author: ORFINGER, J.

text:
    Robin Henningsen BRUCE, Appellant, v. Jerome Boyd BRUCE, Appellee.
    Case No. 5D15-2136
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    Christine J. Lomas, of LomasLaw, P.A., Winter Park, and Heather Morcroft, Winter Park, for Appellant.
    Christopher J. Shipley, of Shipley Law Firm, Mount Dora, for Appellee.
   ORFINGER, J.

Robin H. Bruce, the former wife, appeals the trial court's final judgment of dissolution of marriage, alleging the trial court erred by failing to award alimony and in determining school designation as well as refusing to enforce a purported marital settlement agreement. We affirm without discussion the trial court's determination that the parties did not enter into a binding marital settlement agreement. However, we find merit in the former wife's remaining two issues.

The former wife and the former husband, Jerome Boyd Bruce, were married for twenty years before separating. They had one minor child at the time the court entered the final judgment. During the marriage, the former wife was the primary caretaker of the parties' children and usually worked in customer service at night and on weekends, earning $10,000-$15,000 per year. The former wife worked these hours because the former husband wanted her to be at home with their three children. She has a college degree, but testified she would need retraining, as her teaching certification was no longer valid. The former wife is hearing impaired, has permanent arthritis, and was, at the time of trial, on medication for a broken ankle, which required a plate and seven screws. She is also a three-time cancer survivor and has herniated discs that are fused as a result of a bike accident.

The former husband is the regional branch manager of a library in Lake County. From 2009 until September 2012, he earned $75,400 annually, but since October 1, 2012, he has been earning $71,635 annually. The former husband testified that the former wife moved out of the marital home and into a rental residence with her new boyfriend because it was cheaper to live with him. The former wife confirmed that she moved out of the marital home in July 2012, explaining that after she broke her ankle, she could no longer afford to take care of the marital home or herself. However, she denied that she was in a supportive relationship with her boyfriend. She admitted that she leases a two-bedroom ($1,145 per month) house with her boyfriend, but indicated she owes him back rent that she was unable to pay due to her injury. She also testified that she pays her own car insurance, gas, and for her son's clothing, along with the water and phone bills, groceries, and pool maintenance. She pays the electric bill, which is in the boyfriend's name, in exchange for the boyfriend covering her part of the rent. The former wife and her boyfriend have no joint bank accounts, own no joint real or personal property, and have no joint investments.

In its final judgment, the trial court found that the former wife had the need for alimony and the former husband had the ability to pay alimony. However, it refused to award alimony because the former "wife has changed the nature of the request for alimony by entering into a 'supportive relationship' since separation." The former wife challenges the trial court's refusal to award her ongoing alimony because she was in a supportive relationship.

The evidence was undisputed that at the time of the final hearing, the former husband was earning $71,000 annually, while the former wife's income was much lower-between $10,000 and $15,000 annually. And, although the trial court found that the former wife has "two college degrees, skills and reasonably good health," it failed to impute any income to her. The evidence was also undisputed that the parties had been married for twenty years. A parties' twenty-year marriage is considered "long-term," raising a rebuttable presumption of entitlement to permanent alimony. See Alcantara v. Alcantara, 15 So.3d 844, 845-47 (Fla. 3d DCA 2009) ; see also § 61.08(4), Fla. Stat. (2015) ("For purposes of determining alimony, there is a rebuttable presumption that a ... long-term marriage is a marriage having a duration of 17 years or greater."). However, the trial court's final judgment does not mention the long-term marriage presumption.

A review of a trial court's decision under section 61.08, Florida's alimony statute, is a mixed question of law and fact that requires a mixed standard of review. Gregory v. Gregory, 128 So.3d 926, 927 (Fla. 5th DCA 2013). We conclude it was not error for the trial court to consider the former wife's allegedly supportive relationship because section 61.08(2)(j), Florida Statutes (2015), permits the trial court to consider "[a]ny other factor necessary to do equity and justice between the parties" when determining a proper award of alimony, and that consideration is dependent upon the circumstances of each particular case. See generally Keyser v. Keyser, 204 So.3d 159, 161-62 (Fla. 1st DCA 2016) (considering evidence regarding alleged supportive relationship during appeal of final judgment of dissolution). However, the trial court was required to make findings regarding the factors outlined in section 61.08(2) before concluding that the former wife was not entitled to alimony.

"A supportive relationship is a relationship that 'takes the financial place of a marriage and necessarily decreases the need of the obligee.' " Overton v. Overton, 34 So.3d 759, 761 (Fla. 1st DCA 2010) (quoting French v. French, 4 So.3d 5, 6 (Fla. 4th DCA 2009) ). Such support is equivalent to a marriage and allows a reduction in alimony. Overton, 34 So.3d at 761 ; French, 4 So.3d at 8. However, financial support alone does not define a supportive relationship. Overton, 34 So.3d at 761 ; see Linstroth v. Dorgan, 2 So.3d 305, 306 (Fla. 4th DCA 2008) ; Buxton v. Buxton, 963 So.2d 950, 955 (Fla. 2d DCA 2007). Instead, the length and nature of the live-in relationship are also significant factors for the trial court to consider. Only those relationships that are substantially equivalent to a remarriage warrant a reduction of alimony. Buxton, 963 So.2d at 955. Thus, if the court decides that a supportive relationship exists, it has the discretion to reduce or eliminate the alimony obligation under section 61.08(2). But this should be done with caution and only when the supportive relationship is equivalent to a marriage.

In the instant case, the trial court did not make any findings regarding the nature and extent of the former wife's supportive relationship, or how that relationship diminished her need, permanently, for alimony. On remand, if the trial court determines that the former wife is in a supportive relationship, it must determine how, and to what extent, that relationship mitigates the former wife's need for alimony. See Keyser, 204 So.3d at 161-62 (holding that trial court abused discretion in denying wife's petition for alimony in divorce action where it was undisputed that husband earned $81,000 annually while wife's income was only $15,000 per year, no income was imputed to wife, there was scant evidence of how much money had been pooled in allegedly supportive relationship, parties' marriage was long-term, such that there was presumption in favor of permanent periodic alimony, and court did not make required factual findings as to whether wife needed alimony or whether husband had ability to pay alimony).

The former wife also contends that competent, substantial evidence did not support the court awarding the former husband the school designation. We review the trial court's judgment for an abuse of discretion. Schwieterman v. Schwieterman, 114 So.3d 984, 987 (Fla. 5th DCA 2012) ; see Beharry v. Drake, 52 So.3d 790, 793 (Fla. 5th DCA 2010) ("A trial court's custody or time sharing determination is reviewed under the abuse of discretion standard of review.").

Here, the parties entered into a parenting plan, but it was silent as to school designation, which both parties requested. At the time of the final hearing, the distance between the child's school and the former wife's home was two miles, allowing the child to take the school bus to and from school. The former husband argued that he should receive the school designation as he is residing in the former marital home, and thus, his residence is more permanent as opposed to the former wife's rental residence. The trial court also designated the former husband as custodian for school designation purposes without explaining its reasoning.

Section 61.13(2)(b)3., Florida Statutes (2015), requires a parenting plan to contain a designation of residence for school attendance. The determination must be made based on "the best interests of the child." Schwieterman, 114 So.3d at 987 (citing § 61.13(3), Fla. Stat. (2010) ). The determination of the best interests of the child is made by evaluating more than twenty factors affecting the welfare and interests of the child. § 61.13(3), Fla. Stat. (2015). While the trial court is not required to address each factor independently, it must, at a minimum, find that its timesharing determination and school designation is in the best interests of the child. Neville v. McKibben, 227 So.3d 1270, 1273 (Fla. 1st DCA 2017). This finding must either be stated on the record or set out in the order. Clark v. Clark, 825 So.2d 1016, 1017 (Fla. 1st DCA 2002).

In the instant case, the record does not reflect that the trial court considered the factors listed in section 61.13 in its determination of school designation. Further, competent, substantial evidence does not support the trial court's award of school designation for the father. Although, admittedly, the parties presented scant evidence on this issue, that limited evidence favored the former wife.

In summary, we affirm the final judgment except as to the denial of permanent alimony and the school designation. On remand, the trial court shall reconsider these two issues and take additional evidence, if necessary. In determining alimony, the court should make specific findings of fact as to all factors listed in section 61.08(2). In determining school designation, the trial court shall use the best interests of the child standard and make appropriate findings.

AFFIRMED in part; REVERSED in part; and REMANDED.

EVANDER and WALLIS, JJ., concur.

      Florida's supportive relationship statute, section 61.14(1)(b), Florida Statutes (2015 ), is not applicable because on its plain terms, it applies only after an award of alimony and the entry of a final judgment dissolving the marriage. See King v. King, 82 So.3d 1124 (Fla. 2d DCA 2012). However, the factors found in section 61.14(1)(b) provide the trial court with a useful framework to determine if, and to what extent, a supportive relationship exists between the former wife and her boyfriend.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Petitioner, v. Lori FELLER, Legal Guardian of the Person and Property of James Mondello, R. Keith Williams, Individually; R. Keith Williams, P.A. ; Christine Mondello; Richard G. Halpern, etc., et al., Respondents.
    Case No. 5D17-2346
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    Jason M. Azzarone and Kari K. Jacobson, of La Cava & Jacobson, P.A., Tampa, for Petitioner.
    O. John Alpizar and Scott Alpizar, of Alpizar Law, LLC, Palm Bay, for Respondent, Lori Feller.
    No Appearance for other Respondents.
   EVANDER, J.

Petitioner seeks a writ of certiorari, challenging an order overruling its work-product and attorney-client privilege objections to the production of parts of its case file. We previously ordered the trial court to conduct an in camera review of the documents originally requested by Respondent, Lori Feller. See Sedgwick Claims Mgmt. Servs., Inc. v. Feller , 163 So.3d 1252 (Fla. 5th DCA 2015).

On remand, the trial court conducted an extensive in camera review of the numerous documents initially at issue. Petitioner now challenges the June 2017 order to the extent it requires Petitioner to produce documents 119, 132, 134, 135, 218-219, 220-221, 231-232, 360-361, 393-396, and 596-597 as designated in the sealed portion of the record.

After conducting our own review of the documents, we conclude that documents 218-219, 231-232, and 596-597 are privileged attorney-client communications. Accordingly, the trial court's order requiring production of said documents constituted a departure from the essential requirements of law. See § 90.502(2), Fla. Stat. (2006) ; see also Genovese v. Provident Life & Accident Ins. Co. , 74 So.3d 1064, 1068 (Fla. 2011) ("[T]he attorney-client privilege, unlike the work-product doctrine, is not concerned with the litigation needs of the opposing party.") We also conclude that documents 360-361 are protected by the work-product doctrine. We deny the petition as to the remaining documents.

PETITION GRANTED, in part; DENIED, in part; and REMANDED.

BERGER and EDWARDS, JJ., concur.


author: WALLIS, J.

text:
    Oshri GAL, Appellant, v. Hella Ayelet GAL, Appellee.
    Case No. 5D17-955
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    Richard J. Feinberg, of Law Office of Richard J Feinberg, Indialantic, and Alan Landman, Melbourne, for Appellant.
    Joe Teague Caruso, of Caruso, Swerbilow & Wald, P.A., Merritt Island, for Appellee.
   WALLIS, J.

Oshri Gal ("Former Husband") appeals the trial court's interlocutory order setting aside his premarital agreement with Hella Ayelet Gal ("Former Wife") and denying his motion for partial summary judgment, which sought enforcement of the agreement in their dissolution proceedings. Because the trial court improperly disregarded the agreement's choice of law provision, requiring application of Israeli law, we reverse and remand for further proceedings.

The parties married on July 28, 2011, in Israel, three days after signing a premarital agreement prepared by Former Husband's attorney. The agreement included a provision stating that Israel's "Spouses Property Relations Law" would govern. In 2015, Former Husband filed a petition for dissolution and moved for partial summary judgment in Florida, requesting the court to adopt and ratify the premarital agreement. Former Wife then moved to set aside the premarital agreement as unconscionable. After a hearing on the parties' motions, the trial court entered a thorough omnibus order denying Former Husband's motion and granting Former Wife's. The court's order stated: "Neither party has sought to challenge the Agreement in Israel, rather all pleadings have been filed in Florida. The Court is applying the law of the state of Florida." The order provided no other analysis concerning the choice-of-law provision and set aside the premarital agreement as unconscionable under Florida law.

Because the parties did not transcribe the hearing below, this court's review is limited to errors present on the face of the order. See Wilcox v. Munoz, 35 So.3d 136, 139 (Fla. 2d DCA 2010). "The party seeking to avoid enforcement of the choice-of-law provision has the burden of demonstrating that the foreign law contravenes public policy." Lamb v. Lamb, 154 So.3d 465, 467 (Fla. 5th DCA 2015) (citing Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 311 (Fla. 2000) ). "Generally, Florida courts enforce contractual choice-of-law provisions unless enforcing the chosen forum's law would contravene strong Florida public policy." Id. Here, Former Wife challenged the application of the premarital agreement and may have met her burden of proving its unconscionability under Florida law. However, neither Former Wife's motion nor the trial court's order includes any discussion about whether Israel's law would contravene strong Florida public policy-the preliminary question in the matter. See id. The language of the order indicates that the trial court applied Florida law merely because both parties filed their pleadings in Florida, where they now reside. This analysis fails to consider Florida public policy, relying instead on convenience. Therefore, we reverse and remand for further proceedings consistent with the premarital agreement, without prejudice to future challenges under the appropriate law.

REVERSED and REMANDED.

TORPY and EDWARDS, JJ., concur.


author: EGAN, ROBERT, Associate Judge,

text:
    PELICAN CREEK HOMEOWNERS, LLC, H.A. Bussey, Katherine Bussey, Bonnie Wilhelm, Personal Representative of the Estate of Andrew Murray, and Herbert L. Pugh and Mabel J. Pugh, Appellants, v. John T. PULVERENTI and Dorothy E. Pulverenti, Appellees.
    Case No. 5D16-4046
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    James R. Dressler, Merritt Island, for Appellants.
    James H. Wyman, of Hinshaw & Culbertson LLP, Coral Gables, and Glenn S. Banner, of Hinshaw & Culbertson LLP, Jacksonville, for Appellees.
   EGAN, ROBERT, Associate Judge,

H.A. and Katherine A. Bussey, Andrew Murray, Herbert L. and Mabel J. Pugh, (collectively "Appellants"), and Pelican Creek Homeowners, LLC ("PCH") appeal the final summary judgment granted in favor of John T. and Dorothy E. Pulverenti ("Appellees"), which denied Appellants' injunction seeking the removal of Appellees' boathouse and dock from Appellants' property. Because Appellants established their ownership of the disputed property, we reverse the trial court's previous denial of their motion for summary judgment seeking injunctive relief, as well as the order granting summary judgment in favor of Appellees. We affirm, without further discussion, both summary judgment orders related to the PCH claims.

The origins of this dispute reach back to 1960 when Arthur J. and Florence W. Gould ("Pelican Developers") platted land they owned within Morningside Heights as Pelican Creek Estates. The plat was divided into thirty lots, with a road down the center of the plat and two canals connecting to the Banana River, one on the north ("canal one") and one on the south ("canal two") margins of the plat. Pelican Developers wrote the following on the dedication plat:

KNOW ALL MEN BY THESE PRESENTS, That the undersigned, being the owners in fee simple of the lands described in the foregoing caption to this plat, do hereby dedicate said lands and plat for the uses and purposes therein expressed and dedicate the Streets, alleys, thoroughfares, parks, canals, and drainage easements shown hereon to the perpetual use of the public.

Pelican Developers also platted a ten-foot drainage easement ("drainage area") along the north side of canal one, on the margin of the plat, and dedicated the easement to Brevard County for maintenance purposes, which the county subsequently relinquished by resolution in 1980. Appellants own adjoining lots numbered six, seven, and eight, which are located on the south side of canal one.

Appellees' property is located in Morningside Heights, on the north side of canal one and the drainage area. Neither Appellees, nor their predecessors in title, have a valid claim to the drainage area or canal one. Appellees' dock and boathouse, which are the subject of this appeal, built in 2006, encroach into the drainage area and canal one.

In 2013, Appellants sued Appellees, alleging ownership of the drainage area and canal one, and seeking an injunction requiring Appellees to remove the dock and boathouse from the property. Appellants also sought to have Appellees enjoined from future trespass on the property. In April 2014, Appellants moved for summary judgment, arguing that Appellants owned the canal and drainage area. Appellees responded that an issue of material fact existed relating to their boundary lines. The trial court denied the motion for summary judgment, which forms one basis for Appellants' appeal.

Two years later, Appellees moved for final summary judgment, arguing they were entitled to judgment as a matter of law because Appellants did not have a property interest in the drainage area and lacked standing. Appellants argued they had title to the drainage area because a public dedication does not convey title to lands, citing Smith v. Horn, 70 Fla. 484, 70 So. 435 (1915), which holds that title to the portion of land subject to a public dedication remains with the dedicator and, when referenced in a plat map, accompanies the conveyance of the abutting lots. Appellants argued the court should deny the motion or alternatively grant summary judgment in their favor in relation to the drainage area. The trial court granted final summary judgment in favor of Appellees on September 20, 2016. This appeal followed.

The parties on appeal treat the September 20, 2016 order granting final summary judgment in favor of Appellees as a final order, subject to immediate appeal. We disagree because that order did not dispose of Appellees' compulsory counterclaims and the case required further judicial labor. See Sieber v. Gil, 193 So.3d 27, 30 (Fla. 3d DCA 2016) (holding a summary judgment order granting partition is not a final appealable order because compulsory counterclaims remained); City of Haines City v. Allen, 509 So.2d 982, 983 (Fla. 2d DCA 1987) ("If the counterclaim is compulsory, the disposition of it or the main claim cannot be appealed until both have been disposed of."). We nevertheless find jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A), which allows review of non-final orders that "grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions."

The trial court's final summary judgment order did not conclusively determine ownership of the disputed property consisting of the drainage area and canal, which we believe is necessary to resolve the issues in this case. The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. See Skelton v. Real Estate Sols. Home Sellers, LLC, 202 So.3d 960, 961 (Fla. 5th DCA 2016) (quoting Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000) ).

In order to determine ownership of the disputed property, this court must first determine whether Pelican Developers' public dedication in 1960 was a "common law dedication" or a "statutory dedication." A common law dedication,

[i]n the absence of clear contrary intent, does not divest the owner of the title to the land, but only subjects the land and the title to the public easement for street purposes; and, if the easement be lawfully surrendered and relinquished, the title to the land remains in the dedicator or his successors in title, discharged of the easement.

Robbins v. White, 52 Fla. 613, 42 So. 841, 843-44 (1907) (emphasis added).

By contrast, a statutory dedication divests the owner of title to the land. § 95.361, Fla. Stat. (2016). A statutory dedication can occur either when the government constructs and maintains a road continuously for four years or when the government maintains a road, though created by a private entity, for seven years. Id. With a statutory dedication, title to the land is vested with the government as follows:

The dedication shall vest all right, title, easement, and appurtenances in and to the road in:
(a) The county, if it is a county road;
(b) The municipality, if it is a municipal street or road; or
(c) The state, if it is a road in the State Highway System or State Park Road System,
Whether or not there is a record of a conveyance, dedication, or appropriation to the public use.

Id. Additionally, filing a map of the dedication and referring to section 95.361 serves as prima facie evidence that the government owns the land. Id.

Here, the dedication on the plat map does not refer to section 95.361, and no other record evidence suggests an intent by Pelican Developers to create a statutory dedication. Therefore, the dedication to the public was a common law dedication, and, as such, title to the property remained with Pelican Developers subject only to the public easement. See Robbins, 42 So. at 843-44.

We next determine whether Pelican Developers, as the dedicator, reserved the land to itself when conveying the abutting lots. When the owner of a tract of land makes a subdivision and includes on the plat a dedication of roads, canals, or walkways for public use, the conveyance of the lots abutting the roads, canals, or walkways includes title to the property subject to the easement, unless expressly reserved by the dedicator. See Smith, 70 So. at 436 ; see also Burns v. McDaniel, 104 Fla. 526, 140 So. 314, 316 (1932) ("[I]n the absence of evidence to the contrary, an abutting lot owner is presumed to own the same to the center of the street."); Travis Co. v. City of Coral Gables, 153 So.2d 750, 751 (Fla. 3d DCA 1963) (applying the same rule to canals).

Additionally, section 177.085, Florida Statutes (2016), which codified the common law rule in 1972, provides:

When any owner of land subdivides the land and dedicates streets, other roadways, alleys or similar strips on the map or plat, and the dedication contains a provision that the reversionary interest in the street, roadway, alley or other similar strip is reserved unto the dedicator or his or her heirs, successors, assigns, or legal representative, or similar language, and thereafter conveys abutting lots or tracts, the conveyance shall carry the reversionary interest in the abutting street to the centerline or other appropriate boundary, unless the owner clearly provides otherwise in the conveyance.

(emphasis added). Further, dedicators had one year after the implementation of section 177.085 to expressly reserve title to the dedicated land or be forever barred. Id.

Here, the conveyances to Appellants and their predecessors did not contain a reservation of the land subject to the public dedication. There is also no record evidence that Pelican Developers asserted a claim after enactment of section 177.085. Therefore, the conveyances to Appellants of the abutting properties included title to the land subject to the public dedication. See Burns, 140 So. at 316.

Finally, we must determine how much of the land subject to public dedication Pelican Developers conveyed to the abutting property owners. Generally, abutting property owners receive title to half of the land subject to public dedication. See id. This rule follows the presumption that, "if the street is abandoned, there is little value for the dedicator to retain title to the street, because the narrow strip of land abutting the lot is not much use for anything other than a street." John Redding, Property Subject to Easements, Dedications, Licenses and Restrictions, Fla. Real Prop. Sales Transactions § 10.21 (8th ed. 2015). However, the potential increase of the lot size of the abutting landowner would add substantial value. Id.

The rule regarding half ownership differs, however, when a public dedication is located on the edge of the plat. Under that scenario, the abutting property owners have title to the full width of the public dedication property. See Caples v. Taliaferro, 144 Fla. 1, 197 So. 861 (1940) (agreeing with the rule but choosing not to apply it to their facts); see also Bonifay v. Dickson, 459 So.2d 1089, 1095 (Fla. 1st DCA 1984) ("[W]here the dedicated street runs along a navigable body of water, the abutting lot owners own the fee title to the entire width of the dedicated land, as well as title to the accretions formed along the street." (citations omitted) ).

Here, the plat for Pelican Creek Estates dedicated canal one to the use of the public and the drainage easement to the county for maintenance purposes, and both easements are on the edge of the plat. Accordingly, Appellants assert that they, as abutting landowners along canal one, have title to both the entire canal and drainage area. By contrast, Appellees contend that, because canal one and the drainage area consist of two separate areas on the plat, the general rule of abutting owners receiving half should apply and, therefore, Appellants have title only to the center of canal one and no ownership interest in the drainage area. We agree with Appellants. To do otherwise would have the undesired effect of leaving the drainage area and the northern half of canal one without an owner. Appellees do not contend on appeal that they own the drainage area, and, as Appellants correctly point out, neither Appellees nor their predecessors in title have ever owned the drainage area.

The exception to the general rule of half ownership also applies here because Appellants' lots abut the dedicated land on the edge of the same plat from which they derive title. Caples, 197 So. at 861. It logically follows that Appellants can be the only contributors to both dedicated parcels because only their property abuts the dedicated land in the Pelican Creek Estates plat, and therefore they are entitled to the entirety. See id. This conclusion also would "[maximize] the utility of the land to society as a whole." Redding, supra, § 10.21 ("By vesting title in the party who derives the greatest benefit from the land underlying the vacated dedication, this rule has the public policy effect of 'maximizing the utility of the land to society as a whole.' "). Appellants would derive the greatest benefit from sole ownership because it would both increase the size of their lots and ensure access to the drainage area for future maintenance of the canal.

We reject Appellees' contention that Appellants have no standing to seek injunctive relief because their interest in the disputed property is merely reversionary in accordance with section 177.085. While section 177.085 refers to the interest of abutting property owners as reversionary, case law has long held that, in the context of a common law dedication, the abutting owners have fee simple subject to the dedication. See Burns, 140 So. at 316 ; Smith, 70 So. at 436.

Because Appellants are the actual owners of the entire canal and drainage area, the trial court should have partially granted their 2014 motion for summary judgment. "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law." Skelton, 202 So.3d at 961 (quoting Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ). Additionally, a trial court may enter partial summary judgment for part of a pleading with the case continuing as to the balance. Berry v. Pyrofax Gas Corp., 121 So.2d 447, 450 (Fla. 1st DCA 1960) ; see also Fla. R. Civ. P. 1.510 ("A party seeking to recover on a claim, counterclaim, cross-claim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party's favor on all or any part thereof ....").

As discussed above, Appellants established that they have title to the canal and the drainage area subject to the dedication to the public, and they demonstrated the nonexistence of any genuine issue of material fact by attaching the relevant deeds and plat maps to their motion. In response, Appellees failed to provide sufficient countervailing evidence to establish an issue of material fact. See Golden Hills Golf & Turf Club, Inc. v. Spitzer, 475 So.2d 254, 254-55 (Fla. 5th DCA 1985) ("[O]nce [the movant] tenders competent evidence to support his motion, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist."). Thus, no genuine issue of fact remained. See Volusia Cty., 760 So.2d at 131. As such, Appellants were entitled to summary judgment as a matter of law because an injunction is the appropriate remedy for a continuous trespass. See Fla. Action Films, Inc. v. Green E. No. 2, Ltd., 29 So.3d 471, 472 (Fla. 3d DCA 2010) (citing Autozone Stores, Inc. v. Ne. Plaza Venture, LLC, 934 So.2d 670, 673 n. 1 (Fla. 2d DCA 2006) (confirming that an injunction is an appropriate remedy for a continuous or repeated trespass) ).

Accordingly, we reverse the trial court's order in that regard, with instructions to issue an order requiring Appellees to remove the dock and boathouse and enjoining them from future trespass. Likewise, we reverse in part the 2016 order granting summary judgment in favor of Appellees against Appellants in relation to the drainage area and canal one, but affirm in part as to PCH's claim.

AFFIRMED in Part; REVERSED in Part; and REMANDED with Instructions.

COHEN, C.J. and EISNAUGLE, J., concur.

      While PCH is a party on appeal, its claim of ownership derives from a deed that was cancelled after the complaint was filed. As such, the entry of summary judgment as to PCH's ownership interest was proper. Further, Appellants do not contest the entry of summary judgment against PCH's claims of ownership on appeal.

      We recognize that section 95.361 references only roads and does not specifically include dedication of a navigable body of water such as canal one. Under the facts of this case, however, we need not determine if the statute would also apply to canal one.


text:
    John ROLLAS, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    Case No. 5D17-1526
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    Robert L. Case, of Stovash, Case & Tingley, P.A., Orlando, for Appellant.
    Dwight O. Slater, Chief Appellate Counsel, Department of Business & Professional Regulation, Tallahassee, for Appellee.
   EVANDER, J.

John Rollas appeals the final order of the Florida Real Estate Commission ("FREC") denying his claim against the Florida Real Estate Recovery Fund ("the Recovery Fund"). Rollas argues FREC incorrectly determined that he did not meet the statutory requirements for an award under the Recovery Fund. We reverse.

Peter Voigt was a licensed real estate broker. In June 2010, he formed Priority One Management Group, LLC ("Priority One"), a residential property management company. Rollas owned a number of single family residential properties, which he utilized as rental properties. In 2012, Voigt approached Rollas, seeking financing. Rollas subsequently invested money in Priority One. In return, Rollas received an interest in Priority One, as well as an agreement that Priority One would provide property management services to Rollas at a substantially reduced fee. In February 2015, Rollas loaned monies to Priority One at zero percent interest to be repaid in monthly installments. In further consideration for the loan, Priority One agreed to provide property management services to Rollas at no cost, and Voigt agreed to personally manage Rollas's properties for a period of time if Priority One failed to do so. Over the next three years, Rollas loaned Priority One additional monies, notwithstanding Voigt's and Priority One's failure to comply with prior agreements. Rollas subsequently became aware that Voigt and Priority One had misappropriated rental proceeds and tenant security deposits that belonged to him. In January 2016, Rollas terminated the property management agreement.

In April 2016, Rollas sued Priority One and Voigt for failure to repay loans, conversion, breach of fiduciary duty, and civil theft. On August 31, 2016, the trial court entered a final judgment in favor of Rollas, finding that Priority One and Voigt, jointly and severally, owed Rollas a total of $206,184.38, as well as three-fold of actual damages on the civil theft claims, based on the following findings of fact:

a. PRIORITY ONE MANAGEMENT GROUP, LLC, and PETER VOIGT, have breached the terms of a promissory note in the principal amount of $60,000, of which the sum of $37,500.00 remains due and owing[.]
b. PRIORITY ONE MANAGEMENT GROUP, LLC, was a property management company owned and operated by PETER VOIGT, in his capacity as a licensed real estate broker.
c. PETER VOIGT agreed with JOHN ROLLAS that PRIORITY ONE MANAGEMENT GROUP, LLC, would manage various real estate properties of JOHN ROLLAS and would collect and maintain security deposits, collect and disburse rental proceeds from tenants on JOHN ROLLAS's properties, and pay third party vendors from the gross rental proceeds to make necessary repairs to the properties.
d. PETER VOIGT collected the security deposits and rent from tenants occupying JOHN ROLLAS's properties but then commingled the security deposits with funds of other managed properties and used the security deposits and rent from JOHN ROLLAS's properties for payment of monthly operating costs of PRIORITY ONE MANAGEMENT GROUP, LLC, to pay other obligations of PRIORITY ONE MANAGEMENT GROUP, LLC, to pay invoices to third party vendors who performed services on properties not owned by JOHN ROLLAS, and to pay PETER VOIGT.
e. PETER VOIGT's actions are a breach of his obligations of loyalty and care to JOHN ROLLAS.
f. PRIORITY ONE MANAGEMENT GROUP, LLC's and PETER VOIGT's actions have converted money owed to JOHN ROLLAS.
g. PRIORITY ONE MANAGEMENT GROUP, LLC, and PETER VOIGT were negligent in the handling of the security deposits and rent proceeds for the properties being managed for JOHN ROLLAS, and in failing to pay the invoices of third party vendors who provided repair services to properties managed for JOHN ROLLAS.
h. The security deposits held by PRIORITY ONE MANAGEMENT GROUP, LLC, for JOHN ROLLAS total $26,801.
i. The third party vendors who provided services on the properties of JOHN ROLLAS but which were not paid from the gross rental proceeds collected by PRIORITY ONE MANAGEMENT GROUP, LLC, total $1,605.13.
j. The net rent proceeds owed to JOHN ROLLAS total $133,932.69 as of February 1, 2016.
k. The actions by PRIORITY ONE MANAGEMENT GROUP, LLC, and PETER VOIGT have been clearly and convincingly demonstrated as violating Section 812.014, Florida Statutes , by PRIORITY ONE MANAGEMENT GROUP, LLC, and PETER VOIGT knowingly obtaining or using the property of JOHN ROLLAS, to wit the security deposits and gross rental proceeds, with an intent to permanently deprive JOHN ROLLAS of the monies or benefits of the monies and PRIORITY ONE MANAGEMENT GROUP, LLC, and PETER VOIGT have appropriated the monies for the use of PETER VOIGT and PRIORITY ONE MANAGEMENT GROUP, LLC. JOHN ROLLAS provided Defendants with the statutory demand letter for Civil Theft under Section 772.11, Florida Statutes , and has satisfied the conditions precedent [to] filing a cause of action for civil relief under Chapters 772 and 812, Florida Statutes.

Thereafter, Rollas filed a Recovery Fund claim with FREC seeking $50,000, the maximum amount recoverable under the statute. See § 475.484(1)(a), Fla. Stat. (2016). His claim was limited to monies owed by Voigt for misappropriated security deposits, rental proceeds, and unpaid vendor services. Section 475.482(1), Florida Statutes, establishes the requirements for a valid claim seeking reimbursement from the Recovery Fund:

(1) The Florida Real Estate Recovery Fund shall be disbursed ... as reimbursement to any person, partnership, or corporation adjudged by a court of competent civil jurisdiction in this state to have suffered monetary damages by reason of any act committed, as part of any real estate brokerage transaction involving real property in this state, by any broker or sales associate who:
(a) Was, at the time the alleged act was committed, the holder of a current, valid, active real estate license issued under this part;
(b) Was neither the seller, buyer, landlord, or tenant in the transaction nor an officer or director of a corporation, a member of a partnership, a member of a limited liability company, or a partner of a limited liability partnership which was the seller, buyer, landlord, or tenant in the transaction; and
(c) Was acting solely in the capacity of a real estate licensee in the transaction;
provided the act was a violation proscribed in section 475.25 or section 475.42.

After an informal hearing, FREC voted to deny Rollas's claim, finding that Voigt was not acting solely in the capacity of a real estate licensee in the transaction. Instead, FREC determined that Voigt was acting in a partnership agreement or joint venture, and the property management agreement was executed as a means for Voigt, acting as a loan debtor, to repay his financial obligations to Rollas. Rollas challenges this determination, contending that he met the statutory requirements for an award under the Recovery Fund. He asserts that his property management agreement with Voigt and Priority One allowed Voigt to obtain possession of Rollas's rental properties' rents and security deposits, which Voigt subsequently converted to his own use. Because Voigt's actions were performed solely in Voigt's capacity as a real estate licensee, Rollas claims that he was entitled to recovery under the Recovery Fund. We agree.

In an appeal from a final administrative action, this court reviews the administrative agency's adjudicative findings of fact for competent, substantial evidence. § 120.68(7)(b), Fla. Stat. (2016) ; see also McCloskey v. Dep't of Fin. Servs. , 115 So.3d 441, 443 (Fla. 5th DCA 2013) ; Keen v. Dep't of Bus. & Prof'l Regulation , 920 So.2d 805, 807 (Fla. 5th DCA 2006). This court will not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. See § 120.68(10), Fla. Stat. However, we review the agency's conclusions of law de novo. Id. § 120.68(7)(d) ; see , e.g. , Abrams v. Seminole Cty. Sch. Bd. , 73 So.3d 285, 294 (Fla. 5th DCA 2011). If this court finds "[t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action," this court will either remand the case for further proceedings consistent with this court's analysis or set aside the agency's decision. § 120.68(7), Fla. Stat.; Citizens of Fla. v. Graham , 213 So.3d 703, 711 (Fla. 2017).

The purpose of the Recovery Fund is to provide reimbursement to persons who suffer monetary losses because of the unscrupulous acts of licensed brokers or salespersons. Hendricks v. Dep't of Bus. & Prof'l Regulation , 183 So.3d 1172, 1173 (Fla. 5th DCA 2016). The provisions governing the application of the Recovery Fund are to be "liberally construed to achieve its intended purpose" and "in favor of granting access to the remedy." Chappell v. Constr. Indus. Recovery Fund , 835 So.2d 339, 340 (Fla. 3d DCA 2003) (referencing Construction Industry Recovery Fund, which similarly provides reimbursement to individuals who, among other things, have recovered judgment based on construction contract but have been unable to collect judgment despite diligent efforts to do so); see also In re Abrass , 268 B.R. 665, 686 (Bankr. M.D. Fla. 2001) ("The [Recovery] Fund is a remedial device through which the FREC can reimburse members of the public who have been defrauded or otherwise monetarily harmed by a member of the real estate profession.").

Here, the uncontroverted evidence established that Rollas's claim met the requirements set forth in section 475.482(1). Specifically, it is uncontroverted that a court of competent jurisdiction entered a final judgment in favor of Rollas and against Voigt and Priority One. That final judgment recited that Rollas had suffered monetary damages in excess of $50,000 as a result of Voigt converting rental proceeds and security deposits that belonged to Rollas. Voigt came into possession of these funds as part of a real estate brokerage transaction-namely, the property management agreement with Rollas, whereby Voigt and Priority One agreed to manage Rollas's rental properties. It is also undisputed that at the time Voigt converted these funds, he was the holder of a current, valid, active real estate license. Furthermore, in the real estate brokerage transactions at issue, Voigt was serving as a property manager, not a seller, buyer, landlord, or tenant.

Finally, we conclude that Voigt was acting solely in the capacity of a real estate licensee at the time he converted the rental proceeds and security deposits belonging to Rollas. The Department argues that the statutory requirement that a broker must have acted solely in the capacity of a licensee exists to preclude recovery in cases like this where the nature of the relationship between the licensee and the would-be claimant is close and multi-faceted. The Department points out that Rollas was both an investor in, and a part owner of, Priority One. We reject the Department's argument because Rollas's claim against the Recovery Fund was not based on losses he incurred as a result of his decision to invest and/or take an ownership interest in Priority One. Rather, his claim was based exclusively on the losses he incurred as a result of Voigt collecting (and subsequently converting) rents and tenant security deposits that came into Voigt's possession pursuant to the property management agreement. Quite simply, Voigt was solely acting as a real estate licensee when he collected those rents and tenant security deposits.

In addition, the fact that Rollas negotiated free or reduced-rate property management services did not transform an otherwise eligible property management transaction into an ineligible transaction. A modified compensation agreement does not change the real estate licensee's obligation to ethically perform the activities related to the licensure. See, e.g. , Llera Realty, Inc. v. Bd. of Real Estate , 385 So.2d 1131, 1133 (Fla. 3d DCA 1980) (observing that creation of Recovery Fund demonstrated Florida's recognition "of the sensitive and privileged position of those engaged in real estate to the public at large").

In conclusion, the evidence established that Voigt was acting solely in his capacity as a real estate licensee when he was managing Rollas's rental properties pursuant to a property management agreement. Due to the property management agreement, Voigt had access to Rollas's rents and security deposits and subsequently converted them for his own use. Accordingly, it was error for FREC to have denied Rollas's claim. On remand, FREC shall enter an order approving Rollas's claim.

REVERSED and REMANDED, WITH INSTRUCTIONS.

SAWAYA and LAMBERT, JJ., concur.


author: PER CURIAM.

text:
    TT OF INDIAN RIVER, INC. d/b/a Mercedes Benz of Melbourne, Appellant, v. Heidi FORTSON and James C. Dorman, Appellees.
    Case No. 5D16-3487
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    Richard A. Sherman, Sr. and James W. Sherman, of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Chris Killer and Todd Bohnenstiehl, of the Law Offices of J. Christopher Norris, Orlando, for Appellant.
    Mark S. Roman and Morgan L. Gaynor, of Roman & Gaynor, Clearwater, Douglas R. Beam, of Douglas R. Beam, P.A., Melbourne, and Celene H. Humphries and Shea T. Moxon, of Brannock & Humphries, Tampa, for Appellee, Heidi Fortson.
    No appearance for Appellee, James C. Dorman.
    ON CONFESSION OF ERROR
   PER CURIAM.

Pursuant to Heidi Fortson's Confession of Error, we reverse the Order on Plaintiff's Amended Motion for Attorney's Fees and remand this matter to the trial court for further proceedings. See Moore v. Leisure Pool Serv., Inc., 412 So.2d 392 (Fla. 5th DCA 1982).

REVERSED and REMANDED.

SAWAYA, ORFINGER, and LAMBERT, JJ., concur.


author: B.L. Thomas, C.J.

text:
    Melvin L. PRYEAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3330
    District Court of Appeal of Florida, First District.
    February 28, 2018 Rehearing Denied May 24, 2018
    Melvin L. Pryear, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant, Melvin L. Pryear, appeals an order denying his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

This case arose from a traffic accident wherein a semi-truck struck Appellant's vehicle, resulting in the death of the Appellant's passenger and damage to the semi-truck. The evidence reflected that Appellant was traveling northbound on the highway when he made a left turn in front of the semi-truck, which was traveling southbound. Both vehicles had a green signal without any turn arrows illuminated.

Testifying at trial were two sisters who witnessed the accident. One sister, Janice Spencer, testified that when she saw Appellant's car start to turn, she said to herself, "Don't go, don't go," because the semi-truck was too close for the oncoming car to safely make the turn. The other sister, Sharon Watson, testified that the semi-truck was moving fast, estimating that the truck appeared to be "doing every bit of [the 40 or 45 miles per hour speed limit] coming through the intersection."

Other eye witnesses testified that Appellant smelled of alcohol and had beer cans in his car. The traffic homicide investigator testified that, hours later, Appellant's eyes were still bloodshot and watery and his speech was slurred. The investigator opined that Appellant was at fault in the accident, because he violated the semi-truck's right-of-way by making a left turn in front of the truck when he should have yielded to oncoming traffic. A highway patrol trooper testified that a blood draw was conducted at the hospital, and a Florida Department of Law Enforcement laboratory analyst testified that she tested the sample. Her report was introduced into evidence, reflecting that Appellant's blood alcohol level was .196 grams per four milliliters of blood, or more than twice the legal limit.

Following the jury trial, Appellant was convicted of DUI manslaughter and DUI with property damage and sentenced to a total of 15 years in prison. His convictions and sentences were affirmed on appeal. Pryear v. State , 185 So.3d 1238 (Fla. 1st DCA 2016). Appellant then filed the instant rule 3.850 motion, raising eight claims, which the lower court summarily denied.

In Appellant's first claim, he argued that his attorney was ineffective for failing to renew his objection to the State's use of a peremptory challenge to strike an African-American juror. Appellant alleged that the State's race-neutral reason for the strike applied equally to a white juror; therefore, it was pretextual as a matter of law.

A claim of ineffective assistance of counsel is governed by Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance, a defendant must allege 1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms, see id. at 690, 104 S.Ct. 2052 ; and 2) that the defendant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different, see id. at 692, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. The defendant must demonstrate a likelihood of a different result which is substantial and not just conceivable. Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). "The prejudice in counsel's deficient performance is assessed based upon its effect on the results at trial, not on its effect on appeal." Strobridge v. State , 1 So.3d 1240, 1241 (Fla. 4th DCA 2009) (citing Carratelli v. State , 961 So.2d 312, 323 (Fla. 2007) ).

A claim of ineffective assistance of counsel arguing counsel's failure to raise a Neil objection is not normally a basis for postconviction relief. Jones v. State , 10 So.3d 140, 141-42 (Fla. 4th DCA 2009).

This is true, because the prejudice prong cannot be proven absent some indication that the jury that actually served was biased. See Yanes v. State , 960 So.2d 834, 835 (Fla. 3d DCA 2007) ; Jenkins v. State , 824 So.2d 977, 984 (Fla. 4th DCA 2002).

Here, even if Appellant could establish that counsel performed deficiently for failing to renew his objection to the strike, he failed to establish that this omission affected the outcome of his trial, and not just the possible outcome of his appeal. Furthermore, the transcripts from voir dire reveal no indication that the juror who actually served was biased, as he joined with the rest of the prospective jurors in indicating that he could be impartial and properly apply the burden of proof and presumption of innocence. Under these circumstances, this claim was properly denied.

In Appellant's second claim, he argued that his attorney should have moved to strike the highway patrol trooper's improper opinion testimony that Appellant was at fault in the accident and that the trooper had "other circumstances" that led him to believe that Appellant was intoxicated. Appellant alleged that this testimony invaded the province of the jury and bolstered the testimony of the State's witnesses who testified that Appellant was impaired at the time of the accident. Appellant asserted that it also suggested that law enforcement had other evidence which was not presented to the jury.

The challenged testimony occurred in the context of cross-examination. Defense counsel asked whether Appellant's bloodshot eyes and the scent of alcohol on his breath provided the basis for the belief that Appellant was intoxicated at the time of the accident. The trooper replied, "He was also at fault for causing a fatality." Defense counsel then asked, "So you're saying [Appellant] was at fault, but the investigation wasn't completed was it?" The trooper responded, "No, but we had the circumstances." The trooper also agreed that he did not witness the accident, and had not yet spoken to witnesses when he came to this conclusion.

As an initial matter, the trooper did not state that he had "other circumstances" to back up his beliefs, but rather, he had "the circumstances," referring to the circumstances of the accident. Thus, it is clear that the trooper did not suggest that law enforcement had evidence suggesting Appellant's culpability that was not presented to the jury.

With regard to the testimony about Appellant's intoxication and whether he was at fault in the accident, even assuming there was a basis for an objection, Appellant failed to show prejudice: Witnesses at the scene of the accident observed beer cans in Appellant's car and smelled alcohol on his person; the traffic homicide investigator testified that Appellant's eyes were bloodshot and watery and his speech was slurred; and a blood draw was conducted, and Appellant's blood alcohol level was determined to be .196. Thus, there is no reasonable probability that the outcome of the trial would have been different if the trooper's testimony regarding Appellant's intoxication had been stricken.

Furthermore, an eye witness indicated that when Appellant's car started to move through the intersection, she was afraid, because the semi-truck was too close for Appellant to safely make the turn. The traffic homicide investigator testified that Appellant was at fault in the accident, because he violated the truck's right-of-way. Given this evidence, combined with the evidence of intoxication, there is no reasonable probability that the outcome of the trial would have been different, even if the trooper's testimony that Appellant was at fault in the accident had been stricken.

In Appellant's third claim, he argued that his attorney should have moved for judgment of acquittal on the basis that the State failed to prove the element of impairment. He alleged that his attorney should have argued the evidence of his blood alcohol level was not properly introduced, as the laboratory analyst who tested the blood sample did not lay a proper predicate for the introduction of the results.

"In moving for a judgment of acquittal, a defendant 'admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.' " Beasley v. State , 774 So.2d 649, 657 (Fla. 2000) (quoting Lynch v. State , 293 So.2d 44, 45 (Fla. 1974) ). "A motion for judgment of acquittal should only be granted if there is no view of the evidence from which a jury could make a finding contrary to that of the moving party." Jeffries v. State , 797 So.2d 573, 580 (Fla. 2001). "In resisting a judgment of acquittal, the state can rely on any evidence adduced, even evidence later determined to have been erroneously admitted." State v. Brockman , 827 So.2d 299, 302 (Fla. 1st DCA 2002). A defendant is not entitled to a judgment of acquittal "merely because evidence that is critical to the court's finding of sufficiency was improperly admitted." Barton v. State , 704 So.2d 569, 573 (Fla. 1st DCA 1997).

Here, when the State introduced the lab report reflecting that Appellant's blood alcohol level was .196, defense counsel indicated that he had no objection. Having failed to object to this evidence, he was not entitled to challenge its admission after the fact in a motion for judgment of acquittal. Furthermore, even if this evidence was not properly admitted, it could be relied upon to deny any such motion. Under these circumstances, this claim was properly denied.

In Appellant's fourth claim, he argued that his attorney was ineffective for failing to object to erroneous jury instructions. He alleged that the trial court should not have instructed the jury on the statutory presumption of impairment. This claim was properly denied for the reasons already discussed in connection with Appellant's third claim.

In Appellant's fifth claim, he argued that his attorney was ineffective for failing to object to an improper closing argument. He alleged that the prosecutor's argument of no reasonable doubt, because the evidence was not contradicted, suggested that the defense had a burden to produce evidence. Improper burden shifting occurs when the State invites the jury to convict for a reason other than the fact that the State has proven its case beyond a reasonable doubt. Scott v. State , 66 So.3d 923, 930 (Fla. 2011) (citing Gore v. State , 719 So.2d 1197, 1200 (Fla. 1998) ). This can occur where the State comments on the defendant's failure to produce evidence that would refute an element of the charge. Id. (citing Jackson v. State , 575 So.2d 181, 188 (Fla. 1991) ).

However, even when the State makes an improper argument, the bar for showing prejudice is high. "If 'improper comments by a prosecutor do not constitute reversible error, the defendant 'cannot demonstrate the prejudice requisite for a successful ineffective assistance of counsel claim' ' relating to counsel's failure to object to the comments." Taylor v. State , 120 So.3d 540, 551 (Fla. 2013) (quoting Lugo v. State , 2 So.3d 1, 17 (Fla. 2008) ). To show entitlement to a new trial based upon improper prosecutorial comments, such comments must:

either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.

Walls v. State , 926 So.2d 1156, 1157 (Fla. 2006) (quoting Spencer v. State , 645 So.2d 377, 383 (Fla. 1994) ).

Here, the prosecutor argued:

So I really must ask you to look at the evidence that's been presented through trial yesterday and today. Apply the law that I've touched upon and you'll be further instructed on, and use your common sense. What that's going to tell you is that the defendant was driving the vehicle, that the defendant had a blood alcohol level of .196 or higher, that he had marijuana in his system at the time he was driving, that he pulled out in front of that truck that caused not only damage to the truck and the Sebring he was driving, but it also caused and contributed to the death of Ms. McCarty. If he doesn't do that, that crash doesn't happen and she doesn't die. He caused or contributed to her death.
That evidence is-won't be contradicted, and because it won't be contradicted, there is no reasonable doubt as far as his guilt . He is guilty as charged for DUI, driving under the influence, manslaughter and driving under the influence, damage to property. Thank you.

(Emphasis added.) Given the evidence discussed above, even assuming, arguendo, that counsel should have objected to this argument, Appellant cannot show that this isolated remark meets the standards discussed above for demonstrating prejudice in this context. The evidence introduced at trial established that Appellant was driving while heavily impaired, when he turned in front of the semi-truck without adequate space, violating the truck's right-of-way. Under these circumstances, there is no indication that the prosecutor's remark deprived Appellant of a fair trial, materially contributed to his conviction, fundamentally tainted the proceedings, or inflamed the jury to reach a more severe verdict than it ordinarily would have rendered. Therefore, this claim was properly denied.

In Appellant's sixth claim, he argued that his attorney was ineffective for failing to call defense witness Amanda Price to testify. Appellant alleged that Ms. Price would have testified that the driver of the semi-truck was speeding and driving erratically at the time of the accident, thus contradicting the truck driver's testimony that he was not speeding, as well as the testimony of the highway patrol trooper and the traffic homicide investigator that Appellant was at fault in the accident.

Even if Ms. Price's testimony could have established that the driver of the semi-truck shared in the blame for the accident, there is no reasonable probability that it would have changed the outcome of the trial. First, her testimony would have been contradicted by that of the traffic homicide investigator, who testified that he estimated the speed of the semi-truck to be between 36 and 39 miles per hour at the time of the accident, and the speed limit was 40 miles per hour. Second, as discussed above, Ms. Watson testified that the semi-truck was moving fast, the speed limit was 40 or 45 miles per hour, and the truck appeared to be "doing every bit of that coming through the intersection." Thus, even Ms. Watson, who was concerned by the speed of the semi-truck at the time of the accident, estimated that it was going the speed limit.

Furthermore, DUI manslaughter requires proof that a defendant operated a vehicle while impaired within the meaning of section 316.193(1), Florida Statutes (2013), and, "by reason of such operation, cause[d] or contribute[d] to causing ... [t]he death of any human being ...." § 316.193(3)(c) 3.a., Fla. Stat. (2013) (emphasis added). "[T]he fact that someone is intoxicated and drives a particular vehicle which causes another person's death should be enough to satisfy the elements of DUI manslaughter." State v. Hubbard , 751 So.2d 552, 563 (Fla. 1999). "The causation element of the amended statute was interpreted by [the Florida Supreme Court] in [ Magaw v. State , 537 So.2d 564, 567 (Fla. 1989),] as not requiring that the conduct of the operator of the vehicle be the sole cause." Hubbard , 751 So.2d at 564 (emphasis in original). "The statute requires only that the operation of the vehicle should have caused the accident. Therefore, any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice." Magaw , 537 So.2d at 567.

Here, even if the driver of the semi-truck was speeding, it would not undermine the evidence that Appellant's actions caused or contributed to the accident. As discussed above, an eye witness testified that she was concerned when she saw Appellant's car start to turn in front of the truck, because he did not have enough time to make the turn. The traffic homicide investigator opined that Appellant was at fault, because he violated the semi-truck's right-of-way when he made the left turn, as they were both moving on a green signal and Appellant should have yielded. There was ample evidence establishing Appellant's intoxication at the time of the accident, including the results of the blood alcohol test, testimony regarding the odor of alcohol on his breath, bloodshot and watery eyes, and slurred speech. Thus, the evidence established that while Appellant was impaired, he turned in front of the truck without adequate time to safely complete the turn, thus violating the semi-truck's right-of-way. Under these circumstances, this claim was properly denied.

In Appellant's seventh claim, he argued that the cumulative effect of his attorney's errors deprived him of a fair trial. This claim was properly denied. For the reasons discussed above, Appellant's individual claims are meritless; therefore, "[b]ecause all of the allegations of individual legal error are without merit, a cumulative error argument based upon these errors must also fail." See Barnhill v. State , 971 So.2d 106, 118 (Fla. 2007).

In Appellant's eighth claim, he argued that the trial court committed fundamental error in instructing the jury on the statutory presumption of impairment, because the blood alcohol evidence was not properly introduced. This claim is not cognizable pursuant to rule 3.850, because it should have been raised on direct appeal. See Fla. R. Crim. P. 3.850(c) ("This rule does not authorize relief based upon grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence."); Johnson v. State , 985 So.2d 1215, 1215 (Fla. 1st DCA 2008) ("[P]rosecutorial misconduct, insufficiency of the evidence ..., and trial court error[ ]

are not cognizable in a collateral postconviction motion."). Furthermore, as discussed in connection with Appellant's third claim, defense counsel did not object to the introduction of the lab report, therefore, the trial court had no basis to disregard the evidence of impairment.

AFFIRMED .

Jay and M.K. Thomas, JJ., concur.

      State v. Neil , 457 So.2d 481, 486-87 (Fla. 1984) (discussing procedures for challenging discriminatory use of peremptory strikes).

      Appellant raised no argument as to the propriety of this testimony.

      The version of the statute being interpreted in those cases required that operating a vehicle while intoxicated "cause" a death, see Hubbard , 751 So.2d at 562 ; Magaw , 537 So.2d at 566, whereas the current version requires operating the vehicle to "cause or contribute to" the victim's death. See § 316.193(3)(c) 3., Fla. Stat. (2013). The current version contains broader language.


text:
    Aaron PIAZZA, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2235
    District Court of Appeal of Florida, First District.
    March 15, 2018 Rehearing Denied May 10, 2018
    Andy Thomas, Public Defender, Jasmine Quintera Russell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Robert Charles Lee, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant agreed to a negotiated plea and entered pleas of guilty to two counts of possession of a firearm by a felon and one count of grand theft of a firearm. The charges were based on the following facts: Appellant, a felon, entered a gun store, where he possessed one rifle, then possessed a handgun, then possessed another rifle, and then stole the handgun he had previously possessed. Originally charged with two counts of possession of a firearm by a felon based on the two possessions of two rifles, the trial court granted a motion to dismiss one of those counts. Appellant then pled guilty to two separate charges based on his possession of the rifle and theft of the firearm.

Appellant now argues on appeal that he cannot be sentenced for possession of a firearm by a felon and also for grand theft of a firearm.

The Florida Supreme Court has directly held that when a criminal defendant agrees to a negotiated plea, he cannot raise a claim based on double jeopardy:

The general rule is that a plea of guilty and subsequent adjudication of guilt precludes a later double jeopardy attack on the conviction and sentence. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) ). There is an exception to this general rule when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.

Novaton v. State, 634 So.2d 607, 609 (Fla. 1994).

Appellant's argument is thus foreclosed under Novaton. Appellant asserted a double jeopardy argument on one count and was successful. Appellant then entered into a negotiated plea, and accepted the benefits of the plea, thus waiving any further argument based on double jeopardy. Appellant argues that, because he is challenging the denial of a motion to dismiss filed before he entered his plea, his double jeopardy argument is preserved. However, "where [the appellant] entered into a bargained plea with the State, we find that [the appellant] waived any double jeopardy claim that may affect either his convictions or his sentences .... " Id. (emphasis added); see also Guynn v. State , 861 So.2d 449, 450 (Fla. 1st DCA 2003) (rejecting state and federal double-jeopardy claims as foreclosed under Novaton , because appellant entered negotiated plea). Here, none of the three factors required under Novaton are present that would justify consideration of Appellant's argument based on double jeopardy.

AFFIRMED.

Wetherell and Winsor, JJ., concur.


text:
    Judith HUSKINS O/B/O Ian HUSKINS, Appellant, v. Jane Alice SAUER O/B/O Alice Elizabeth GLENNON, Appellee.
    Case No. 2D17-1475
    District Court of Appeal of Florida, Second District.
    Opinion filed March 9, 2018
    Christopher E. Cosden, Fort Myers, for Appellant.
    Michael Mummert, Naples, for Appellee.
   PER CURIAM.

We affirm the final judgment for protection against stalking. We write only to clarify that, as the trial court correctly orally ruled, Judith Huskins is not a party to the injunction and is not enjoined in any way.

Affirmed.

NORTHCUTT, MORRIS, and BLACK, JJ., Concur.


author: Per Curiam.

text:
    Deborah DAVISON, Appellant, v. Rebecca BERG, Appellee.
    No. 1D17-1481
    District Court of Appeal of Florida, First District.
    March 22, 2018 Rehearing Denied June 5, 2018
    Jeffrey J. Humphries of Morgan & Morgan, Jacksonville, for Appellant.
    William H. Davis of Dobson, Davis & Smith, Tallahassee, for Appellee.
   Per Curiam.

Deborah Davison, an avid animal enthusiast, volunteered at her local Humane Society to help take care of a dog park. Three years later, Rebecca Berg's canine companion was chasing other dogs at the park when it collided with Davison, resulting in Davison suffering a broken leg and requiring extensive medical care. Davison filed an action against Berg under section 767.01, Florida Statutes (2014), which imposes liability on dog owners for damage their dogs cause to other persons or animals. The trial court granted final summary judgment in favor of Berg on two equally dispositive bases: 1) the signs outside the dog park sufficiently warned Davison of the risks inside, and 2) Davison actually consented to, or assumed the risk of, potential injuries. We agree with Davison that the trial court erred in granting summary judgment, and reverse.

I.

" Section 767.01 is a strict liability statute which has consistently been construed to virtually make an owner the insurer of the dog's conduct." Jones v. Utica Mut. Ins. Co. , 463 So.2d 1153, 1156 (Fla. 1985) (citing Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co. , 358 So.2d 21, 23 (Fla. 1978) ("[T]he Florida Legislature enacted statutes designed to obviate the element of scienter, and make the dog owner the insurer against damage done by his dog." (footnote omitted) ) ).

The only total defense to liability available in a section 767.01 action is for a dog owner to have "displayed in a prominent place on his or her premises a sign easily readable including the words 'Bad Dog.' " § 767.04, Fla. Stat. Berg presented evidence regarding two signs prominently displayed at the dog park entrance, titled "Dog Park Rules." The two signs respectively listed ten and eleven rules for entrance to the dog park. The rules noted that park use is at "the dog owner's risk." Dogs "exhibiting aggressive behavior" were not permitted in the park, and "rough play and chasing" were not allowed if any dogs or owners were uncomfortable with the behavior. One sign added an eleventh rule stating that visitors enter the dog park at their own risk. Davison had seen and understood these signs prior to the incident at issue.

The trial court found that Davison was aware of the two signs, which adequately advised her that she entered the dog park at her own risk. However, the purpose of the statutory sign requirement is to give "genuine, effective and bona fide" notice "that a bad dog is on the premises." Carroll v. Moxley , 241 So.2d 681, 683 (Fla. 1970) ; see also Romfh v. Berman , 56 So.2d 127, 129 (Fla. 1951), overruled in part by Sweet v. Josephson , 173 So.2d 444 (Fla. 1965) ("The sole purpose of the legend was to put one entering the premises on notice that there were dangerous dogs on the place."). "Not every sign, even if seen, is sufficient to put a potential victim on notice of the risk he assumes by being present on the premises." Carroll , 241 So.2d at 683. The signs, which also contain rules regarding digging holes and disposing of dog waste, are not designed to warn visitors not to enter the dog park due to the presence of dangerous dogs. Cf. Romfh , 56 So.2d at 129 (holding that "Beware of Dogs" sign is equivalent to "Bad Dog" sign and precludes liability). We conclude that the trial court erred in finding that the Dog Park Rules signs were sufficiently equivalent to "Bad Dog" signs to preclude liability under section 767.01.

II.

The trial court also found actual consent or assumption of risk on Davison's part, noting that it was "about as strong as we could ever have."

In Kilpatrick v. Sklar , 548 So.2d 215, 216 (Fla. 1989), a police officer climbed over a home's backyard fence while investigating a possible burglary, was startled by the homeowners' four dogs as he crept through the backyard, and "impaled himself in the calf" while attempting to jump back over the fence in retreat. The Florida Supreme Court held that the Fireman's Rule-which precludes policemen and firemen from recovering from a property owner for injuries arising from their professional duties-was inapplicable, noting that "there are no common law defenses to the statutory cause of action based on sections 767.01 and 767.04, Florida Statutes (1981)." Id. at 218. This rule has been applied consistently by the courts, without regard for lack of negligence or other reasonable common law arguments. See Huie v. Wipperfurth , 632 So.2d 1109, 1112 (Fla. 5th DCA 1994), approved , 654 So.2d 116 (Fla. 1995) ; Freire v. Leon , 584 So.2d 98, 99 (Fla. 3d DCA 1991).

The summary judgment evidence demonstrated that Davison was aware that she could be injured in the course of her volunteer work. She signed a volunteer application form acknowledging that she could be exposed to bites, scratches, and other injuries. One year prior to her injury, she watched a dog collide with another individual, which also caused a broken leg. Following that incident, she spoke multiple times with others at the Humane Society about the dangers of being inside the dog park with dogs running around and chasing each other, but continued to volunteer. Finally, moments before her own collision, she noticed dogs chasing each other and stated, "This looks like leg breaking territory. I better get out of here."

While there may be evidence to support the trial court's conclusion that Davison consented to the risk of injury, an actual consent or assumption of the risk defense cannot bar liability. Rather, the Legislature requires these facts to be presented to the jury for a determination of comparative negligence, in accordance with section 767.04.

For these reasons, we reverse the trial court's entry of final summary judgment in favor of Berg.

REVERSED .

Ray, Bilbrey, and Winokur, JJ., concur.

      The defenses found in section 767.04, which concerns dog bites, are equally applicable to "damage" from dogs as set out in section 767.01. See Kilpatrick v. Sklar , 548 So.2d 215, 218 (Fla. 1989).

      We note that all cases cited construed section 767.04 before its 1993 amendment, which replaced the defense of provocation with comparative negligence, and permitted plaintiffs to seek other remedies outside chapter 767. See Ch. 93-13, § 1, at 117, Laws of Fla.; Huie v. Wipperfurth , 632 So.2d 1109, 1112 n.3 (Fla. 5th DCA 1994), approved , 654 So.2d 116 (Fla. 1995). Similarly, section 767.01 was amended in 1994 to clarify which "domestic animals" and "livestock" dog owners could be held liable for. See Ch. 94-339, § 1, at 2433, Laws of Fla. These amendments do not reflect any changes in the strict liability nature of section 767.01 or the defenses available under section 767.04, aside from permitting a broader range of a plaintiff's conduct to be presented to juries as comparative negligence.