from property tax; therefore, no property tax is due for the years in question." This appeal followed.

An order in a declaratory judgment case is generally accorded a presumption of correctness on appeal. Reform Party of Fla. v. Black , 885 So.2d 303, 310 (Fla. 2004). To the extent a decision rests on a question of law, however, an order is subject to de novo review. Id. ; see also Vill. of N. Palm Beach, Fla. v. S & H Foster's, Inc. , 80 So.3d 433, 436 (Fla. 4th DCA 2012) ("On review of a declaratory judgment, we defer to the trial court's factual findings if supported by competent, substantial evidence.... The court's conclusions of law are reviewed de novo.").

As the Florida Supreme Court has explained, what comprises "the State" for purposes of ad valorem tax immunity is limited to "counties, entities providing the public system of education, and agencies, departments, or branches of state government that perform the administration of the state government." Canaveral Port Auth. v. Dep't of Revenue , 690 So.2d 1226, 1228 (Fla. 1996). Appellant argues that the State's immunity from taxation does not enure to benefit a private entity by unilateral declaration without legal basis in law or facts. Appellant acknowledges, however, that property need not be legally owned by an immune entity to be immune from taxation, but can instead be equitably owned. For instance, in Leon County Educational Facilities Authority v. Hartsfield , 698 So.2d 526, 527 (Fla. 1997), the appellant, a public corporate body that was empowered to own, lease, and finance higher educational facilities, "determined" to operate a dormitory and food service project for the purpose of serving the students at FSU, FAMU, and TCC. SRH, a non-profit Florida corporation, was established solely for the purpose of facilitating the financing, acquisition, construction, and equipping of the project. Id. The appellant entered into a lease with option-to-purchase agreement with SRH under which SRH as the lessor would acquire, construct, and equip the project and lease it to the appellant in exchange for periodic rental payments. Id. Any net proceeds in excess of the amounts owed to the investors would be paid to the appellant. Id. The lease specified that the appellant would be responsible for maintenance and insurance on the project and would pay any taxes that were assessed against the project. Id. Upon paying the investors in full, the appellant could purchase the project for $1. Id. The appellant and SRH sued for declaratory relief as to the denial of a tax exemption, and the trial court entered summary judgment in favor of the property appraiser. Id. After noting that the concept of equitable ownership in ad valorem taxation has long been a part of Florida law, the supreme court set forth in part, "Fairness dictates that the doctrine of equitable ownership should be applied evenhandedly regardless of whether a tax is being imposed or an exemption is being claimed...." Id. at 529. The court concluded that the appellant was the equitable owner of the property, while noting that the only reason legal title was held by SRH was to facilitate financing. Id. ; see also Russell v. Se. Housing, LLC, 162 So.3d 262, 269-73 (Fla. 3d DCA 2015) (noting that five military housing complexes were being improved and operated pursuant to a public-private partnership between the United States Navy and a private developer and affirming a judgment holding that the property was not subject to ad valorem taxes because the record established that the Navy retained equitable and beneficial ownership of the property where: (1) the use of the improvements was limited to military housing-a Navy purpose; (2) the Navy oversaw the construction of improvements; (3) the Navy directed the rental of the housing units; (4) the Navy controlled access to the improvements; (5) the Navy supervised the operation of the improvements during the entire lease term; (6) the Navy benefitted from the revenues and received the lion's share of the profits; (7) the Navy would take back the improvements at the end of the lease; and (8) the transfer of title occurred in order to accomplish something other than the transfer of ownership).

Appellant asserts that Appellee is the equitable owner of the property because it administers the current operations of the project and because UF is only provided the benefit of being able to offer students housing at market rates. However, we reject Appellant's attempt to diminish the importance of the benefit UF is receiving from the project. As was the case in Hartsfield , where a non-profit corporation's involvement in a project benefitted a public body, UF acknowledged in the Student Housing Agreement its "direct and substantial benefit from the development, operation and management of the Facility" as a "much needed addition to the housing supply ... as well as to further its "educational purposes and objectives." (Emphasis added). We also reject any attempt to lessen UF's involvement in the housing project. Similar to the facts in Russell , UF was given the right to approve project plans, use, financing, operations, and rental terms for the project. UF allows the project to use its name and affiliation to attract tenants, and it provides services on-site. When the project's repayment obligations are satisfied, UF is entitled to legal title without payment. UF would also be entitled to compensation in any condemnation proceedings once any remaining repayment obligations are paid. Moreover, as we previously determined, the pertinent documents established the existence of a trust for UF's benefit. See Crapo , 157 So.3d at 410 ; see also Imagine Ins. Co. v. State ex rel. Dep't of Fin. Servs. , 999 So.2d 693, 700 (Fla. 1st DCA 2008) (noting that a "trust beneficiary possesses an equitable ownership in the trust property, while the trustee possesses legal title to the property"). As such, we find no merit in Appellant's argument that the trial court erred in determining that UF is the equitable owner of the property and that, as a result, the property is immune from ad valorem taxation.

Accordingly, we affirm the Final Declaratory Judgment.

Osterhaus and Bilbrey, JJ., concur.

      Given our disposition as to the trial court's immunity determination, we need not address its alternative tax exemption conclusion. See Russell , 162 So.3d at 266-67 (noting that there are two reasons why a property would not be subject to tax: (1) the property is immune or (2) the property is exempt and that while immunity occurs when a "taxing government simply lacks power to tax certain property because it is owned by a sovereign government," a tax exemption occurs when "the taxing government, in a manner authorized by the state constitution, enacts a law excluding otherwise taxable properties from the tax, typically because the properties are both used for a tax-exempt purpose and owned by a tax-exempt entity").