text:
    VALLEYCREST LANDSCAPE MAINTENANCE, INC., Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 1D15-3439.
    District Court of Appeal of Florida, First District.
    June 24, 2016.

      J. Riley Davis, Akerman LLP, Tallahassee, for Appellant.
    Jeffrey M. Dikman, Assistant Attorney General, Jonathan L. Williams, Assistant Attorney General, for Appellee.
   OSTERHAUS, J.

ValleyCrest Landscape Maintenance appeals a summary judgment order dismissing its tax refund action against the Florida Department of Revenue. ValleyCrest requested a refund of taxes paid on gasoline used in the lawn care equipment of its landscaping business. It argues that Florida’s taxing scheme doesn’t apply to off-road uses of gasoline and, if it does, that it violates the Equal Protection Clause. The trial court disagreed with ValleyCrest’s arguments, and we affirm.

I.

Section 206.41, Florida Statutes, imposes eight separate taxes on “motor fuel,” which it defines as (1) “all gasoline products,” (2) “any product blended with gasoline,” or (3) “any fuel placed in the storage supply tank of a gasoline-powered motor vehicle.” § 206.01(9), Fla. Stat. The Department “precollects” these taxes for “administrative convenience prior to the sale to the ultimate consumer.” § 206.41(4)(a), Fla. Stat. Section 206.41(4)(c) exempts “[a]ny person who uses any motor fuel for agricultural aquacultural, commercial fishing, or commercial aviation purposes ... no part of which fuel is used in any vehicle or equipment driven or operated upon the public highways of this state.” §§ 206.41(1), (4)(c)(l-4), Fla. Stat. Exempt consumers may request a refund after the tax has been collected.

ValleyCrest is a commercial and residential landscaping company. It buys gasoline and diesel fuel from retail gas stations for its lawn care equipment. The Department collected $36,807.59 in taxes for gasoline ValleyCrest bought for its equipment between January 11 and April 30, 2010. ValleyCrest sought a refund, which the Department denied. Valley-Crest protested, claiming, that it qualifies under the statutory exemption. It filed a tax refund action in the Second Judicial Circuit alleging that the Department’s decision violated Article XII, § 9(c) of the Florida Constitution, § 206.41, Florida Statutes, and the Equal Protection Clause. The trial court granted summary judgment for the Department, and ValleyCrest timely appealed.

II.

We review the summary judgment order de novo. Jax Utilities Mgmt., Inc. v. Hancock Bank, 164 So.3d 1266, 1269 (Fla. 1st DCA 2015). ValleyCrest argues that the Department should refund taxes on gasoline used in lawn care equipment because (1) Article XII, § 9(c) of the Florida Constitution limits the Legislature’s inherent power to tax all gasoline; (2) section 206.41(l)(a) applies the “second gas tax” paid by ValleyCrest only to gasoline that powers motor vehicles; and (3) the Department’s decision to deny a refund violates the Equal Protection Clause. We agree with the trial court that the Department is entitled to judgment as a matter of law on each claim.

First, the Florida Legislature “possesses, as an attribute of sovereignty, the inherent power to impose all taxes not expressly or by clear implication inhibited by State or Federal Constitutions.” Amos v. Mathews, 99 Fla. 1, 126 So. 308, 315 (1930). Article XII, Section 9(c) of the Florida Constitution authorizes “[a ‘Second Gas Tax’] ... of two cents per gallon upon gasoline and other like products of petroleum and an equivalent tax upon other sources of energy used to propel motor vehicles.” Art. XII, § 9(c)(1), Fla. Const, (emphasis added). ValleyCrest argues that this constitutional provision restricts the tax to gasoline used in motor vehicles, thereby excluding lawn equipment and other gas-powered products. The phrase “used to propel motor vehicles,” however, does not limit the scope of the gasoline tax. The doctrine of the last antecedent states that “relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding.” Jacques v. Dep’t of Bus. & Prof. Regulation, 15 So.3d 793, 797 (Fla. 1st DCA 2009) (quoting Kasischke v. State, 991 So.2d 803, 811 (Fla.2008)). The phrase “used to propel motor vehicles,” as a result, applies to the “equivalent tax upon other sources of energy,” not to the tax “upon gasoline and other like products of petroleum.” Art. XII, § 9(c)(1), Fla. Const.

Second, we conclude, for similar reasons, that § 206.41(l)(a) does not restrict the Second Gas Tax to fuel powering motor vehicles on public highways. It simply codifies the tax that the Florida Constitution refers to in Article XII, § 9. A statute’s plain meaning controls “[i]f the language is unambiguous and conveys a clear and definite meaning.” Haddock v. Carmody, 1 So.3d 1133, 1137 (Fla. 1st DCA 2009). Again, the plain language applies to all gasoline and there is no use-based exemption for landscaping equipment. Indeed, ValleyCrest concedes that § 206.41(4)(c) does not offer a tax refund for motor fuel purchased for use in its lawn maintenance equipment, whereas the statute makes refunds available for other uses.

Third, the Department’s decision to deny ValleyCrest a tax refund did not violate the Equal Protection Clause. “Legislatures have especially broad latitude in creating classifications and distinction in tax statutes.” Regan v. Taxation With Representation of Washington, 461 U.S. 540, 547, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). There is no rigid rule of equality of taxation. See Carmichael v. S. Coal & Coke Co., 301 U.S. 495, 509, 57 S.Ct. 868, 81 L.Ed. 1245 (1937). And we presume that the State of Florida’s tax statutes are valid.

When the state legislature, acting within the scope of its authority, undertakes to exert the taxing power, every presumption in favor of the validity of its action is indulged. Only clear and demonstrated usurpation of power will authorize judicial interference with legislative action. In the field of taxation particularly, the legislature possesses great freedom in classification. The burden is on the one attacking the legislative enactment to negate every conceivable basis which might support it.

Agency for Health Care Admin. v. Hameroff, 816 So.2d 1145, 1148 (Fla. 1st DCA 2002) (quoting Coy v. Fla. Birth-Related Neurological Injury Compensation Plan, 595 So.2d 943, 945 (Fla.1992) & Eastern Air Lines, Inc. v. Dep’t of Revenue, 455 So.2d 311 (Fla.1984)). Moreover, states can tax businesses differently with “near impunity, even if they are apparently similar.” Ala. Dep’t of Rev. v. CSX Transp., Inc., — U.S. -, -, 135 S.Ct. 1136, 1142, 191 L.Ed.2d 113 (2015). They just cannot use wholly arbitrary classifications. Hameroff, 816 So.2d at 1148. A statute favoring a certain class is not arbitrary if the distinction is reasonable or based upon a difference in state policy. Id. Indeed, Legislatures may, and regularly do, tax businesses and items differently, which is fine “if there is any conceivable state of facts which would support [the distinction].” Id.

Here, the Department offers non-arbitrary reasons why the Legislature might have exempted some industries from the gasoline tax, but not the landscaping businesses. The work of the agricultural, aquacultural, and commercial fishing industries, for example, feed people. See § 206.41(4)(c), Fla. Stat. (authorizing refunds on the use of motor fuel “for agricultural, aquacultural, commercial fishing, or commercial aviation purposes”). Florida’s tax policy, as a result, reflects an attempt to help people afford food, which broadly benefits everyone. The landscaping business doesn’t offer the same benefit. Likewise, the Department argued that the tax break benefits the aviation industry which, with its shipping, transportation, and tourism-related services, is vital to Florida’s economy. Supporting key industries also amounts to a legitimate, non-arbitrary basis for taxing them differently. Cf, CSX Tmnsp., 135 S.Ct. at 1142 (noting that “as far as the Equal Protection Clause is concerned, [a state may] tax a rail carrier more than a motor carrier, despite the seeming similarity in their lines of business.”).

The Department offered an additional, reasonable administrative justification for not making gasoline tax refunds more broadly available. It argued that refunding the tax paid on gasoline used in all non-automotive contexts would prompt refund requests by every Floridian owning a lawnmower, boat, or other gas-powered machine, potentially crippling the Department’s ability to handle all the incoming requests and receipts. This too states a reasonable rationale for limiting the availability of tax refunds. See, e.g., Armour v. City of Indianapolis, 566 U.S. 673, - -, 132 S.Ct. 2073, 2081-82, 182 L.Ed.2d 998 (2012).

The Legislature remains free, of course, to extend the availability of tax refunds to gasoline used in lawn maintenance equipment, but the Equal Protection Clause doesn’t demand it. And because conceivable, non-arbitrary rationales exist for Florida’s current gasoline tax regime, we affirm the trial court’s decision.

III.

The summary judgment order is AFFIRMED.

ROBERTS, CJ., and MAEAR, J., concur.


source: Caselaw Access Project

author: WETHERELL, J.

license: Public Domain

text:
    John H. ARCHIBALD, Appellant, v. Mark F. BURKE, Appellee.
    No. 1D15-4457.
    District Court of Appeal of Florida, First District.
    July 25, 2016.

      Robert L. Parks and Gabriel A. Garay of The Law Offices of Robert L. Parks, P.L., Miami, for Appellant.
    Allan R. Kelley and Helaine S. Goodner of Fowler White Burnett, P.A., Miami, for Appellee.
   WETHERELL, J.

Appellant suffered severe injuries to his hand while attempting to secure Appellee’s sailboat to a dock at the Jacksonville Landing where the boat made a temporary stop on its voyage from Ontario, Canada to the Bahamas. Appellee was at the helm of the boat when the accident occurred, and both he and Appellant are citizens and residents of Canada.

Several months after the accident, Appellant filed a negligence suit against Ap-pellee in the Duval County circuit court. Appellee filed a motion to dismiss on forum non conveniens grounds, and after a hearing, the trial court granted the motion and dismissed this case. This timely appeal followed.

We find no abuse of discretion in the trial court’s ruling on the motion to dismiss. Accordingly, we affirm the dismissal order.

A trial court is required to engage in a four-step analysis before dismissing a ease on forum non conveniens grounds:

[1] As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption[] against disturbing plaintiffs’ initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of pub- lie interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So.2d 86, 90 (Fla.1996) (quoting Pain v. United Tech. Corp., 637 F.2d 775, 784-85 (D.C.Cir.1980)) (emphasis and alterations in original), reaffirmed and refined by Cortez v. Palace Resorts, Inc., 123 So.3d 1085 (Fla.2013). “The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.” Fla. R. Civ. P. 1.061(a); see also Atl. Coast Line R.R. Co. v. Cameron, 190 So.2d 34, 36 (Fla. 1st DCA 1966) (“The application of the doctrine of forum non-conveniens is discretionary on the part of the trial judge, and the question to be decided by the reviewing court on appeal, is whether there was a clear abuse of discretion on the part of the trial judge.”).

Here, it is undisputed that there is an adequate alternative forum in Canada which possesses jurisdiction over this case (.Kinney/Cortez step 1) and that Appellant can bring his suit in that forum without undue inconvenience or prejudice (step 4). The dispute below—and on appeal—is on steps 2 and 3, the balancing of the private interest and public interest factors.

The private interest factors focus on the parties’ access to the evidence and witnesses, the ease of enforcing judgments, and the practicalities and expenses associated with the action. See Cortez, 123 So.3d at 1092 (citing Kinney, 674 So.2d at 91). The public interest factors focus on “whether the case has a general nexus with the forum.” Id. at 1093 (quoting Kinney, 674 So.2d at 91).

The record reflects that the trial court properly considered both the private interest and public interest factors before dismissing this case. With respect to the private interest factors, the dismissal order specifically found that the convenience of the parties and witnesses and the interests of justice favor litigating this case in Canada because “this action is between Canadian citizens and residents], involves a Canadian flag vessel, and the liability witnesses, the vast majority of damages witnesses, including medical personnel, the insurers of the parties, and a pending related action are located in Ontario, Canada.” With respect to the public interest factors, the trial court stated at the hearing on the motion to dismiss that “it sounds like we have very little nexus to Florida,” and the record supports this finding. The fact that the court did not discuss the public interest factors in the dismissal order does not compel reversal because, as the Fourth District has explained, “[tjhere is no per se rule requiring a remand whenever an order granting or denying dismissal on forum non conveniens grounds fails to explicitly set forth the court’s resolution of the four-step analysis [if] the record is sufficient to review the trial court’s ultimate determination.” Smith Barney, Inc. v. Potter, 725 So.2d 1223, 1225 (Fla. 4th DCA 1999).

Under these circumstances, the trial court did not abuse its discretion in dismissing this case on grounds of forum non conveniens. Accordingly, we affirm the dismissal order.

AFFIRMED.

B.L. THOMAS and WINSOR, JJ., concur.

      . This "strong presumption” does not apply where, as here, the plaintiff is not a United States citizen. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); Cortez v. Palace Resorts, Inc., 123 So.3d 1085, 1095-96 (Fla.2013); Publicidad Vepaco, C.A. v. Mezerhane, 176 So.3d 273, 278 (Fla. 3d DCA 2015); WEG Industrias, S.A. v. Compañía De Seguros Generales Granai, 937 So.2d 248, 254 (Fla. 3d DCA 2006); Mursia Inv. Corp. v. Industria

        Cartonera Dominicana, 847 So.2d 1064, 1067 (Fla. 3d DCA 2003).


author: PER CURIAM.

text:
    Cole D. FAHEY, Appellant, v. Melissa Kay FAHEY, Appellee.
    No. 1D16-910.
    District Court of Appeal of Florida, First District.
    July 25, 2016.

      Cole D. Fahey, pro se, Appellant.
    Melissa Kay Fahey, pro se, Appellee.
   PER CURIAM.

Appellant seeks relief from the trial court’s order that incorporated the findings and conclusions of the magistrate’s recommended report and denied Appellant’s exceptions to the report. For the following reasons, we affirm the trial court’s order.

Background

Appellant and Appellee were married in February 2010 upon discovering that Ap-pellee was pregnant. A child, T.C.F., was born in September. The parties separated in June 2011, and Appellee moved to Georgia with T.C.F. While in Georgia, Appellee reconnected with John Pearce, her ex-boyfriend. Appellee convinced Pearce to take a paternity test, which revealed that he was T.C.F.’s biological father.

Appellant filed for divorce in Santa Rosa County in September 2011. Both Appellant and Appellee were represented by counsel in them divorce proceeding, and upon advice of counsel, the parties voluntarily stipulated that Appellant was not the biological father of T.C.F. The final judgment of dissolution of marriage was entered on March 18, 2012. Paragraph 4 of the judgment incorporated the parties’ stipulation:

Genetic testing has revealed that the Husband is not the biological father of the minor child. The Wife states that John Pierce [sic] is the biological father of the minor child. By stipulation of the parties, the Husband, Cole D. Fahey, shall have no parental lights or responsibilities regarding the minor child, [T.C.F.].

In August 2012, Appellee began seeing Appellant again. During this time, Pearce was seeking to make T.C.F. his legitimate child, and he filed a petition for legitimation and custody in the Georgia Superior Court in November 2012. Meanwhile, Ap-pellee moved back to Florida with the child, and Appellant and Appellee were remarried December 31, 2012.

Appellant then sought to intervene in Pearce’s legitimation and custody lawsuit on the basis that he was the legitimate and legal father of T.C.F. Appellant also moved to dismiss Pearce’s petition on the same grounds, asserting that the court lacked subject-matter jurisdiction. The Georgia court denied both motions. In October 2014, the Georgia court rendered its final order on Pearce’s petition, finding T.C.F. to be Pearce’s legitimate child and awarding him primary physical custody. The order was affirmed by the Georgia appellate court, which held that the stipulation contained in the final judgment of dissolution rendered in Florida had effectively terminated Appellant’s parental rights.

Shortly after the Georgia appellate court issued its opinion, Appellant filed a pro se motion in the Santa Rosa Circuit Court, seeking relief from the final judgment of dissolution of marriage pursuant to rule 1.540(b)(4), Florida Rules of Civil Procedure. Appellant sought to void Paragraph 4 of the judgment that contained the stipulation on the grounds that it purported to terminate his parental rights to T.C.F. without invoking the safeguards of chapter 39, Florida Statutes. Appellee filed a motion in agreement with Appellant’s motion. The motions were heard before a magistrate, and following the hearing, the magistrate’s report recommended that Appellant’s petition for relief be dismissed with prejudice. The magistrate found that the stipulation was not a termination of parental rights, but instead was a stipulation as to Appellant’s non-paternity; therefore, there was no legal basis upon which to void the final judgment of dissolution. The parties’ exceptions to the magistrate’s recommended report were denied by the trial court, and the court issued an order incorporating the report. This appeal followed.

Analysis

A trial court reviews a magistrate’s report to ensure the magistrate’s findings are not clearly erroneous and that the magistrate has not misconstrued the law. Boykin v. Boykin, 843 So.2d 317, 320 (Fla. 1st DCA 2003). Meanwhile, the trial court’s adoption of a magistrate’s report is reviewed for abuse of discretion. Brown v. Brown, 149 So.3d 108, 110 (Fla. 1st DCA 2014).

Under Florida law, parental rights may only be terminated through adoption or the strict procedures set forth in chapter 39, Florida Statutes; thus, an agreement purporting to terminate parental rights is void as a matter of public policy. Casbar v. Dicanio, 666 So.2d 1028, 1029-30 (Fla. 4th DCA 1996). However, stipulations or agreements concerning paternity can validly serve as the basis for a court’s paternity determination. See Daniel v. Daniel, 695 So.2d 1253, 1254 (Fla. 1997) (noting “the parties stipulated that Michael Daniel was not the biological father of the child”); Nevitt v. Bonomo, 53 So.3d 1078, 1080 (Fla. 1st DCA 2010) (noting the trial court found Nevitt to be the biological father of the child “based upon an agreement between Mr. Nevitt and Ms. Bonomo”); L.S.H. v. P.L.H., 739 So.2d 1264, 1265 (Fla. 2d DCA 1999) (“L.S.H. acknowledged that P.L.H. was not the biological father of a child conceived and born during the marriage. While this stipulation is valid, the wife’s waiver of child support cannot bind the court.” (emphasis added)).

Here, as noted by the magistrate, there is no suggestion in the final judgment of dissolution that the parties’ stipulation was a termination of parental rights, and there was also no “Final Judgment of Termination of Parental Rights.” Rather, the final judgment provided that, based on genetic test results showing that Appellant was not the biological father, the parties stipulated that Appellant “shall have no parental rights or responsibilities regarding the minor child.” The stipulation can easily be interpreted as flowing from the discovery that Appellant was not T.C.F.’s biological father and reinforcing the well-settled principle that Appellant had no legal duty to support the child, “who is neither his natural nor his adopted child and for whose care and support he has not contracted.” Daniel, 695 So.2d at 1254 (quoting Albert v. Albert, 415 So.2d 818, 820 (Fla. 2d DCA 1982)).

This non-paternity determination had no effect on T.C.F.’s status as a legitimate child, born during the parties’ valid marriage. As held by the Florida Supreme Court in Daniel, “paternity and legitimacy are related, but nevertheless separate and distinct concepts,” and a child’s legitimacy “will not be affected by a determination of paternity or any orders of support that may follow such a determination.” 695 So.2d at 1254-55. Because T.C.F.’s legitimacy was not contested in the dissolution proceeding, Appellant remained T.C.F.’s “legal father,” and T.C.F. remained legitimate. Id. at 1255. However, while it may have been an error under Florida law for the Georgia court to conclude that Appellant was no longer the child’s legal father, its judgment is entitled to full faith and credit, because the Georgia Court of Appeals found that the trial court did not exceed its subject-matter jurisdiction under Georgia law by legitimating T.C.F. Atwell v. Atwell, 730 So.2d 858, 860 (Fla. 1st DCA 1999). When Appellant attempted to intervene in the Georgia lawsuit, he also moved to dismiss for lack of subject-matter jurisdiction. While Appellant’s jurisdictional argument was ultimately unsuccessful, it was raised and litigated in the Georgia proceeding; therefore, res judicata precludes Appellant from using the same grounds to collaterally attack the Georgia judgment in a Florida court. Id.; Kelley v. Kelley, 147 So.3d 597, 602 (Fla. 4th DCA 2014) (holding that “collateral attacks wilt against judgments involving parties who have had their day in court”).

This court is sensitive to the effect the Georgia court’s final decision has had on Appellant, and acknowledges that, while Appellant entered into the stipulation voluntarily and while represented by counsel, he may not have foreseen the possibility of T.C.F. becoming Pearce’s legitimate child. However, this court cannot conclude that the magistrate’s recommended report was clearly erroneous, or that the trial court abused its discretion in adopting it.

AFFIRMED.

B.L. THOMAS, WINOKUR, and JAY, JJ., concur.


text:
    Ula Kay PEAK, Appellant, v. BAYCARE HEALTH SYSTEM-MEASE DUNEDIN HOSPITAL and Commercial Risk Management, Inc., Appellees.
    No. 1D16-1719.
    District Court of Appeal of Florida, First District.
    July 25, 2016.
    Bill McCabe, Longwood, Bill Dickey, for Appellant.
    Warren K. Sponsler of Sponsler, Bishop, Koren & Hammer, P.A., Tampa, for Appel-lees.
   PER CURIAM.

This court having received Appellees’ confession of error, and based on the Supreme Court of Florida’s recent opinion in Castellanos v. Next Door Co., 192 So.3d 431 (Fla.2016), the order of the Judge of Compensation Claims is REVERSED and this case is REMANDED for proceedings consistent with that opinion.

BILBREY, KELSEY, and M.K. THOMAS, JJ., concur.


text:
    Donald James CRYSTALUS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-2726.
    District Court of Appeal of Florida, First District.
    July 25, 2016.
    Matt Shirk, Public Defender, Elizabeth H. Webb, and Kate Bedell, Assistant Public Defenders, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the April 1, 2016, judgment and sentence in Duval County Circuit Court case number 16-2014-CF-010583-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BILBREY, KELSEY, and M.K. THOMAS, JJ., concur.


author: LEWIS, J.

text:
    Sean HALL, Appellant, v. Nicole LOPEZ, Appellee.
    No. 1D15-0531.
    District Court of Appeal of Florida, First District.
    July 28, 2016.

      Earl M. Johnson, Jr., and Aida M. Ramirez, Jacksonville, for Appellant.
    Christopher W. Wickersham, Jr. of the Law Offices of C.W. Wickersham, Jr. P.A., Jacksonville, for Appellee.
   LEWIS, J.

Appellant, Sean Hall, appeals the trial court’s order denying his motion for section 57.105 attorney’s fees and sanctions. We agree with Appellant that the trial court erred in ruling that attorney’s fees pursuant to section 57.105, Florida Statutes, cannot be awarded in an action for injunction for protection against violence; therefore, we reverse the trial court’s order.

Appellee, Nicole Lopez, filed against Appellant an amended petition for injunction for protection against repeat violence pursuant to section 784.046, Florida Statutes. After the trial court had entered a temporary injunction, Appellant filed a motion for attorney’s fees and sanctions against Appellee and her attorney pursuant to section 57.105, Florida Statutes. Thereafter, Appellee voluntarily dismissed the action, and the trial court retained jurisdiction to consider Appellant’s motion for attorney’s fees. Following a hearing on the legal issue of whether a court may award attorney’s fees under section 57.105 in a repeat violence injunction action, the trial court entered an order denying Appellant’s motion for fees. In its order, the trial court reasoned as follows:

Section 57.105 attorney’s fees may be awarded as a sanction in a variety of types of actions.... Such fees may not, however, be awarded in an action for an injunction for protection against violence. Cisneros v. Cisneros, 831 So.2d 257 (Fla. 3d DCA 2002) (“The trial court was also without jurisdiction to award trial level attorney’s fees pursuant to section 57.105, Florida Statutes, for the domestic violence [injunction] proceeding.”) In support of that proposition, the Cisneros court cited the First District case of Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997).

After discussing Ratigan v. Stone, 947 So.2d 607 (Fla. 3d DCA 2007), the trial court further explained:

The only basis upon [which] the [Appellant’s] Motion for Section 57.105 Attorney’s Fees and Sanctions seeks fees and sanctions is the cited statute. Like section 741.30, Fla. Stat., the domestic violence injunction statute, section 784.046, Fla. Stat., does not authorize an award of attorney’s fees on any basis, and the case law interpreting section 784.046 makes it plain that “nowhere in section 784.046 is there any provision for an award of sanctions against a petitioner who uses the statutory provisions concerning injunctions as a sword rather than a shield.”

This appeal followed.

A trial court’s order on attorney’s fees pursuant to section 57.105(1), Florida Statutes, is generally reviewed for an abuse of discretion; however, such an order is reviewed de novo to the extent it is based on an issue of law. Blue Infiniti, LLC v. Wilson, 170 So.3d 136, 139 (Fla. 4th DCA 2015); see also Wells v. Halmac Dev., Inc., 189 So.3d 1015, 1019 (Fla. 3d DCA 2016).

Section 57.105, Florida Statutes (2013), provides in pertinent part:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
(6) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.

Chapter 741, Florida Statutes, governs marriage and domestic violence, and section 741.30, Florida Statutes (2013), governs domestic violence injunctions. Chapter 784, Florida Statutes, governs assault, battery, and culpable negligence, and section 784.046, Florida Statutes (2013), governs actions for repeat, sexual, and dating violence injunctions.

In Cisneros v. Cisneros, 831 So.2d 257, 258 (Fla. 3d DCA 2002), a case upon which the trial court relied, the Third District reversed an award of trial and appellate attorney’s fees pursuant to section 57.105 for the appellee’s successful litigation and appeal of a domestic violence injunction for the following reasons:

As concerns the appellate attorney’s fees, because no motion for attorney’s fees was made in this court, the trial court was without jurisdiction to award the same.... The trial court was also without jurisdiction to award trial level attorneys fees pursuant to section 57.105, Florida Statutes for the domestic violence proceeding. See Abraham v. Abraham, 700 So.2d 421, 422 (Fla. 3d DCA 1997); Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997).

Cisneros relied on Abraham v. Abraham, 700 So.2d 421, 422 (Fla. 3d DCA 1997), where the Third District concluded that the trial court had abused its discretion in awarding attorney’s fees to the appellee for services her attorneys rendered in a domestic violence proceeding that was filed and litigated before the dissolution proceeding at issue, and in a footnote emphasized the language in section 61.16(1), Florida Statutes, permitting an award of fees related to a proceeding “under this chapter.”

Cisneros also relied on Lewis v. Lewis, 689 So.2d 1271, 1271 (Fla. 1st DCA 1997), where this Court reversed an injunction against domestic violence that awarded custody of the parties’ minor children to the appellee upon concluding that the appellant was improperly denied an adequate hearing pursuant to section 741.30. There, this Court also denied the appel-lee’s request for appellate attorney’s fees made pursuant to Florida Rule of Appellate Procedure 9.400 and Chapter 61, Florida Statutes, because the appellate rule “does not provide independent authority for granting attorney’s fees,” the action involved a Chapter 741 not a Chapter 61 proceeding, and “Chapter 741 contains no provision authorizing the award of attorney’s fees.” Id. at 1272-73. The Court noted, “In denying this request, we are not unaware that many of the public policy reasons for granting attorney’s fees in a chapter 61 proceeding exist in a domestic violence proceeding. This is a matter, however, that should be dealt with by the Legislature rather than the courts.” Id. at 1274; see also Fernandez v. Wright, 111 So.3d 229, 230-31 (Fla. 2d DCA 2013) (finding that the trial court abused its discretion in awarding attorney’s fees to the appellee for work related to the appellant’s petitions for domestic violence injunctions, but affirming the award of fees incurred in the parties’ family law case, because “the statute creating a cause of action for an injunction for protection against domestic violence, § 741.30, Fla. Stat. (2011), does not provide for an award of attorney’s fees”) (citing Baumgartner v. Baumgartner, 693 So.2d 84 (Fla. 2d DCA 1997), and Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000)); Geiger v. Schrader, 926 So.2d 432, 433 (Fla. 1st DCA 2006) (“Appellee has also filed a cross appeal, alleging that the trial court erred in declining to award attorney’s fees against appellant in the injunction order. However, because there is no provision for an award of attorney’s fees in a section 741.30, Florida Statutes, proceeding, this cross appeal is without merit. See Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997) (denying an award of attorney’s fees in a section 741.30, Florida Statutes, proceeding).”); Belmont v. Belmont, 761 So.2d 406, 407 (Fla. 2d DCA 2000) (reversing on appeal from a final judgment of dissolution of marriage the portion of the attorney’s fees award related to a separately filed domestic violence injunction case) (citing Lewis); Baumgartner v. Baumgartner, 693 So.2d 84, 85 (Fla. 2d DCA 1997) (“The cause of action created in section 741.30 does not provide for an award of attorneys’ fees.”). Cf. Bane v. Bane, 775 So.2d 938, 942 n. 4 (Fla.2000) (“[T]he important distinction between these cases [Belmont, Baumgartner, Lewis, and Abraham ] and the present case is that the cases concerning domestic violence injunction proceedings all involved an independent action under chapter 741, and none of the actions were filed under chapter 61 or pertained to enforcement or modification of the final judgment of dissolution. In making this distinction, we note that the issue of whether attorney’s fees are authorized in a domestic violence injunction proceeding is not before us, and therefore we neither approve nor disapprove of these cases.”).

Similarly, in Ratigan v. Stone, another case upon which the trial court relied, the Third District found that the trial court was justified in awarding section 57.105 fees as sanctions in the dissolution proceeding, but erred in awarding such fees in the domestic violence injunction proceeding because there was no statutory authority for the award. 947 So.2d 607, 608 (Fla. 3d DCA 2007) (citing Belmont, Abraham, Baumgartner, and Lewis). Furthermore, in Dudley v. Schmidt, 963 So.2d 297, 297-98 (Fla. 5th DCA 2007), the Fifth District affirmed the trial court’s denial of section 57.105 attorney’s fees relating to a petition for injunction against repeat violence as follows:

There is no basis for the imposition of attorney’s fees in a proceeding for injunction against repeat violence under section 741.30, Florida Statutes (2005). Attorney’s fees cannot be awarded in a domestic violence injunction case. See Bane v. Bane, 775 So.2d 938, 942 n. 4 (Fla.2000) (citing Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000), Abraham v. Abraham, 700 So.2d 421 (Fla. 3d DCA 1997), Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997), and Baumgartner v. Baumgartner, 693 So.2d 84 (Fla. 2d DCA 1997)). See also Ratigan v. Stone, 947 So.2d 607, 608 (Fla. 3d DCA 2007) (holding trial court erred in awarding attorney’s fees in the domestic violence injunction proceeding because there is no statutory authority to award fees as sanctions in such case); Geiger v. Schrader, 926 So.2d 432, 433 (Fla. 1st DCA 2006) (holding there is no provision for an award of attorney’s fees in a section 741.30 proceeding); Cisneros v. Cisneros, 831 So.2d 267, 258 (Fla. 3d DCA 2002) (holding trial court was without jurisdiction to award trial level attorney’s fees pursuant to section 57.105 for domestic violence proceeding).

On the other hand, in Bierlin v. Lucibella, 955 So.2d 1206, 1207 (Fla. 4th DCA 2007), a case involving a Chapter 784 proceeding, the Fourth District reversed the denial of the appellant’s section 57.105 motions for fees. The appellee filed suit against the appellant for an injunction under section 784.046, which the trial court dismissed with prejudice for failure to state a cause of action. Id. While that dismissal was pending on appeal, the trial court denied the appellant’s section 57.105 motions for fees, which was the subject of this second appeal. Id. In the first appeal, the Fourth District affirmed the dismissal and granted the appellant’s motion for section 57.105 appellate attorney’s fees. Id. In the second appeal, the court reversed the denial of the appellant’s section 57.105 motions, explaining:

We conclude that the trial court abused its discretion by finding justiciable issues of fact or law where none were present and denying Bierlin’s section 57.105motions. This case involved more than a dismissal for failure to state a cause of action. Rather, it involved a dismissal for failure to state a cause of action after four nearly identical attempts to do so and without presenting a justiciable issue of fact or law. Moreover, no cause of action could ever be stated in the form which Lucibella employed due to its non-compliance with the clear and mandatory statutory requirements of section 784.046. Additionally, Lucibella never asserted below that he was attempting to change the law to limit the statutory requirements to ex parte injunctions. Furthermore, it is telling that this Court granted section 57.105attorney’s fees on appeal of the dismissal order in Case No. 4D06-86. Therefore, we reverse and remand for the entry of an award of section 57.105 attorney’s fees against Lucibella.

Id. at 1208.

Turning to the case before us, the trial court was correct in observing that section 784.046, like section 741.30, does not authorize an award of attorney’s fees, and Cisneros and Ratigan support its conclusion that attorney’s fees pursuant to section 57.105 may not be awarded in an action for injunction against violence. However, in concluding that the trial court lacked authority to award attorney’s fees pursuant to section 57.105 in the domestic violence proceeding, Cisneros cited Abraham and Lewis and Ratigan relied on Belmont, Baumgartner, Abraham, and Lewis—cases that did not pertain to an award of fees pursuant to section 57.105. As such, those cases are inapposite. Given the absence of a statutory provision providing that an award of attorney’s fees pursuant to section 57.105 is impermissible in a Chapter 784 (or Chapter 741) proceeding, and in light of the language in section 57.105that its provisions apply to civil proceedings/actions and are supplemental to other sanctions/remedies, we hold that an award of attorney’s fees pursuant to section 57.105 is not prohibited in an action under section 784.046. We recognize that this holding conflicts with the Fifth District’s opinion in Dudley and with the Third District’s opinions in Ratigan and Cisneros, and we certify conflict with those decisions.

Accordingly, we REVERSE the trial court’s order, REMAND for a hearing on Appellant’s entitlement to attorney’s fees as sanctions, and CERTIFY CONFLICT.

WETHERELL and RAY, JJ., concur.

      . Although we reject without discussion Appellant’s second argument that the trial court erred in not considering sanctions under its inherent authority, we note that a trial court has a limited inherent authority to assess attorney’s fees against an attorney or party for bad faith conduct, but "if a specific statute or rule applies, the trial court should rely on the applicable rule or statute rather than on inherent authority.” Moakley v. Smallwood, 826 So.2d 221, 224-27 (Fla.2002).


text:
    DEPARTMENT OF REVENUE, Appellant, v. Sinold ERVILUS and Jona Ilysse, Appellee.
    No. 1D15-5695.
    District Court of Appeal of Florida, First District.
    July 28, 2016.
    Pamela Jo Bondi, Attorney General and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Vacated and remanded. See Dep’t of Revenue v. Reyes, 181 So.3d 1270, 1271 (Fla. 1st DCA 2015). In previous cases raising the same issue presented here, we have clarified, with citation to Reyes, that an Administrative Law Judge has subject matter jurisdiction to issue a final support order that departs from the original amount of child support granted in a proposed order. Prior support orders founded on this pre-Reyes misinterpretation of the law likely have adversely impacted both parents and children. Unfortunately, a majority of parties in these child support cases are self-represented and do not have the means or the ability to follow the decisions of this Court, and may lack knowledge of their rights to petition for modification based on a previous error of law, and knowledge of the procedures necessary to secure those rights. In light of Reyes and our clarification of law, we encourage counsel, where appropriate, to provide appropriate notice of rights and procedures to this class of litigants.

BILBREY, KELSEY, and M.K. THOMAS, JJ., concur.


text:
    Edward Arthur SURRATT, Appellant, v. D.J. ANDREWS, Appellee.
    No. 1D16-0574.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2016.
    Edward Arthur Surratt, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Payne v. Jones, 183 So.3d 1130 (Fla. 1st DCA 2015) (dismissing appeal as untimely where trial court lacked authority under rule 1.090(b) to extend the time to seek rehearing).

ROBERTS, C.J., ROWE and MAKAR, JJ., concur.


text:
    Russell Roy SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1127.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2016.
    Russell Roy Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of ground two without further comment. For the reasons discussed below, we reverse and remand the denial of ground one.

In ground one, the appellant asserts that counsel was ineffective for failing to introduce mitigating evidence in support of a request for a downward departure sentence. The appellant does not allege what evidence counsel should have introduced or why it would have led to him receiving a downward departure. However, the appellant is entitled to one opportunity to amend to state a facially sufficient claim. See Spera v. State, 971 So.2d 754 (Fla. 2007) (trial court must give defendant one opportunity to amend facially deficient claims); Thacker v. State, 990 So.2d 1223 (Fla. 1st DCA 2008) (reversing denial of facially insufficient claim that counsel was ineffective for failing to argue for a downward departure for trial court to grant an opportunity to amend pursuant to Spera). Thus, we affirm in part, and reverse and remand in part for the trial court to grant the appellant 60 days to file a facially sufficient claim that counsel was ineffective for failing to introduce evidence in support of a downward departure sentence, if the appellant can do so in good faith.

Affirmed in part, Reversed and Remanded in part with directions.

BILBREY and M.K. THOMAS, JJ., and BEVERLY, THOMAS M„ Associate Judge, concur.


text:
    Charles JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-1642.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2016.
    Charles Johnson, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Jillian H. Reding, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about November 13, 2015, denying petitioner’s motion for postconviction relief in Duval County Circuit Court case number 2009-CF-14226, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

ROBERTS, C.J., ROWE and MAKAR, JJ., concur.


text:
    Andrew McCLENDON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-2476.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2016.
    Andrew McClendon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about March 21, 2016, denying petitioner’s motion for post-conviction relief in Duval County Circuit Court case number 2010-CF-007666, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

ROBERTS, C.J., ROWE and MAKAR, JJ., concur.


text:
    Ryan CHANDLER, former Husband, Appellant, v. Scarlett KIBBEY, former Wife, Appellee.
    No. 1D15-3038.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2016.
    Samuel S. Jacobson of Bledsoe, Jacobson, Schmidt, Wright & Sussman, Jacksonville, for Appellant.
    Renae J. Kenny of the Law Office of Renae J. Kenny, Fleming Island, for Ap-pellee.
   PER CURIAM.

Appellant, Ryan Chandler, appeals a Final Judgment of Dissolution. He raises two issues on appeal, only one of which has merit. We agree with Appellant that reversal of the attorney’s fee award to Ap-pellee, Scarlett Kibbey, is warranted where the trial court failed to make certain findings relating to the reasonableness of the award. See Norman v. Norman, 939 So.2d 240, 241-42 (Fla. 1st DCA 2006) (holding that the trial court’s failure to make the required findings as to the amount of fees pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), constituted reversible error); see also Bradham v. Bradham, 120 So.3d 1274, 1276 (Fla. 1st DCA 2013) (reversing and remanding the attorney’s fee award where the trial court found that the former wife had a need for a contribution to her attorney’s fees and costs, the former husband had an ability to pay, and the former wife submitted an affidavit from her attorney’s law firm attesting to the fees and costs incurred, but there was no indication that the trial court considered the Rowe factors); Ard v. Ard, 765 So.2d 106, 107 (Fla. 1st DCA 2000) (reversing and remanding the attorney’s fee award where there was competent, substantial evidence in the record to support the award, but the trial court failed to make factual findings regarding the total number of hours expended by the former •wife’s attorney, the hourly rate, or the reasonableness of the fee). Accordingly, we reverse the attorney’s fee award and remand for further proceedings. We otherwise affirm the final judgment.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

LEWIS, WETHERELL, and RAY, JJ., concur.


text:
    Lydia Ann RUSH, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D15-4631, 1D15-4791.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2016.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Lydia Ann Rush appeals from the trial court’s order revoking her probation and imposing a prison sentence following the court’s finding that she willfully and substantially violated a condition of her probation. Appellant argues that the evidence does not support a finding that her violation was willful, and the record supports her argument. Furthermore, the State concedes error. See State v. Carter, 835 So.2d 259, 261 (Fla.2002) (“Trial courts must consider each violation on a case-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence.”); Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1st DCA 1996) (‘Where a probationer makes reasonable efforts to comply with a condition of probation, violation of the condition cannot be deemed ‘willful.’ ”). Accordingly, we reverse and remand for Appellant’s probation to be reinstated.

B.L. THOMAS, ROWE, and WINSOR, JJ., concur.


author: SALTER, J. SHEPHERD, J.,

text:
    Jorge Pablo COLLAZO and Maria Edith Collazo, Appellants, v. HSBC BANK USA, N.A., Appellee.
    No. 3D14-2208.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.
    Hector A. Pena, for appellants.
    Albertelli Law and Matthew L. Schulis, Tampa, for appellee.
    Before SHEPHERD, SALTER and EMAS, JJ.
   SALTER, J.

On Motion for Rehearing

Upon consideration of the appellants’ motion for rehearing, we withdraw our opinion issued April 13, 2016, in this appeal, and substitute the following opinion in its place.

Jorge and Maria Collazo appeal a final judgment of foreclosure entered on a defaulted residential mortgage. The appel-lee and mortgagee, HSBC Bank USA, N.A. (“HSBC”), commenced the lawsuit below in January 2014, over five years after (a) the alleged payment default, (b) acceleration of the entire indebtedness in a notice sent to the Collazos in 2008, and (c) the commencement of a previous foreclosure suit in 2008, dismissed without prejudice in 2011 following HSBC’s failure to comply with a court order. The Collazos maintain that the final judgment of foreclosure must be reversed because of the expiration of the five-year statute of limitations applicable to the mortgage note.

This Court’s decision issued on rehearing en banc in the case of Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016), holds that the five-year statute does not bar a second foreclosure suit filed on a subsequent payment default occurring within the five-year statutory period preceding the commencement of the second suit. The Fifth District has reached a similar conclusion in the case of U.S. Bank National Association v. Bartram, 140 So.3d 1007, 1014 (Fla. 5th DCA), review granted, 160 So.3d 892 (Fla.2014) (“Therefore, we conclude that a foreclosure action for default in payments occurring after the order of dismissal in the first foreclosure action is not barred by the statute of limitations found in section 95.11(2)(c), Florida Statutes, provided the subsequent foreclosure action on the subsequent defaults is brought within the limitations period.”).

The record in the present case discloses that HSBC asserted the same payment default date and basis for acceleration in both the 2008 and 2014 complaints, a date over five years preceding the commencement of the 2014 case in the circuit court. As a result, we reverse the final judgment of foreclosure and remand the case for dismissal without prejudice in accordance with this Court’s recent opinion on rehearing en banc in Beauvais.

Reversed and remanded with instructions.

SHEPHERD, J.,

concurring.

I concur in the reversal of the final judgment of foreclosure in this case. I write only to dispel any confusion concerning whether this is a pipeline case under U.S. Bank National Association v. Bartram, 140 So.3d 1007 (Fla. 5th DCA), review granted, 160 So.3d 892 (Fla.2014), or Deutsche Bank Trust Company Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016) (pending review, Case No. SC 16-732). The issue in those cases was whether an adjudication denying acceleration and foreclosure in one circumstance bars a subsequent action to foreclose the same mortgage. Both cases hold that a subsequent foreclosure action is not barred so long as the second action is brought on a subsequent default within the five-year limitation period for bringing the action under section 95.11(2)(c) of the Florida Statutes. Beauvais at 953; Bartram at 1014. The actions before their respective courts in Bartram and Beauvais were both based upon a subsequent default occurring within the five-year statutory period. Beauvais at 940; Bartram at 1009.

In contrast to these two cases, the foreclosure action in the case before us was commenced on January 24, 2014, based on a default in payment alleged to have occurred on April 1, 2008. Counsel for HSBC insisted on trying the case on the basis of that default. After hearing the evidence, the trial court entered final judgment and calculated all amounts due and payable based upon that default date over borrowers’ objections and involuntary dismissal motions. In short, unlike counsel for the lenders in both the Bartram and Beauvais cases, who circumvented the statute of limitations in those cases by alleging a default within the five-year limitation period, counsel for HSBC, when challenged, doubled down on a stale default outside the limitation period. That fact distinguishes the case before us from both Bartram and Beauvais.

It is possible—it is always possible— that a decision in a case pending in our High Court may have some effect on a decision of this court that is not yet final. That is at least theoretically possible in the case before us. However, the validity of our decision in this case is not directly dependent upon the outcome of Bartram or Beauvais in the Florida Supreme Court.

      . In the same motion, the appellees also moved for certification of conflict to the Supreme Court of Florida; that aspect of the motion is denied.

      . HSBC did not respond to an order directing it to file an answer brief, nor has it filed a memorandum of points and authorities in support of its position. Although counsel has since appeared on its behalf, HSBC has not filed a response to the Collazos’ motion for rehearing and for certification.

      . § 95.1 l(2)(c), Fla. Stat. (2014).

      . Our Beauvais decision and the case at hand may also be affected by the Florida Supreme Court's determination of the limitations issues in the pending Bartram case.


text:
    Mervin G. RHODES, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4875
    District Court of Appeal of Florida, First District.
    Opinion filed January 31, 2017
    Rehearing Denied April 6, 2017
    Mervin G. Rhodes, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is dismissed without prejudice to petitioner’s counsel raising these issues in the appeal pending in case number 1D16-5156.

WETHERELL, MAKAR, and KELSEY, JJ„ CONCUR.


author: CASE, JAMES R., Associate Senior Judge.

text:
    WELLS FARGO BANK, N.A., Appellant, v. Lisa G. GUESS and Michael S. Guess, Appellees.
    Case No. 2D15-4222
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2017

      Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellee Lisa G. Guess.
    No appearance for remaining Appellee.
   CASE, JAMES R., Associate Senior Judge.

In this mortgage foreclosure action, Wells Fargo Bank, N.A. (Wells Fargo), appeals an order of dismissal entered in favor of the borrowers, Lisa and Michael Guess. The trial court granted Lisa Guess’s motion for summary judgment on the basis that Wells Fargo failed to comply with section 559.715, Florida Statutes (2012). The notice requirement described in section 559.715, however, is not a condition precedent to foreclosure. Brindise v. U.S. Bank Nat’l Ass’n, 183 So.3d 1215, 1221 (Fla. 2d DCA 2016). Accordingly, we reverse the trial court’s order granting summary judgment and the resulting dismissal and remand this case for further proceedings.

Guess argues that we should nonetheless affirm the trial court’s dismissal order on account of Wells Fargo’s failure to substantially comply with paragraph 22 of the mortgage, which provides, in pertinent part:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure.

We disagree. Wells Fargo filed an affidavit in response to Guess’s motion for summary judgment and attached a default letter that Wells Fargo had mailed to Guess. Although the default letter does not explicitly state that the property might be sold, the letter unambiguously complies with all other requirements of paragraph 22. The letter also states that the Guesses will lose their interest in and rights to the property-in the event of foreclosure. On these facts, we are not persuaded that Wells Fargo failed to substantially comply with the requirements of paragraph 22 of the mortgage. See Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 15 (Fla. 2d DCA 2015).

Reversed and remanded.

VILLANTI, C.J., and NORTHCUTT, J., Concur.


author: VILLANTI, Chief Judge.

text:
    B.G., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5380
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017

      Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Chief Judge.

B.G. seeks reversal of a disposition order in which the trial court withheld adjudication after finding him guilty of resisting an officer without violence, possession of marijuana, and possession of paraphernalia. Because the State failed to prove that the officer who initially detained B.G. was engaged in the lawful execution of a legal duty when he did so, the arrest made during that detention was illegal, and the evidence obtained as a result of that arrest should have been suppressed. Therefore, we must reverse and remand for discharge.

The evidence at trial showed that B.G. was standing with a group of four other juveniles on a sidewalk in a park. An officer on routine patrol saw smoke emanating from the group and smelled the odor of burning marijuana. He testified that he saw a male throw a lit cigarette into the grass nearby, but he could not identify who in the group had discarded the cigarette. Based on these observations, the officer detained all of the members of the group and informed them that he was going to search each of them. The officer testified that each member of the group “smelled equally” like marijuana.

As the officer began to search group members, B.G. repeatedly told the officer that he was not consenting to be searched. In response, the officer told B.G. that he would either consent to be searched or be arrested for obstructing an officer without violence. When B.G. continued to refuse to be searched, the officer arrested him for obstructing without violence. After his arrest, and when it was clear that he was going to be searched, B.G. told the officer that he had marijuana in his pocket. The officer then added charges against B.G. for possession of that marijuana and possession of paraphernalia.

Prior to his disposition hearing, B.G. filed a motion to suppress the marijuana and paraphernalia, arguing that because his initial detention was illegal, his arrest for obstructing an officer was illegal, as was the resulting search incident to his arrest. The trial court denied the motion to suppress. During the disposition hearing, B.G. raised the same argument as a motion for. dismissal under Florida Rule of Juvenile Procedure 8.110(f). This motion was also denied. At the close of evidence, the trial court found B.G, guilty as charged, but withheld adjudication. B.G. then brought this appeal.

The problem with the State’s evidence in this case begins at the very start of the encounter between B.G. and the police. It is hornbook law that an officer must have reasonable suspicion of criminal activity before an individual can be legally detained. See Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008). “For reá-sonable suspicion justifying a detention to exist, ‘the detaining officer[ ] must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” O.B. v. State, 36 So.3d 784, 786 (Fla. 3d DCA 2010) (quoting Tillman v. State, 934 So.2d 1263, 1273 (Fla. 2006)). “Mere suspicion is not enough to support a stop.” Popple v. State, 626 So.2d 185, 186 (Fla. 1993). Instead, “[t]he officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” O.B., 36 So.3d at 787 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal quotations omitted)). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” A.T. v. State, 93 So.3d 1159, 1160 (Fla. 4th DCA 2012) (emphasis added) (quoting Fuentes v. State, 24 So.3d 1231, 1234 (Fla. 4th DCA 2009)). In other words, an officer cannot justify a detention after the fact based on information gathered during the improper detention.

Here, the officer detained the entire group based on the smell of marijuana coming from the group. However, on facts similar to these, this court has held that “[t]he fact that appellant ‘was standing with a group of [individuals] surrounded by the odor of burned marijuana was insufficient to supply more than a “mere suspicion” that [appellant] was in possession of marijuana.’” Id. at 1161 (quoting Robinson v. State, 976 So.2d 1229, 1233 (Fla. 2d DCA 2008)). Simply put, the odor of marijuana emanating from a group cannot, by itself, form the basis of a lawful detention of any particular member of that group. Nor can the fact that each member of the group engulfed in “billowing smoke,” as the officer testified, smelled equally of marijuana. Therefore, when the officer detained the entire group, including B.G., based on the.odor of marijuana coming from the group, the officer was not engaged in the lawful execution of a legal duty, and that detention was illegal. And because the detention was illegal, B.G.’s refusal to be searched could not support a charge of obstructing an officer without violence. See, e.g., Davis, 973 So.2d at 1279; Jay v. State, 731 So.2d 774, 777 (Fla. 4th DCA 1999). Therefore, the trial court should have granted B.G.’s motion for dismissal on the resisting charge.

Turning to the possession charges, it is well known that “[g]iven a valid arrest, a police officer is authorized to conduct a search incident to effecting that arrest.” Sands v. State, 414 So.2d 611, 615 (Fla. 3d DCA 1982). However, “[i]t is the fact of the lawful arrest which establishes the authority to search.” Id (quoting United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)). Therefore, “[i]f an arrest is unlawful, then any search or seizure made incident thereto is invalid, and any evidence developed as a result thereof is inadmissible.” Johnson v. State, 395 So.2d 594, 596 (Fla. 2d DCA 1981); see also Jenkins v. State, 102 So.3d 739, 741 (Fla. 2d DCA 2012) (quoting Baymon v. State, 933 So.2d 1269, 1270 (Fla. 2d DCA 2006)); see generally Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (holding that evidence collected as the result of an illegal search must be suppressed during the trial).

Further, when incriminating statements are made as a direct result of an illegal arrest and the evidence in question is “in some sense the product of illegal government activity,” that evidence should be suppressed. Jackson v. State, 1 So.3d 273, 278 (Fla. 1st DCA 2009) (quoting Nix v. Williams, 467 U.S. 431, [444], 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). The relevant question is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 488, 83 S.Ct. 407 (quoting Maguire, Evidence of Guilt 221 (1959)).

Here, as a direct result of his illegal arrest for obstructing without violence, B.G. admitted to the officer that he had marijuana in his pocket. No independent intervening act or activity occurred that would remove the taint of the illegal arrest from this spontaneous confession. In addition, the evidence was not obtained during a valid search incident to B.G.’s arrest because that arrest was itself illegal. Hence, the trial court should have granted B.G.’s motion to suppress the marijuana and paraphernalia evidence obtained as a result of B.G.’s arrest.

In sum, because the State failed to show that the officer was engaged in the lawful execution of a legal duty when he detained B.G., the trial court erred in denying B.G.’s motion for dismissal on the charge of obstructing without violence. And because B.G.’s arrest for obstructing was illegal, the evidence gathered as a direct result of that arrest should have been suppressed. Accordingly, we reverse and remand for discharge.

Reversed and remanded for discharge.

NORTHCUTT, J„ and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.


author: WINSOR, J.

text:
    Brittany KNIGHT, Petitioner, v. STATE of Florida; Sheriff for Leon County, Florida, Respondents.
    CASE NO. 1D16-4322
    District Court of Appeal of Florida, First District.
    Opinion filed February 21, 2017
    Rehearing Denied April 4, 2017

      Andy Thomas, Public Defender, L. Allen Beard and Carrie McMullen, Assistant Public Defenders, Tallahassee, Benjamin James Stevenson, Pensacola, and Nancy Abudu, Miami, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondents.
   WINSOR, J.

The State charged Brittany Knight with one count of aggravated manslaughter of a child, a first-degree felony. See § 782.07(3), Fla. Stat. (2015). Knight was a daycare worker who, according to the indictment, caused a child’s death “by exposing the child to diphenhydramine and/or placing the child in unsafe sleeping conditions.” She faces a potential thirty-year sentence if convicted. See § 775.082(3)(b)(l), Fla. Stat. (2015).

Although Knight’s bail was originally set at $500,000, the trial court halved it to $250,000 after Knight moved for a reduction. Contending the reduced amount is still too high, Knight petitioned this court for a writ of habeas corpus.

Knight asserts two alternative bases for relief: First, she argues that the $250,000 bail is excessive, in violation of the Eighth Amendment and the Florida Constitution. Separately, she argues that even if the bail is not constitutionally excessive, the trial court violated her procedural and substantive due process rights under the Fourteenth Amendment. Knight cannot succeed on either basis.

I.

Below, Knight argued that $250,000 bail is excessive in light of the thirty years she has lived in the area, her “significant family ties to the community,” her lack of criminal history, and the fact that she remained in town after the child’s death and before her indictment. Knight testified that she had essentially no assets, that she earned only nine dollars per hour at the time of her arrest, and that she had family in the area.

In response, the State noted the seriousness of the crime, and it presented a statement from the victim’s mother (through a letter the victim advocate read into the record without objection). The victim’s mother expressed fear Knight would flee or harm other children if released. She asked the court to keep Knight’s bail “as high as possible.”

After presenting her evidence, Knight asked the court to release her on her own recognizance or, alternatively, to set bail at $10,000. The court rejected those requests but did lower the bail to $250,000. The court also imposed other nonmonetary conditions of release, including that Knight undergo drug testing and have no contact with children other than her own. Knight remains in jail because she is unable to satisfy the monetary condition.

Although a trial court has broad discretion in determining bail, see, e.g., Mehaffie v. Rutherford, 143 So.3d 432, 434 (Fla. 1st DCA 2014), Knight argues with some force that the trial court abused that discretion in this instance. She cites examples of other cases in which appellate courts granted habeas relief, and some of those cases (although not controlling) at least tend to support Knight’s argument that $250,000 is excessive on the facts here. See, e.g., Mesidor v. Neumann, 721 So.2d 810, 811 (Fla. 4th DCA 1998) (granting habeas relief to defendant with community ties and no criminal history, but who faced a potential life sentence after being charged with sexual battery and kidnapping, because “[tjaking into consideration that he was adjudicated indigent and had no property other than an automobile,” $200,000 was too high); see also Robinson v. State, 95 So.3d 437, 438-39 (Fla. 5th DCA 2012) (finding $500,000—which was “well beyond [defendant’s] financial abilities”—excessive, considering defendant’s “ties to the community and employment”). Moreover, the trial court here made no factual findings and offered no explanation of its ruling, making our review more difficult. Compare Sylvester v. State, 175 So.3d 813, 813 (Fla. 5th DCA 2014) (granting petition, ordering further consideration, and requiring “appropriate findings in the order,” after concluding it was unclear whether the trial court considered the proper factors), with Dyson v. Campbell, 921 So.2d 692, 693 (Fla. 1st DCA 2006) (approving bond reduction after concluding the trial court “made a conscientious and reasoned decision concerning the appropriate conditions of pretrial release”).

Nevertheless, Knight cannot satisfy her burden by just showing that $250,000 is excessive; she must also show that any amount over $10,000 would be excessive. This is because she has maintained throughout the case that she could afford no more than $10,000. Her counsel acknowledged at oral argument that any higher amount would leave her in precisely the same situation she now faces—held based on her inability to satisfy the monetary condition. Therefore, unless we conclude that the trial court must set bail at $10,000 or less—a conclusion we cannot accept —ordering a reduced bail would be “at most an idle gesture.” Ex parte Smith, 141 Fla. 434, 193 So. 431, 435 (1940) (denying excessive-bail claim because the record showed defendant “could not make bail in any appreciable amount”).

II.

Knight’s independent, alternative argument is that even if her bail is not excessive, the court still violated her constitutional rights. In Knight’s view, whenever bail is beyond a defendant’s ability to pay (even if not constitutionally excessive), the defendant must be released unless the State can prove—by at least clear and convincing evidence—that no nonmonetary condition could suffice to ensure her appearance at trial. Knight’s counsel acknowledged at oral argument that no Florida decision had adopted such a view, and her request here is indeed a tall order. But we need not consider this sweeping argument because Knight did not present it below.

Although her habeas petition falls within this court’s original jurisdiction, Knight is not excused from the requirement that she first raise her arguments below. See T.L.W. v. Soud, 645 So.2d 1101, 1105 (Fla. 1st DCA 1994) (applying preservation rule to habeas cases challenging detention); see also M.C. v. Medlin, 711 So.2d 44, 44 (Fla. 1st DCA 1998) (citing T.L.W. and denying habeas relief because petitioner “does not show that the arguments in support of release have been previously made in the trial court”). This requirement affords the trial court an opportunity to resolve the issues without this court’s involvement, and—where this court is involved—it provides us “with a record of the parties’ arguments and the trial court’s disposition thereof.” T.L.W., 645 So.2d at 1105.

DENIED.

RAY, J., CONCURS; LEWIS, J., CONCURS IN RESULT WITHOUT OPINION.

       Knight notes in her petition that Florida’s Second Judicial Circuit uses a Uniform Bond Schedule, which includes $25,000 for first-degree felonies. See Pet. at 7 (citing https:// cvweb.clerk.leon.fl.us/public/clerk_services/ officiaLrecords/downloacLdocument.asp? book=3455&page=448). Although Knight cites this to support her claim that $250,000 is excessive (ten times the schedule’s figure), it is noteworthy that by Knight's own admission, she could not satisfy even the scheduled amount.


author: KELSEY, J.

text:
    Samuel M. DEPRIEST and Dorothy Depriest, Appellants, v. Richard GREESON, as Personal Representative of the Estate of Christian W. Schnitzspahn, Appellee.
    CASE NO. 1D16-0807
    District Court of Appeal of Florida, First District.
    Opinion filed February 21, 2017.
    Rehearing Denied April 6, 2017

      Erin Pogue Newell and Roy D. Wasson of Wasson & Associates, Chartered, Miami; Henry Lawrence Perry and H. Les McFatter of Perry & Young, P.A., Panama City, for Appellants.
    Michael W. Kehoe of Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for Appel-lee.
   KELSEY, J.

In the gap between a decedent’s death and the appointment of a personal representative, does Florida’s dangerous instrumentality doctrine make the estate vicariously liable for damages that the decedent’s child allegedly caused while driving the decedent’s car? On the specific facts presented here, which are undisputed, the trial court concluded that the estate is not liable, and granted summary judgment in favor of the personal representative. On these facts, but on reasoning different from that articulated in the final judgment, we affirm.

Use of Decedent’s Car

Decedent and his wife lived with Decedent’s adult daughter in Milton, Florida. His car and its keys were kept at his daughter’s house, and she occasionally drove his car with his permission. There is no evidence that Decedent ever gave his daughter permission to continue to use the car in the event of his death. Decedent’s will made no specific bequest of the car, and named his daughter and stepson as equal co-beneficiaries under the residuary clause. About a month after he died, his daughter was driving his car and came upon the scene of a recent accident in which Appellants, Samuel Depriest and his grandmother, were in a car that had collided head-on with an oncoming vehicle, killing the other driver. Decedent’s daughter collided with Mr. Depriest’s disabled car, allegedly causing damages to Appellants in addition to what they suffered in the original collision.

Appellants initially sued Decedent as owner of the car, before realizing he had died. They amended their complaint, suing Decedent’s estate in addition to Decedent’s daughter (later dropping her from the case). They alleged the estate was vicariously liable for damages caused by the daughter’s use of Decedent’s car because the estate had legal title to the car. They also alleged that the personal representative had prior knowledge of the daughter’s use of the car and implied control over the car, and had impliedly consented to the daughter’s use of the car by failing to take any affirmative action to prevent her from using it. Although the complaints did not articulate a specific species of vicarious liability, ultimately Appellants relied on the dangerous instrumentality doctrine, which they argue on appeal.

The personal representative nominated in Decedent’s will was Decedent’s stepson, who lived in South Carolina. Through discovery, the evidence established that when the stepson was in Florida for Decedent’s funeral, he took the car title to a local Florida probate attorney along with other papers needed to open a probate case. He did not take possession of the car or its keys. There is no evidence that there was any communication between Decedent’s stepson and Decedent’s daughter about her use of Decedent’s car, nor any evidence that the stepson knew the daughter intended to use Decedent’s car or knew that she did use it. Directly to the contrary, he testified that he did not instruct her not to use the car, because he did not know she had ever used it and would not have thought Decedent would have ever given her permission to use it. He knew she had her own car and assumed she would not drive Decedent’s car. Therefore he did not think he had any reason to take the keys or the car itself, or to prohibit her from using the ear. Appellants did not adduce any evidence disputing these facts.

Decedent’s daughter called the stepson and reported the accident the day after it occurred. A probate case for Decedent’s estate was filed four days after the accident, and letters of administration issued twenty days after the accident, appointing Decedent’s stepson as the personal representative. The car was insured, and the insurer totaled it, paying the proceeds of the policy into the estate, where the money was later listed as an asset.

Summary Judgment Standards

A trial court’s order granting summary judgment is reviewed de novo. Cantalupo v. Lewis, 47 So.3d 896, 898 (Fla. 4th DCA 2010) (applying de novo review to affirm summary judgment for defendant in negligent entrustment case); Ruano v. Water Sports of Am., Inc., 578 So.2d 385, 386 (Fla. 3d DCA 1991) (affirming summary judgment where there was no negligent entrustment as a matter of law). In this case the material facts are undisputed, leaving only their legal effect in question, which we review de novo. Cantalupo, 47 So.3d at 898.

Ownership of the Car

Before the trial court and again on appeal, the parties have disputed whether the estate owned Decedent’s car after he died. The trial court concluded that the estate was not the title holder or otherwise the owner when the accident occurred. Although we agree with the trial court’s ultimate disposition of the case, we do not agree that the estate had no legal ownership interest in Decedent’s car. When Decedent died, “in the twinkling of a legal eye,” the car became an asset of his estate. Sharps v. Sharps, 214 So.2d 492, 495 (Fla. 3d DCA 1968) (holding that an uncashed check payable to the decedent became an asset of his estate the instant he died, and his widow would have to prove that it was a gift to her individually in order to obtain the proceeds for herself). See also Mills v. Hamilton, 121 Fla. 435, 163 So. 857, 858 (1935) (“It is well settled that at the death of the owner of any personal property the title thereto vests in his personal representative and during the administration the personal representative is entitled to the possession of the same.”).

Although Decedent’s car was an asset of the estate, it did not belong to anyone individually. Decedent’s will did not bequeath the car to anyone, and his daughter and stepson were co-equal beneficiaries under the residuary clause of the will. Therefore, neither the daughter nor the stepson had any specific right to the car, nor did either of them as individuals have a superior right against the other to prohibit use of the car. The car was an asset of the estate and subject to administration. In re Vettese’s Estate, 421 So.2d 737, 738 (Fla. 4th DCA 1982) (holding that property improperly transferred directly to decedent’s daughters must be returned to the estate for proper administration under the terms of the will and governing law); see also § 731.201(14), Fla. Stat. (2013) (defining “estate” as “the property of a decedent that is subject to administration”); Blechman v. Estate of Blechman, 160 So.3d 152, 157 (Fla. 4th DCA 2015) (“If the subject property will pass either intestate or by way of a will, then it is part of the decedent’s probate estate.”). Ultimate ownership of the car would not be determined until after resolution of claims, taxes, debts, expenses of administration, and other obligations of the estate, if any. It might have ended up being sold to pay the estate’s obligations, no longer belonging to the estate or any beneficiary.

Control of the Car

Clearly, Decedent’s daughter had actual physical control of Decedent’s car. Both the car and its keys were kept at her house, where her late father and stepmother had lived with her. She claimed that Decedent had allowed her to use his car on occasion and that she believed she had the right to use the car after his death. These facts are undisputed. She did not claim or prove, however, that her father had ever given her permission to use the car in the event of his death. He did not give her the car in his will, which made no bequest of the car, naming his daughter and stepson as co-equal beneficiaries under the residuary clause. At the time of the accident, therefore, the daughter had no ownership interest in the car or express permission for post-death use of the car. She simply got the keys and drove the car.

The stepson’s legal status was different. Upon appointment by the court, the stepson in his capacity as personal representative would have the right to control the assets of the estate as authorized by Decedent’s will and the law. § 733.608, Fla. Stat. (“All real and personal property of the decedent, except the protected homestead, within this state and the rents, income, issues, and profits from it shall be assets in the hands of the personal representative ...” for payment of expenses and obligations of the estate, for contribution, advancement, and distribution.). The personal representative’s duties and powers commence upon appointment. § 733.601, Fla. Stat. Under the Probate Code, acts performed by the person appointed, “occurring before appointment and beneficial to the estate,” have the same effect as acts taken after appointment. Id. (emphasis added).

This authority, however, does not impose on the nominated personal representative any statutory duty to act prior to appointment. Richard v. Richard, 193 So.3d 964, 968-69 (Fla. 3d DCA 2016) (affirming that relation-back doctrine codified in section 733.601 reflected intent to avoid imposing legal duties on personal representative prior to appointment and assumption of statutory duties). These authorities establish that a nominated or putative personal representative has the legal authority to act for the benefit of the estate prior to appointment, but is not statutorily required to do so.

In this case, Appellants argued that Decedent’s stepson as nominated but not yet appointed personal representative had the right to control Decedent’s car; and that such authority to control established both an identifiable property interest in the car and implied consent to Decedent’s daughter’s use of the car because he took the title to a probate lawyer shortly after Decedent died but failed to take the keys or the car itself. Based on the authorities cited above, we disagree with the trial court’s reasoning on the question of the stepson’s right to control the car. We nevertheless affirm the entry of summary judgment in favor of the estate.

The facts relevant to this issue are undisputed and do not demonstrate actual knowledge or consent (nor do Appellants argue actual consent). We conclude that because Decedent’s. stepson had no legal duty to prevent Decedent’s daughter from using Decedent’s car, Appellants cannot demonstrate implied consent, which is an essential element of their claim under the dangerous instrumentality doctrine. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla. 1999) (articulating the “tipsy coachman” doctrine that “if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record”).

The Dangerous Instrumentality Doctrine

Florida’s dangerous instrumentality doctrine is a creature of common law that “imposes ... vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.” Aurback v. Gallina, 753 So.2d 60, 62 (Fla. 2000) (citing S. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 638 (1920) (On Petition for Rehearing)). An owner voluntarily entrusts a vehicle to another when it gives that person authority to operate the vehicle by “either express or implied consent.” Id. (citing Hertz Corp. v. Jackson, 617 So.2d 1051, 1053 (Fla. 1993)).

The undisputed facts here do not demonstrate express consent, and Appellants do not argue otherwise. Rather, they rely entirely on implied consent. Most vehicle cases involving implied consent examine factors such as what a car owner knows about the driver’s prior use of the vehicle, the location and accessibility of the keys, the nature of any familial relationship between owner and driver, and the conduct of the parties after an accident occurs. Ming v. Interamerican Car Rental, Inc., 913 So.2d 650, 656 (Fla. 5th DCA 2005). The factors set forth in Ming, however, do not establish implied consent in this case. It is undisputed that Decedent’s stepson did not even know Decedent’s daughter had ever had permission to drive the car, did not think that Decedent would have allowed her to use the ear, and did not know that she had ever driven the car. The relationship between Decedent’s daughter and his stepson, and their locations with one living in Florida and the other in South Carolina, in no way establish consent. After the accident, the only evidence of interaction between the two of them was Decedent’s daughter’s phone call to her stepbrother to inform him of the accident, again demonstrating no knowledge or control by the stepson. The undisputed facts of this case fail to establish the element of consent necessary to maintaining a cause of action under Florida’s dangerous instrumentality doctrine. See, e.g., Dooley v. Harris, 714 So.2d 1206 (Fla. 5th DCA 1998) (affirming summary judgment upon finding no evidence of implied consent in undisputed facts).

Rather than use the Ming factors to establish implied consent, Appellants rely on Decedent’s stepson’s failure to act despite having authority to act—with his knowledge of authority to act demonstrated by his taking the car title to a probate lawyer. We reject this argument as a matter of law. To say that implied consent arises from a nominated personal representative’s failure to act when authority to act exists is to create a duty to act prior to appointment, directly contrary to the Probate Code’s distinction between authority and duty. § 733.601, Fla. Stat.; Richard, 193 So.3d at 968-69, Appellants’ argument could subject nominated personal representatives to liability from which the Legislature intended to shield them in the period after a death and before issuance of letters of administration formally appointing them as personal representatives. The law does not impose such a duty on facts such as those presented here. Accordingly, we affirm the trial court’s entry of summary judgment in favor of the estate.

AFFIRMED.

LEWIS and ROWE, JJ., CONCUR.

       Mr. Depriest was charged with vehicular homicide as a result of the head-on collision that occurred when he was driving the wrong way in the oncoming lane after midnight. The charges were dismissed for lack of the requisite recklessness, but reinstated on appeal. State v. Depriest, 180 So.3d 1099 (Fla. 1st DCA 2015). He was later tried and acquitted.


author: KELLY, Judge.

text:
    David S. CRAMER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-1434
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2017.
    Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   ORDER RELINQUISHING JURISDICTION

KELLY, Judge.

David Cramer appeals from his convictions for possession of a controlled substance, possession of drug paraphernalia, and escape. He argues that he was deprived of due process because the trial court failed to make an independent find-mg that he was competent to proceed to trial. We agree and relinquish jurisdiction to the trial court for further proceedings consistent with this order.

Before trial, two court-appointed experts submitted written reports indicating Cramer was competent. At a hearing that followed, defense counsel stated the experts found Cramer competent and “we are in a position that we are proceeding toward the trial.” The trial court made no oral findings regarding Cramer’s competency. The State offered to prepare a proposed competency order and although the trial court apparently agreed, there is no competency order in the record.

The rules of criminal procedure require the trial court to hold a hearing when the court has reasonable grounds to question the defendant’s competency. Dougherty v. State, 149 So.3d 672, 677 (Fla. 2014) (citing Fla. R. Crim. P. 3.210(b)). A proper competency hearing generally requires testimony from court-appointed expert witnesses, but where the parties and the trial court agree, the court “may decide the issue of competency on the basis of the written reports alone.” Id. at 677-78 (quoting Fowler v. State, 256 So.2d 513, 515 (Fla. 1971)); accord Roman v. State, 163 So.3d 749, 751 (Fla. 2d DCA 2015) (“If the parties agree, the trial court can make its competency determination based solely on experts’ reports.”). However, the written reports are advisory only. Dougherty, 149 So.3d at 678. The trial court is required to make an independent determination of competency. Id. Furthermore, the trial court is not permitted to accept stipulations to the ultimate issue of competency, “even when all the experts have opined that the defendant is competent, as other evidence may indicate incompetence.” Zern v. State, 191 So.3d 962, 964 (Fla. 1st DCA 2016) (citing Dougherty, 149 So.3d at 678).

The record shows the trial court failed to conduct a proper competency hearing. Instead, the trial court accepted a stipulation of competence from defense counsel without making an independent determination that Cramer was competent to proceed to trial. See Dougherty, 149 So.3d at 678. “Because an independent competency finding is a due-process right that cannot be waived once a reason for a competency hearing has surfaced, the trial court fundamentally erred in failing to make such a finding.” Zern, 191 So.3d at 965.

The failure to hold a proper competency hearing or enter a written competency order does not always require vacation of the defendant’s judgment and sentence. See Fowler, 255 So.2d at 515. It is possible to retroactively determine competency provided it can be done in a manner that assures a defendant due process of law. Dougherty, 149 So.3d at 679 (citing Mason v. State, 489 So.2d 734, 737 (Fla. 1986)). Accordingly, we relinquish jurisdiction to the trial court for sixty days from the date of this order and direct the trial court to conduct a new competency hearing following the procedure set forth by the supreme court in Fowler.

CRENSHAW and BLACK, JJ., Concur.


author: Per Curiam.

text:
    Dragana CONNAUGHTON, Individually, and Dragana N. Connaughton, P.A., A Florida Professional Association, Appellants, v. Cristina CONDON, individually, Cristina B. Condon, P.A., a Florida professional association, Jean Lembcke, individually, Susan Wright, individually, Realogy Holding Corp. d/b/a Sotheby’s International Realty, a foreign limited liability company, Sotheby’s International Realty, Inc., a foreign corporation, and Sotheby’s, Inc., a foreign corporation, Appellees.
    No. 4D15-4104
    District Court of Appeal of Florida, Fourth District.
    March 1, 2017
    Kate Watson and J. Stuart Kirwan of The Law Offices of Vastóla & Kirwan, P.A., North Palm Beach, for appellants.
    Beverly Pohl of Broad and Cassel, Fort Lauderdale, and Patricia Lebow and Tara Pellegrino of Broad and Cassel, West Palm Beach, for Appellees C. Condon, Cristina B. Condon, P.A., Jean Lembcke and Susan Wright.
    Anthony P. Strasius and Erin A. McGrath of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Miami, for Appel-lees Realogy Holding Corp., Sotheby’s Int’l Realty, Inc. and Sotheby’s, Inc.
   Per Curiam.

This case involves a claim by a licensed real estate agent, who alleged that she was the procuring cause of the sale of a $27 million residential property in Palm Beach, and that she was wrongfully deprived of a substantial commission on the sale. The plaintiffs, Dragana Connaughton, individually, and Dragana Connaughton, P.A., appeal an order dismissing their amended complaint with prejudice. The trial court dismissed the complaint, finding, among other things, that arbitration was mandatory under the relevant agreement. However, the trial court ruled on the motion to dismiss without the benefit of the complete agreement. Because on this record we are unable to review the propriety of the trial court’s ruling, we vacate the order and remand for further proceedings.

The threshold issue on appeal is whether the trial court erred in dismissing the case based on the arbitration provisions in the Broker-Salesperson Agreement. The arbitration provisions of the Agreement state that any dispute shall be resolved by arbitration “in accordance with the rules, regulations and procedures” of the local Board of Realtors or, if jurisdiction is declined, the American Arbitration Association (“AAA”). The arbitration provisions thus incorporate by reference the “rules, regulations and procedures” of the local Board of Realtors, but those “rules, regulations and procedures” were not provided to the trial court below.

On this record, we cannot determine whether arbitration was mandatory or voluntary under the Agreement. Further, even assuming that arbitration was mandatory under the Agreement, we cannot determine whether the proper remedy was to dismiss the case or to stay the case for arbitration.

We note that one possible reading of the arbitration provisions is that the claim could still be arbitrated by the AAA, even though the local Board of Realtors dismissed the plaintiffs’ request for arbitration as untimely. If the local Board’s dismissal was merely a decision to decline jurisdiction, this would appear to authorize the AAA to arbitrate the dispute under the arbitration provisions of the Agreement. Without the local Board’s rules in the record, it is unclear whether the time-limit that formed the basis for the local Board’s dismissal of the plaintiffs’ arbitration request was intended to operate as a time-bar akin to a statute of limitations, or instead whether it was merely a reason for declining jurisdiction. See Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Conn., Inc., 293 Conn. 582, 980 A.2d 819, 828-33 (2009) (realtors association’s dismissal of a broker’s request for arbitration of a commission dispute for failure to comply with a 180-day filing period did not constitute an arbitration award where the dismissal was a discretionary decision and the timeliness provision did not operate as a statute of limitations).

To be sure, the plaintiffs initially pursued arbitration with the AAA, which apparently declined to hear the claim because some defendants objected that the claim should have been presented to the local Board first. However, if the local Board’s subsequent dismissal of the request for arbitration was merely a decision to decline jurisdiction, this may have triggered the AAA’s authority to arbitrate the dispute, even though the AAA was correct to refuse the plaintiffs’ initial arbitration request.

Accordingly, we vacate the order of dismissal and remand for the parties to present the trial court with the “rules, regulations and procedures” of the local Board of Realtors, and for the trial court to reconsider the motion to dismiss once it has the complete Agreement before it. We leave it to the trial court to decide whether an evidentiary hearing is required on the issue of whether arbitration was mandatory or voluntary. We decline to reach any other grounds for dismissal.

Vacated and Remanded.

Taylor, Conner and Forst, JJ., concur.

      . We view this as the threshold issue because if arbitration is mandatory and there remains an available arbitral forum, the lawsuit should be stayed and the parties should be compelled to arbitrate in that forum. See Curcio v. Sovereign Healthcare of Boynton Beach L.L.C., 8 So.3d 449, 451 (Fla. 4th DCA 2009), Thus, the arbitration issue should be decided before considering other possible grounds for dismissal.

      . The arbitration provisions could be interpreted as meaning that, in any dispute where the jurisdiction of the local Board of Realtors is declined, the dispute shall be resolved by arbitration “in accordance with the rules, regulations and procedures of ... the American Arbitration Association.’’

      .We take judicial notice of our records in a prior appeal, See Connaughton v. Condon, 152 So.3d 587 (Fla. 4th DCA 2014) (per curiam affirmance). The issue we decided in that appeal was narrow, namely, that Connaughton’s declaratory judgment action—wherein she essentially sought to overturn the dismissals of her requests for arbitration by the AAA and the local Board—failed to state a proper basis for declaratory relief. But we did not hold that Connaughton could not return to the AAA for arbitration of the claim following the dismissal by the local Board.