author: Kelsey, J.

text:
    Marcy Nicole OVERSTREET, Appellant, v. Dwayne Stanley OVERSTREET, Appellee.
    No. 1D17-4463
    District Court of Appeal of Florida, First District.
    April 25, 2018
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.
    Eduardo J. Mejias of AAA Family Law, LLC, Altamonte Springs, for Appellee.
   Kelsey, J.

In this case of first impression, the mother challenges the trial court's interpretation of section 61.13002(2), Florida Statutes (2016), which allows a military servicemember to designate a family member to exercise that parent's time-sharing while the servicemember is under temporary assignment orders to relocate away from the child. The mother also challenges the facial constitutionality of the statute.

We reverse because we conclude that this section does not apply. We need not reach the constitutional challenge, and decline to do so.

Section 61.13002(2)

Section 61.13002(2) provides as follows:

If a parent is activated, deployed, or temporarily assigned to military service on orders in excess of 90 days and the parent's ability to comply with time-sharing is materially affected as a result, the parent may designate a person or persons to exercise time-sharing with the child on the parent's behalf. The designation shall be limited to a family member, a stepparent, or a relative of the child by marriage. The designation shall be made in writing and provided to the other parent at least 10 working days before the court-ordered period of timesharing commences. The other parent may only object to the appointment of the designee on the basis that the designee's time-sharing visitation is not in the best interests of the child. When unable to reach agreement on the delegation, either parent may request an expedited court hearing for a determination on the designation.

Subsection (7) of the statute provides that "[t]his section does not apply to permanent change of station moves by military personnel, which shall be governed by s. 61.13001." § 61.13002(7), Fla. Stat. In turn, section 61.13001, although entitled "Parental relocation with a child " (emphasis added), defines "relocation" as "a change in the location of the principal residence of a parent or other person," which must be "at least 50 miles from" the previous principal residence and "for at least 60 consecutive days." § 61.13001(1)(e), Fla. Stat.

The 2018 Florida Legislature repealed section 61.13002(2), effective as of July 1, 2018. Ch. 18-69, § 2, Laws of Fla. In its place, the Legislature unanimously created a new part IV of Chapter 61 of the Florida Statutes, entitled "Uniform Deployed Parents Custody and Visitation Act" (UDPCVA). Ch. 18-69, § 1, Laws of Fla. (creating new sections 61.703-773 of the Florida Statutes). As its title indicates, the new statute is a uniform act that fourteen states have adopted. The new uniform act contains a designation provision somewhat similar to that of section 61.13002(2), as follows:

Upon the motion of a deploying parent and in accordance with general law, if it is in the best interest of the child, a court may grant temporary caretaking authority to a nonparent who is an adult family member of the child or an adult who is not a family member with whom the child has a close and substantial relationship. In the case of an adult who is not a family member with whom the child has a close and substantial relationship, the best interest of the child must be established by clear and convincing evidence.

Ch. 18-69, § 1, Laws of Fla. (creating new section 61.739(1) ).

It does not appear that any reported decision addresses whether the designation provision of section 61.13002(2) is constitutional in light of the Florida Supreme Court's decision in Beagle v. Beagle , 678 So.2d 1271 (Fla. 1996), and its progeny.

Beagle holds that the state cannot grant visitation rights to grandparents in an intact family if one of the child's parents objects, without demonstrating a compelling state interest. Id. at 1276-77. Later cases expanded the Beagle holding to preclude grandparent visitation absent a showing of actual harm to the child in families that are non-intact by reason of death, dissolution, and illegitimacy. See Sullivan v. Sapp , 866 So.2d 28, 35-37 (Fla. 2004) (detailing post- Beagle holdings declaring portions of the grandparent visitation statute unconstitutional). The supreme court's consistent rule is that the state can show the requisite compelling interest only by showing that the child will endure actual harm as a result of the lack of grandparent visitation. Id. at 36-37. As the court held in Sullivan , "Clearly, this Court has consistently held all statutes that have attempted to compel visitation or custody with a grandparent based solely on the best interest of the child standard, without the required showing of harm to the child, to be unconstitutional." Id. at 37.

The law requires us to refrain from reaching constitutional questions if we can resolve the case on other grounds. In re Holder , 945 So.2d 1130, 1133 (Fla. 2006). Because we can resolve this case without passing upon the statute's constitutionality, we decline to address the mother's constitutional challenge to section 61.13002(2).

Facts

The parties have an ongoing dissolution proceeding. They also have a daughter who is just over a year old. The father is an active member of the United States Navy, who was stationed in Pensacola when the parties got married. Before the baby was born, the Navy asked the father to indicate his top five picks of where he would like to be stationed next. The parties agreed that they would like to live in Guam, and the Navy assigned the father to Guam for three years. As part of the move, the Navy offered the father an Overseas Housing Allowance and to ship his car to Guam. The parties planned to move to Guam together with the baby. However, the father filed for dissolution before the baby was born. The parties could not agree on timesharing plans. The father went to Guam alone in July 2017.

Pursuant to section 61.13002(2), the father designated his parents, the child's paternal grandparents, to exercise his timesharing while he is stationed in Guam. The mother objected to the designation, expressing concerns about the suitability of the paternal grandparents, which the trial court rejected. The mother also argued that section 61.13002(2) did not apply because the assignment to Guam was a permanent change of station as defined by the Navy, and not a temporary assignment as would be required to invoke section 61.13002(2). The trial court found that the legislature did not define "temporarily assigned," and adopted the father's reasoning that any assignment of a definite duration in excess of ninety days is temporary. The order on appeal finds the assignment to be temporary, and thus finds section 61.13002(2) applicable.

The order finds it in the child's best interests to allow the paternal grandparents to exercise the father's timesharing with the child for so long as the father is stationed in Guam. The best interests articulated in the order are that the child will live with the father in the paternal grandparents' home when the father comes back to the States, and thus the child's reunification with the father will be easier if the child has been in that home and with the other adults who live there. The trial court also found it in the child's best interests to develop a relationship with her paternal extended family as well as with the mother and her family. The trial court made no findings as to whether these goals could be achieved through other means.

Permanent Change of Station

We agree with the mother that the father's three-year assignment to Guam was a permanent change of station within the meaning of section 61.13002(7), rendering section 61.13002 inapplicable. See § 61.13002(7), Fla. Stat. ("This section does not apply to permanent change of station moves by military personnel, which shall be governed by s. 61.13001."). We therefore reverse this provision of the order and remand for further proceedings under section 61.13001.

When asked to interpret a statute, the court's guiding principle is legislative intent. Diamond Aircraft Indus., Inc. v. Horowitch , 107 So.3d 362, 367 (Fla. 2013). To determine legislative intent, we look first to the plain meaning of the statute's text, which we may discern from a dictionary. Green v. State , 604 So.2d 471, 473 (Fla. 1992). We should use the plain and ordinary meanings of words unless they lead to an unreasonable result. State v. Burris , 875 So.2d 408, 414 (Fla. 2004). However, the court should prefer the technical sense of a word over the ordinary sense if the text of the statute suggests that the words are used in a technical sense. Lewis v. Leon Cty. , 73 So.3d 151, 153 (Fla. 2011). Finally, "if a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute ..., the Court will examine the entire act ... in order to ascertain the overall legislative intent." E.A.R. v. State , 4 So.3d 614, 629 (Fla. 2009) (quoting Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC , 986 So.2d 1260, 1265-66 (Fla. 2008) ). We review questions of statutory construction de novo. Green , 604 So.2d at 473 ; Lewis , 73 So.3d at 153.

We hold that the trial court misinterpreted the phrase "temporarily assigned to military service" for two reasons. First, the context demands that we apply technical definitions of the different types of military service rather than the ordinary dictionary definitions. Second, the lower court's construction of subsection (2) is inconsistent with subsection (7).

First, the context of the statute impels us to use the military's technical definitions for "temporarily assigned" and "permanent change of station." The title of this section clearly states that it relates to members of the armed forces. See § 61.13002 ("Temporary time-sharing modification and child support modification due to military service " (emphasis added) ). In particular, the statute relates to types of military service assignments, and the military provides technical definitions for these terms. U.S. Dep't of Defense, Dictionary of Military and Associated Terms 7, 68, 86 (March 2018) (defining "deployment" and "activation"). Because the statute's applicability is based on the type of military service assignment the parent is given, it is logical to conclude that the legislature intended to use the same definitions the military uses. Those definitions support the mother's arguments.

The Navy provides specific definitions for Permanent Change of Station (PCS) and Temporary Duty (TEMDU). A PCS is "the assignment ... of a member ... to a different [permanent duty station] under a competent travel order that does not specify the duty as temporary, provide for further assignment to a new PDS, or direct return to the old PDS." Naval Military Personnel Manual 1320-300, at 3 (2014 ed.). When moving a servicemember to a new permanent duty station overseas, the government will pay to ship a servicemember's personal automobile. U.S. Dep't of Defense, The Joint Travel Regulations 5E-2 (Apr. 1, 2018). The government also provides an Overseas Housing Allowance to servicemembers stationed overseas. U.S. Dep't of Defense, Overseas Housing Allowance (Feb. 2, 2018). Finally, the military allows for the servicemember's family to accompany him or her to most permanent duty stations. See The Joint Travel Regulations 5B-6.

In contrast, the Navy defines TEMDU as "duty at one or more locations, other than the permanent duty station (PDS), under orders which do not provide, at least initially, for return to the starting point." Id. 1320-200, at 1. TEMDU cannot be in excess of 180 days unless specially approved, and members on TEMDU resume regular duty upon completion of that assignment. Id. 1320-300, at 5.

The second reason for favoring the use of the military's definitions of "temporarily assigned" and "permanent change of station" is that it makes sense of the statute read as a whole. The statute applies to three types of short duration military service, at the end of which the service member will normally return to his or her original location; but the statute does not apply to longer duration assignments where there is no guarantee that the service member will return to his or her original location. The legislature intended that the statute be applied to situations where the interruption in the service member's ability to exercise his or her timesharing would resume upon completion of the assignment. This intent is not clear until one reads through to subsection (7), where the statute clearly states that its provisions do not apply when a parent is relocating due to a permanent change in station.

The father's interpretation does not make sense of the entire section. If "temporarily assigned" meant merely assigned for some definite period of time, the statute could allow one parent to unilaterally effect a permanent change to the timesharing plan. If the Navy issued the father orders that set the length of his stay in Guam to twenty years, the statute as the father interprets it would allow him to designate his family members to exercise his timesharing rights for his daughter's entire childhood. This interpretation also makes little sense of subsection (7). We reject this interpretation as unreasonable and contrary to the Legislature's intent as expressed in the plain language of the statute.

We find that the legislature used the term "temporarily assigned" to mean a duty assignment of up to six months away from the member's permanent duty station that provides for the member's next duty assignment, whether that be resuming duty at the former PDS, beginning duty at a new PDS, or further temporary duty. See The Joint Travel Regulations , App. A, at 34. The father's assignment satisfies the military definition of a "permanent change of station" as used in section 61.13002(7), making section 61.13001 controlling. We therefore reverse this provision of the trial court's order and remand for application of the correct law.

REVERSED and REMANDED .

Wolf and Bilbrey, JJ., concur.

      Legislative Fact Sheet-Deployed Parents Custody and Visitation Act , National Conference of Commissioners on Uniform State Laws, http://www.uniformlaws.org/Act.aspx?title=Deployed % 20Parents% 20Custody% 20and% 20Visitation% 20Act (last visited Apr. 10, 2018) (listing the states that have adopted the Act).

      Likewise, it does not appear that any court has addressed the constitutionality of the similar "temporary caretaking authority" provision of the UDPCVA. But see Ledoux-Nottingham v. Downs , 210 So.3d 1217, 1222-23 (Fla. 2017) (enforcing Colorado order mandating grandparent visitation that would violate Florida law, because under the Supremacy Clause, federal Parental Kidnapping Prevention Act prevails over contrary Florida law).

      The order on appeal resolves numerous other issues between the parties, stopping short of dissolving the marriage; but the only presently appealable provision that the mother challenges is the designation for timesharing. See Fla. R. App. P. 9.130(a)(3)(C)(iii) (authorizing interlocutory appeals of non-final orders that determine "in family law matters ... the rights or obligations of a party regarding child custody or time-sharing under a parenting plan").

      http://www.public.navy.mil/bupers-npc/reference/milpersman/1000/1300Assignment/Documents/1320-300.pdf.

      http://www.defensetravel.dod.mil/Docs/perdiem/JTR.pdf.

      http://www.defensetravel.dod.mil/Docs/Fact_Sheet_OHA.pdf.

      http://www.public.navy.mil/bupers-npc/reference/milpersman/1000/1300Assignment/Documents/1320-200.pdf.


source: Caselaw Access Project

author: COHEN, C.J.

license: Public Domain

text:
    Ada Albors GONZALEZ, Appellant, v. William M. STERN, Norman D. Levin and Jennifer L. Sloane, Appellees.
    Case No. 5D17-3607
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 27, 2018 Rehearing Denied May 7, 2018 Rehearing En Banc Denied May 31, 2018
    Ada Albors Gonzalez, Tallahassee, pro se.
    Kenneth L. Baker and Amy L. Baker of Wilson Elser Moskowitz Edelman & Dicker LLP, Orlando, for Appellee, Norman D. Levin.
    No Appearance for other Appellees.
   COHEN, C.J.

There comes a point when litigation must end. We are at that point in the instant case. In February 2004, Gonzalez filed a legal malpractice action against Norman Levin, William Stern, and Jennifer Sloane. In August 2004, the trial court dismissed the complaint without prejudice, allowing twenty days for Gonzalez to file an amended complaint. Gonzalez subsequently amended the complaint but in November 2004, the trial court again dismissed the matter without prejudice. Gonzalez did not appeal.

Eleven years later, Gonzalez moved for leave to amend her complaint. Levin opposed the motion, arguing that the trial court lacked jurisdiction to entertain the motion and that the statute of limitations barred her complaint. See § 95.11(4)(a), Fla.Stat. (2004) (providing two-year statute of limitations for professional malpractice action). Following a hearing, the trial court denied the motion to amend, based on the statute of limitations.

Gonzalez appealed the non-final order denying her motion. In that appeal, this Court initially issued an order to show cause why the case should not be dismissed for lack of jurisdiction. When Gonzalez failed to show cause, we dismissed the appeal. Gonzalez subsequently filed a motion for rehearing, which we granted by order, reinstating the appeal and relinquishing jurisdiction for her to obtain a final appealable order from the trial court. Our order did not address the merits of the appeal.

On remand, Gonzalez misconstrued the nature of the order, interpreting it as a reinstatement of her legal malpractice claim. Instead of following the directive to obtain an appealable order, Gonzalez filed a copy of the order with the trial court, referring to it as the "5DCA Order to Reinstate Legal Malpractice Complaint." Gonzalez then moved for judgment on the pleadings, even though there was no operative complaint, seeking over $3,000,000 in damages.

The trial court understood the nature of our order relinquishing jurisdiction, entered an order denying Gonzalez's motion for leave to amend the complaint, and dismissed the case with prejudice. Thereafter, the appeal proceeded from that final order. This Court affirmed. See Gonzalez v. Stern, 216 So.3d 639 (Fla. 5th DCA 2016). Notwithstanding, Gonzalez continued to file numerous pleadings and motions in the trial court, including a motion for relief from judgment, which the trial court denied and is now the subject of this appeal.

Quite simply, our order relinquishing jurisdiction to allow Gonzalez to obtain a final appealable order did not reinstate her cause of action. Gonzalez was given the opportunity to amend her complaint in 2004 and neglected to do so for over a decade. The long-expired statute of limitations bars her complaint. See § 95.11(4)(a), Fla. Stat. Furthermore, the trial court properly denied the motion for relief from judgment because Gonzalez failed to raise any meritorious grounds for relief. See Fla. R. Civ. P. 1.540 ; see, e.g., Snipes v. Chase Manhattan Mortg. Corp., 885 So.2d 899, 900 (Fla. 5th DCA 2004) ("[The] failure to take the steps necessary to protect [one's] own interest during the litigation cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of innocent parties."). Accordingly, we affirm.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.

      The trial court granted summary judgment in favor of both Stern and Sloane, and the case proceeded solely against Levin.


author: SILBERMAN, Judge.

text:
    Albert C. GANZEMULLER and Janice R. Ganzemuller, Appellants, v. OMEGA INSURANCE COMPANY, Appellee.
    Case No. 2D17-1284
    District Court of Appeal of Florida, Second District.
    Opinion filed April 27, 2018.
    Sean Estes of James Hoyer, P.A., Tampa; Donna Stockham of Stockham Law Group, P.A., Tampa; and John Marc Tamayo of Valenti, Campbell, Trohn, Tamayo & Aranda, P.A., Lakeland, for Appellants.
    David B. Shelton of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellee.
   SILBERMAN, Judge.

Albert and Janice Ganzemuller appeal a final order dismissing with prejudice their class action complaint against Omega Insurance Company in which they asserted claims for breach of contract and declaratory relief. The Ganzemullers contended in the trial court, as they do here, that Omega improperly required them to pay a deductible when Omega invoked its right to repair the property. They argue that subsection 627.7011(5)(e), Florida Statutes (2015), which references subsection 627.702(7), prohibits an insurer from requiring that the insured pay a deductible when the insurer invokes its right to repair property damage, regardless of whether the damage is a partial or total loss. The trial court entered its final order of dismissal, concluding that the Ganzemullers failed to state a cause of action and, under the applicable law, would not be able to state a viable cause of action. We affirm.

The facts are not in dispute. The Ganzemullers purchased homeowner's insurance from Omega that covered a one-year period beginning November 24, 2015. They selected a $1000 deductible, applicable to all perils except hurricane and sinkhole claims. Based on that selection, they received a $100 credit against their policy premium. It is not necessary to detail the contents of the policy other than to note that it includes provisions addressing loss settlement, the insurer's option to repair, and the deductible.

In March 2016, the Ganzemullers' property suffered hail damage, and they filed a claim with Omega. Omega acknowledged coverage, and there is no dispute that the loss was a partial loss. Omega invoked its option under the policy to repair the damage and hired a contractor. The repair costs totaled $16,611.90, and the Ganzemullers were required to pay their $1000 deductible to the contractor. The Ganzemullers then filed their class action suit, contending that Florida law precludes the insurer from requiring payment of the deductible when the insurer elects to repair the damage.

Omega moved to dismiss the complaint, contending that the Ganzemullers did not have a viable claim. The trial court agreed and dismissed the action with prejudice, determining that neither the policy nor Florida law supported the Ganzemullers' cause of action. The issue on appeal is whether subsections 627.7011(5)(e) and 627.702(7) relieve the Ganzemullers and potential class members from the obligation to pay deductibles when Omega invokes its option to repair partial losses.

This court conducts a de novo review of an order granting a motion to dismiss. Al-Hakim v. Holder, 787 So.2d 939, 941 (Fla. 2d DCA 2001). This court also employs the de novo standard when interpreting a statute or an insurance policy. Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Fla. 2005) ; Bioscience West, Inc. v. Gulfstream Prop. & Cas. Ins. Co., 185 So.3d 638, 640 (Fla. 2d DCA 2016). The issue here is one of statutory and contractual interpretation.

Section 627.702 is titled "Valued policy law." Subsection (1)(a) addresses the total loss of property and provides that "the insurer's liability under the policy for such total loss, if caused by a covered peril, shall be in the amount of money for which such property was so insured as specified in the policy and for which a premium has been charged and paid." § 627.702(1)(a). Subsection (7) provides as follows:

(7) Nothing herein shall be construed as prohibiting an insurer from repairing or replacing damaged property at its own expense and without contribution on the part of the insured except, as provided in subsection (6), when an insured has elected to purchase stated value coverage. Such repair or replacement of damaged property shall be in lieu of any liability created by subsection (1); and any insurer so repairing or replacing shall have no liability pursuant to subsection (1), provided such insurer returns to the named insured a portion of the premium, for all policy terms during which the policy limits were the same as those in effect on the date on which the loss occurred, equal to that portion of the premium paid for limits of insurance on the structure in excess of the cost of replacement.

§ 627.702(7).

Section 627.7011 is titled "Homeowners' policies; offer of replacement cost coverage and law and ordinance coverage." Among other things, the statute specifies those policies or endorsements that an insurer must offer prior to issuing a homeowner's insurance policy. Subsection (5)(e) provides that the statute does not "[p]rohibit an insurer from exercising its right to repair damaged property in compliance with its policy and s. 627.702(7)." § 627.7011(5)(e).

Even though subsection 627.702(7) is contained within the statute that addresses total losses, the Ganzemullers argue that the reference to it in subsection 627.7011(5)(e) makes subsection 627.702(7) equally applicable to partial losses. Thus, they contend, even though the policy may require payment of a deductible, once the insurer elects to repair damaged property, whether the loss is total or partial, the statutory provisions preclude the insurer from requiring payment of that deductible.

When interpreting a statute, we first must look at the plain language found in the statute. Daniels, 898 So.2d at 64. "Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another." Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992). And if the language of a statute is unambiguous, the court will not look beyond the statute's plain language. Daniels, 898 So.2d at 64.

Subsection 627.702(1) specifically deals with total losses, and subsection (7) addresses the insurer's right to repair without contribution by the insured "in lieu of any liability created by subsection (1)." Thus, these subsections preclude the insurer from requiring the insured to make any contribution when the insurer elects to make repairs in total loss situations. The parties do not dispute that deductibles are covered by the "without contribution" language.

As discussed previously, section 627.7011 specifies those things that an insurer must offer prior to issuing a homeowner's policy. Subsection (5)(e) makes clear that section 627.7011 does not "[p]rohibit an insurer from exercising its right to repair damaged property in compliance with its policy and s. 627.702(7)." § 627.7011(5)(e). Nothing in this language suggests a statutory intent to eliminate policy deductibles for partial losses as well as total losses where the insurer elects to make repairs. Our conclusion is buttressed by the fact that subsection 627.702(7) provides that the insurer's repair or replacement of damaged property is in lieu of liability under subsection 627.702(1), which deals with the insurer's liability under the policy for a covered total loss.

In summary, the pertinent statutory sections relied on by the Ganzemullers do not eliminate an insured's obligation to pay the required deductible under the policy when the insured suffers a partial loss that the insurer elects to repair. Accordingly, we affirm the order dismissing the complaint with prejudice.

Affirmed.

KELLY and CRENSHAW, JJ., Concur.

      The pertinent insurance forms contained in the record include: HP-0085-00 (06/08); HO 00 03 04 91; HO-DEC (08/12); OM-002 (04/11); IL-0012 (09/05); and HP-0109-09 (10/13).


author: Per Curiam.

text:
    Sammie DUBBERLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3823
    District Court of Appeal of Florida, First District.
    April 30, 2018 Rehearing Denied June 19, 2018
    Sammie Dubberly, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    Irving HIMMELBERG, Appellant, v. Kristina HIMMELBERG and Kimberly Himmelberg, Appellees.
    No. 1D17-2829
    District Court of Appeal of Florida, First District.
    May 3, 2018
    Parker B. Smith of Parker B. Smith, P.A., Destin, for Appellant.
    Timothy M. Chiasson of Law Office of Daniel C. Perri, Shalimar, for Appellees.
   Per Curiam.

Appellant is Appellees' paternal grandfather. He set up custodial accounts under the Uniform Transfers to Minors Act for Appellees when they were infants. Appellant deposited money into the accounts, but he subsequently withdrew the money to reimburse his son for child support and other expenses that the son was ordered to pay to Appellees' mother in their divorce proceeding. After Appellees turned 18 and learned of the withdrawals, they sent letters to Appellant demanding that he return the money taken from their accounts. When Appellant did not respond to the letters, Appellees filed a complaint seeking damages for (among other claims) civil theft under section 772.11, Florida Statutes. When Appellant did not respond to the complaint, a clerk's default and a "final default judgment" were entered. Appellant filed a motion to set aside the default judgment, which the trial court denied after a hearing. Then, after an evidentiary hearing on damages, see Fla. R. Civ. P. 1.500(e), the trial court entered a final judgment awarding Appellees more than $200,000, which included treble damages for the civil theft and attorneys' fees. This appeal followed.

Appellant raises four issues on appeal: (1) the final judgment was an untimely amendment to the default judgment; (2) Appellees failed to establish their entitlement to treble damages; (3) the trial court lacked personal jurisdiction over him; and (4) the damage award was excessive. We affirm the first and third issues without discussion; we affirm the second issue because the default-which Appellant does not challenge on appeal-precluded Appellant from contesting the well-pled allegations in the complaint, including the allegations of civil theft from which the award of treble damages legally flowed, see Florida Bar v. Porter , 684 So.2d 810, 813 n.4 (Fla. 1996) ("[T]he entry of a default precludes a party from contesting the existence of a plaintiff's claim and liability thereon."); Rich v. Spivey , 922 So.2d 326, 327 (Fla. 1st DCA 2006) ("A default admits liability as claimed in the pleading by the party seeking affirmative relief against the party in default." (quoting Sec. Bank, N.A. v. BellSouth Adver. & Publ'g Corp. , 679 So.2d 795, 803 (Fla. 3d DCA 1996) ); and, we affirm the fourth issue because although there was conflicting evidence of the amount of money Appellant withdrew from Appellees' accounts and the purposes for which some of the money was used, the total damage award in the final judgment is supported by competent substantial evidence, see Pearce & Pearce Inc. v. Kroh Bros. Dev. Co. , 474 So.2d 369, 371 (Fla. 1st DCA 1985) ("The general rule is that the extent of damages determined by a trial court is a question of fact which will be affirmed on appeal if supported by competent, substantial evidence.").

AFFIRMED .

Wetherell, Ray, and Osterhaus, JJ., concur.

      Despite its title, this judgment was not a "final" judgment because it merely determined Appellant's liability for the claims alleged in Appellees' complaint. The judgment did not award a specific amount of damages, nor could it because the damages sought in the complaint were unliquidated.


author: SALARIO, Judge.

text:
    Margarett FIELDS, Appellant, v. The DEVEREUX FOUNDATION, INC., Jamar Plummer, and Heartland for Children, Inc., Appellees.
    Case No. 2D16-3558
    District Court of Appeal of Florida, Second District.
    Opinion filed May 4, 2018
    Margarett Fields, pro se.
    Janice L. Merrill of Marshall, Dennehey, Warner, Coleman & Goggin, Orlando, for Appellee The Devereux Foundation, Inc.
    No appearance for remaining Appellees.
   SALARIO, Judge.

Margarett Fields appeals from a final summary judgment in favor of The Devereux Foundation on her claims for assault, battery, abuse of process, intentional infliction of emotional distress, negligent hiring, and negligent supervision. Because Devereux failed to meet its initial burden to establish the nonexistence of a genuine issue of material fact with respect to the assault and battery claims, we reverse as to those claims. In all other respects, we affirm without comment.

The undisputed facts for summary judgment purposes are these. Ms. Fields is the paternal grandmother of D.F., a juvenile who was removed from his parents' care but later reunified with his father. D.F.

and his father lived with Ms. Fields at her home. D.F.'s mother sought and was granted visitation with D.F. Devereux-an organization that provides families with behavioral and social services-was hired to facilitate the visitations. An employee of Devereux named Jamal Plummer was assigned as case manager. One of his duties was to conduct periodic home visits with D.F.

Mr. Plummer failed in the performance of those duties and, to make matters worse, submitted fake documents to Devereux stating that he had completed visits that never really happened. It appears that he visited the home only once. On that occasion, he was greeted at the door by Ms. Fields. He informed her that he was there to take D.F. for court-ordered visitation with his mother. When, upon Ms. Fields' request, he was unable to provide anything to show her that he was in fact authorized to do that, Ms. Fields refused to allow him to take D.F. from the home.

When Ms. Fields resisted Mr. Plummer's efforts to take her grandson, he grew frustrated and began acting aggressively. She alleges that he cocked his fist as if he was going to strike her, causing her to feel startled and, as a result, to fall backward into the door frame. She sued Devereux for assault and battery, asserting that Devereux was liable for Mr. Plummer's conduct under a theory of respondeat superior.

Devereux moved for summary judgment. In its motion, Devereux argued that it could not be held vicariously liable for assault or battery because Mr. Plummer's alleged conduct was outside the scope of his employment with Devereux. It offered no affidavits or other summary judgment evidence, however, that bore either on the precise details of Mr. Plummer's conduct during the incident or on the scope of his employment with Devereux. Instead, it argued simply that "there is no evidence [Mr. Plummer] was acting in the course and scope of his employment when" he allegedly assaulted and battered Ms. Fields. The trial court granted Devereux's motion and entered a final judgment in its favor, from which Ms. Fields filed this timely appeal.

We review an order granting summary judgment de novo. Deep S. Sys., Inc. v. Heath, 843 So.2d 378, 379 (Fla. 2d DCA 2003). Summary judgment is proper where "the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c). "Summary judgment evidence" consists of "any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence." Id.

Determining whether the pleadings and summary judgment evidence show that there is no genuine issue of material fact is a two-step process. First, "[i]t is the movant's burden to prove the nonexistence of genuine issues of material fact." Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). Once the movant carries that initial burden, the burden shifts to the party opposing summary judgment to show that there actually is an issue of material fact remaining to be tried. McNabb v. Taylor Elevator Corp., 203 So.3d 184, 185 (Fla. 2d DCA 2016). The burden does not shift to the opposing party, however, unless and until the movant carries its initial burden of demonstrating that no genuine issue of material fact exists. Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011). The movant cannot satisfy that initial burden merely "by showing that up until the time of his motion his adversary has not produced sufficient evidence in support of his pleadings to require a trial."

Derogatis v. Fawcett Mem'l Hosp., 892 So.2d 1079, 1083 (Fla. 2d DCA 2004) (quoting Matarese v. Leesburg Elks Club, 171 So.2d 606, 607 (Fla. 2d DCA 1965) ).

The only summary judgment issue Devereux argued in the trial court concerning Ms. Fields' assault and battery claims was that it could not be held vicariously liable for Mr. Plummer's intentional torts. In Florida, an employer is vicariously liable for an employee's tortious conduct where the conduct occurs within the scope of the employment. Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986). In the case of intentional torts, a plaintiff's mere showing that an employee was on duty at the time he assailed someone is not sufficient to establish that the conduct occurred within the scope of employment. Id. Rather, the employee's conduct must be "of the kind he was employed to perform," must occur "substantially within the time and space limits authorized or required by the work to be performed," and must be "activated at least in part by a purpose to serve the master." Iglesia Cristiana La Casa Del Señor, Inc. v. L.M., 783 So.2d 353, 357 (Fla. 3d DCA 2001). Thus, an employer can generally be held vicariously liable for an intentional tort where the employee's tortious conduct is undertaken in furtherance of the employer's interests. Perez v. Zazo, 498 So.2d 463, 465 (Fla. 3d DCA 1986) ; see also, e.g., Columbia By The Sea, Inc. v. Petty, 157 So.2d 190, 192 (Fla. 2d DCA 1963) (holding that jury could conclude that maitre d' of restaurant acted within scope of employment when he battered customer with an ashtray during an attempt to get him to pay thirty-five-cent upcharge for roquefort salad dressing ); Jax Liquors, Inc. v. Hall, 344 So.2d 247, 247 (Fla. 1st DCA 1976) (holding that armed security guard who removed unruly bar patron and shot him in the parking lot was within the scope of his employment despite the fact that the shooting was "entirely unnecessary to any legitimate purpose of [his] employment" because the confrontation was initiated to serve his employer's interests and escalated "with unbroken continuity" to the shooting).

In this case, Ms. Fields alleges that Mr. Plummer both assaulted and battered her while trying to take D.F. to visit his mother, a task Mr. Plummer was hired by Devereux to perform. On its face, Ms. Fields' claim is of the type for which a jury could permissibly find Devereux vicariously liable because it could determine that the tortious conduct was undertaken in the performance of a job duty and motivated by a purpose to serve Devereux. See Iglesia Cristiana, 783 So.2d at 357. Devereux, however, did not offer any affidavits, deposition testimony, interrogatory answers, or other summary judgment evidence to show that Mr. Plummer's conduct did not happen as Ms. Fields said it did, that Mr. Plummer's job duties were something other than she said they were, that Mr. Plummer's purpose was something other than serving Devereux, or that there was some other fact that would show that it could not be vicariously liable in this case. It simply asserted, without offering evidence of its own, that there was "no evidence" that it could be liable for the alleged assault or battery. That showing was insufficient to shift the summary judgment burden from Devereux to Ms. Fields. See Derogatis, 892 So.2d at 1083 ; see also Bernhardt v. Halikoytakis, 95 So.3d 1006, 1008 (Fla. 2d DCA 2012) ("The movant's burden is to come forward with competent evidence to demonstrate the nonexistence of a material issue of fact."). For that reason, the trial court improperly granted summary judgment on the assault and battery claims.

Accordingly, although we affirm in all other respects, we reverse the final summary judgment as to Ms. Fields' claims for assault and battery and remand this case to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and VILLANTI, JJ., Concur.


text:
    Gregory HARRIS, Petitioner, v. SECOND JUDICIAL CIRCUIT COURT, Respondent.
    No. 1D18-1391
    District Court of Appeal of Florida, First District.
    May 10, 2018 Rehearing Denied June 21, 2018
    Gregory Harris, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied as premature. See Smartt v. First Union Nat'l Bank , 771 So.2d 1232 (Fla. 5th DCA 2000).

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    The ESTATE OF Jules REICH, Rhandi Kahn, individually, RHK JSR Holdings, LLC, Palm Beach Somerset, LLC, The Dunes at WPB, LLLP, a Florida limited liability limited partnership, The Dunes at WPB GP Inc., a Florida corporation, The Grand Isles at WPB, GP, INC., a Florida corporation, and MJRM Boca LLC, a Florida limited liability company, Appellants, v. Gary SMITH, individually, Appellee.
    No. 4D17-2605
    District Court of Appeal of Florida, Fourth District.
    May 9, 2018
    Aram Caldarera Bloom of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, West Palm Beach, and Andrew M. Dector of Shapiro, Blasi, Wasserman & Hermann, P.A., Boca Raton, for appellants The Estate of Jules Reich, The Grand Isles at WPB, GP, Inc. and RHK JSR Holdings, LLC.
    Douglas F. Eaton of Eaton & Wolk, PL, Miami, for appellee.
   Per Curiam.

Affirmed. See Cardegna v. Buckeye Check Cashing, Inc. , 930 So.2d 610 (Fla. 2006) (citing Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) ).

May, Damoorgian and Forst, JJ., concur.


text:
    Shermykael Juanius JENKINS, Appellant, v. Deandra Leeann GOODMAN, Appellee.
    Case No. 2D17-877
    District Court of Appeal of Florida, Second District.
    Opinion filed May 25, 2018
    Shermykael Juanius Jenkins, pro se.
    No appearance by Deandra LeeAnn Goodman.
   SILBERMAN, Judge.

After a final judgment of injunction for protection against domestic violence was entered against him, Shermykael Juanius Jenkins filed a pro se "Motion for Rehearing or Appeal" which the trial court treated as Jenkins' notice of appeal. In his motion for rehearing or appeal and in this court, Jenkins alleged grounds that do not establish reversible error but may provide for relief from judgment under Florida Family Law Rule of Procedure 12.540(b). Rather than relinquish jurisdiction for the trial court to consider those grounds, we affirm without prejudice to Jenkins filing a motion for relief from judgment under rule 12.540(b) within thirty days of mandate. See Armbruster v. Amber Int'l Corp., 416 So.2d 1220, 1221 (Fla. 3d DCA 1982) ; Glatstein v. City of Miami, 391 So.2d 297, 299 (Fla. 3d DCA 1980).

CASANUEVA and SLEET, JJ., Concur.


author: PER CURIAM.

text:
    Kenneth D. HODGES, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D18-0313
    District Court of Appeal of Florida, First District.
    May 11, 2018 Rehearing Denied June 21, 2018
    Kenneth D. Hodges, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits.

WETHERELL, RAY, and OSTERHAUS, JJ., concur.


text:
    Ricardo D. GALLOWAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1403
    District Court of Appeal of Florida, First District.
    May 11, 2018 Rehearing Denied June 18, 2018
    Ricardo D. Galloway, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Wetherell, Ray, and Osterhaus, JJ., concur.


text:
    James WITT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3688
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

James Witt appeals his sentences for two counts of tampering with a witness in a third-degree felony investigation which were imposed after revocation of probation. The written sentences designate Witt as a habitual felony offender (HFO) and as a violent felony offender of special concern (VFOSC). Witt filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b), and the trial court determined that Witt was entitled to a resentencing hearing based on his sentence as an HFO and at which time the court would strike costs of prosecution over $100. The trial court denied Witt's challenge to his status as a VFOSC. The State points out in its brief that the record reflects that Witt withdrew his rule 3.800(b) motion in the trial court and that the resentencing hearing was cancelled. Therefore, we affirm Witt's sentences imposed after revocation of probation.

Affirmed.

KELLY and BADALAMENTI, JJ., Concur.


text:
    Shantrelle Latrice WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2641
    District Court of Appeal of Florida, First District.
    June 8, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We affirm appellant's Anders appeal, but remand for correction of the community control and probation revocation order encompassing case numbers 15-CF-2870, 15-CF-3342, 16-CF-1391, and 16-CF-1397, to state, as set forth on the judgments and in the violation hearing transcript, that appellant admitted to and was found guilty of violating counts four through six of the affidavit of violation.

AFFIRMED and REMANDED with instructions.

B.L. THOMAS, C.J., and WOLF and RAY, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: Jay, J.

text:
    Antonio Devon WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1347
    District Court of Appeal of Florida, First District.
    June 8, 2018
    Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Jay, J.

In this direct criminal appeal, Appellant-Antonio Devon Williams-appeals his judgment of conviction and sentence for attempted second-degree murder. In its special interrogatory verdict, the jury found that during the offense Appellant possessed and discharged a firearm, causing great bodily harm. In his sole point on appeal, Appellant argues the trial court erred in denying his motion for judgment of acquittal because the State's evidence was legally insufficient to prove he acted out of ill will, hatred, spite, or evil intent. We disagree and affirm.

I.

The testimony and evidence presented by the State revealed that Appellant and Javier Chandler had been childhood friends and, on the day of the offense, were still neighbors. Chandler, who was twenty-six years old at the time of the trial, testified that Appellant, a few years' Chandler's junior, had been like a little brother to him growing up. As they grew older they grew apart, yet remained on speaking terms, especially on those occasions when Appellant desired to purchase a firearm.

February 22, 2016, was just such an occasion. Chandler left work mid-afternoon to begin "calling around" to locate the gun Appellant wanted. After making several calls, he was successful in locating a seller and purchased a gun for Appellant. He claimed he did not have Appellant accompany him because he wanted to negotiate a price with the seller that would allow him to make a small profit when he asked Appellant for the cash. After the purchase, Appellant asked Chandler to drive him to Walmart so that he could buy bullets for his new "strap." According to Chandler, the two went into Walmart, but Chandler exited the store a short time later to finish smoking some marijuana.

After they left Walmart, the conversation turned to the price of the gun. Chandler revealed to Appellant that he had hoped to turn a profit of $50 for negotiating the purchase. It appeared to Chandler, however, that Appellant was trying to back out of the deal, which frustrated Chandler because he had taken time off from work to help Appellant locate the firearm.

When they pulled into Appellant's driveway, Chandler said that Appellant exited the car and walked in front of the vehicle, brandishing a pistol different from the one Chandler had procured. Chandler indicated that his driver's side door was "cracked" and his window was down. Chandler could not believe that Appellant would try to shoot him in broad daylight within earshot of the neighbors. Yet, Appellant demanded to know where his new gun was and accused Chandler of having taken the weapon. Chandler tried to persuade Appellant to "change his mind," but the next thing he knew, he "woke up" still in his car with the door "wide open," but across the street from Appellant's house.

Chandler ran to his grandmother's house-which was one or two doors down-and knocked on the door. His last memory was seeing his grandmother, who testified that when she opened the door, Chandler collapsed, bleeding profusely. Later, Chandler would recall having seen Appellant standing in his driveway across the street, watching him as he was running toward his grandmother's house. Appellant was still holding the gun he had just used to shoot Chandler. Chandler's grandmother also saw Appellant watching from across the street while holding something that looked like "a stick." She later learned it was a gun.

Investigator Jimmie Tatum with the Escambia County Sheriff's Office responded to the shooting. He was directed to Appellant's house and spoke to Appellant's mother. Appellant was not present and his mother did not know where he was, but she permitted Investigator Tatum-and the deputies who had accompanied him-to conduct a protective sweep of her home. From the number of firearms and ammunition he observed in plain view in Appellant's bedroom, Investigator Tatum was able to obtain a search warrant for the house, as well as one for Chandler's car. No weapons or contraband were found in the car. After a be-on-the-lookout ("BOLO") for Appellant was dispatched and he was featured on the news and on "social media," Appellant turned himself in to the sheriff's office. There, he was interviewed by Investigator Tatum, and the recorded interview was played for the jury during the State's case-in-chief.

During the interview, Appellant's version of events proved to differ somewhat from Chandler's subsequent statement to Investigator Tatum and his trial testimony. Appellant's story included his active participation in the purchase of the gun from the seller. He admitted to Investigator Tatum that when he left to buy the gun with Chandler, he armed himself with another gun "to make sure ... nothing happened or anything." He then set off with Chandler. At the seller's home, Appellant took the gun outside and fired some rounds to assure the gun was operable.

Afterwards, he and Chandler drove to Walmart for the bullets. Before he went inside the store, however, Appellant placed his newly purchased "strap" in his book bag, which also held his other gun. The two then entered the store, but immediately split up. Appellant walked to the back of the store where the ammunition was sold, while Chandler went off to purchase something for his girlfriend. Because there was an issue regarding the correct size of the bullets needed for the gun, Appellant found Chandler and the two walked back outside to Chandler's car to look at the gun. According to Appellant, when they got back to the car, Appellant looked in his book bag and discovered the new gun was missing, although his other gun was still in the bag. Appellant suspected that while they were separated, Chandler had returned to the car and taken the gun. Appellant told Chandler to drive him home.

Appellant informed Investigator Tatum that when the two men arrived at Appellant's house, they got out of the car and began looking for the gun. At this point, according to Appellant, Chandler got "feisty." Appellant claimed he told Chandler that he did not want to fight with him; he just wanted Chandler to give him his gun. Chandler got back in the car and tried to pull away, but Appellant walked up to Chandler's partially opened door. He claimed Chandler knew all along that Appellant was armed. While Appellant was standing at Chandler's driver's side door, Chandler began "fidgeting like he was going for his pocket," and Appellant thought he was going to use Appellant's "strap" to shoot him. He told Investigator Tatum that he thought Chandler was "on something" like "some type of drugs."

He then explained that, although he did not see Chandler holding a gun, his "adrenaline took over" and he "hurr[ied] up and fired." Appellant thought he had missed Chandler altogether, but then he noticed "it [was] kind of oozing a little bit on the side of his neck[.]" Appellant watched as Chandler's car rolled backwards and he saw Chandler jump out and run to his grandmother's house with "something" in his hand. That "something" later turned out to be Chandler's cell phone. Appellant informed Investigator Tatum that he did not call the police because he was afraid the gun he had just purchased-which he believed was on Chandler's person at that time-was "hot" and he did not want to get into trouble. He claimed he did not mean to shoot Chandler because, had he intended to do so, he could have "busted the whole clip" on him.

Appellant related that he next turned and entered his house to get another weapon, fearing that Chandler and his "people" might return to "shoot up" his mother's house. At that point, Investigator Tatum wondered aloud why, when Appellant believed Chandler had taken his gun and he "knew sh*t was fixing to get crazy," he just did not say "f**k it and walk away," forgetting about the money. Appellant explained that he did not want to "take another loss": his dirt bike was "messed up"; his PlayStation was broken; and someone had stolen his dirt bike a year ago. He complained that he had let too many things "slide," and he was "thinking about the money."

After the State rested, defense counsel moved for a judgment of acquittal, arguing the State had not proved the elements of second-degree murder, namely that "the act was imminently dangerous to another in demonstrating a depraved mind without regard to human life." He urged that there had to be "some evidence where a jury could find that the defendant's actions were more deliberate than impulsive," distinguishing the facts of the instant case from those in Perez v. State , 187 So.3d 1279 (Fla. 1st DCA 2016), while relying on the analysis in Rayl v. State , 765 So.2d 917 (Fla. 2d DCA 2000).

Taking the evidence in a light most favorable to the State, the trial court highlighted the facts establishing that the two men had been arguing about the price of the gun; Appellant walked around to the driver's side of the car with his gun drawn; Appellant did not want to "take another loss"; and Appellant was angry, believing that Chandler had taken his newly purchased gun. The court also considered Appellant's actions after the shooting, such as his failure to render aid to his "lifetime friend" and his flight from home when he did not "resurface for another 24 hours." The trial court concluded there was sufficient evidence to present the case to the jury.

II.

We review the denial of a motion for judgment of acquittal de novo. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002) (citation omitted). And, as did the trial court, we "must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the state." Jones v. State , 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc). "If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Pagan , 830 So.2d at 803 ; see also Perez , 187 So.3d at 1281 ("If the evidence, when considered in the light most favorable to the State, is capable of supporting a guilty verdict, a motion for judgment of acquittal must be denied.").

"Second-degree murder is '[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.' " Perez , 187 So.3d at 1281-82 (quoting § 782.04(2), Fla. Stat.) "The depraved-mind element of second-degree murder requires 'ill will, hatred, spite, or an evil intent.' " Id. at 1282 (quoting Poole v. State , 30 So.3d 696, 698 (Fla. 2d DCA 2010) ). Typically, the requisite intent can be inferred from the circumstances of the case. Id. (citing Antoine v. State , 138 So.3d 1064, 1074 (Fla. 4th DCA 2014) ). But, "[t]o establish that the defendant acted with a depraved mind, the State must present evidence of circumstances showing more than an 'impulsive overreaction' to an attack." Id. (citing Wiley v. State , 60 So.3d 588, 591 (Fla. 4th DCA 2011) ; Dorsey v. State , 74 So.3d 521, 522 (Fla. 4th DCA 2011) ).

In the present case, Appellant asserts that even when taken in a light most favorable to the State, the evidence proved only that his act of shooting Chandler was an "impulsive overreaction" to Chandler's "fidgety" behavior and did not rise to the level of the necessary ill will, hatred, spite, or evil intent needed to prove the charged offense of attempted second-degree murder. Appellant distinguishes the circumstances of the instant case from those in Perez , and, instead, compares them favorably to the facts related in Poole v. State , 30 So.3d 696 (Fla. 2d DCA 2010), Bellamy v. State , 977 So.2d 682 (Fla. 2d DCA 2008), Rayl , and McDaniel v. State , 620 So.2d 1308 (Fla. 4th DCA 1993).

Because the facts in Perez are so similar to those in the instant case, they bear quoting here:

[Perez] and Coley were approximately nineteen and twenty years old, respectively, at the time of the shooting. They lived in the same neighborhood and had been good friends in middle school. At some point, for a reason not revealed at trial, a rift developed in their relationship. They would still interact in a civil manner for neighborhood basketball games, but their differences remained unresolved.
On the evening of the shooting, Coley and a friend were walking along a street when [Perez] approached them from behind on a bicycle. [Perez] and Coley exchanged words and ended up arguing face-to-face. [Perez] and Coley yelled at one another, but neither pushed, shoved, kicked, or punched the other. During the heated verbal exchange, Coley walked toward [Perez], challenging him to a physical fight. Coley testified that he asked [Perez] for a "fair fight," one-on-one, to finally settle their differences. [Perez] stated that he "wasn't taking no losses," and as Coley walked toward [Perez] in pursuit of a fight, [Perez] pulled out a gun and put it in Coley's face.
Surprised and angry, Coley pushed the gun away and continued moving towards [Perez], asking if [Perez] was seriously pulling a gun on him. From an arm's length away, [Perez] put the gun on Coley's stomach, and it "went off." Coley called [Perez's] name and said, "[Y]ou shot me." [Perez] answered, "I know. I should have killed you." As Coley's friend scrambled away from the scene, [Perez] pointed the gun at him. The friend hid behind an electrical box, and both Coley and the friend heard a couple more gunshots shortly after the first one. [Perez] then left on his bicycle.

Perez , 187 So.3d at 1281.

Perez claimed that the shooting was merely an "impulsive overreaction" to Coley's invitation to fight, relying on Poole , Bellamy , Rayl , and McDaniel , for support. We noted that in those four cases, the appellate courts concluded the evidence was insufficient to establish the intent element of second-degree murder (or attempted second-degree murder), "where the defendants reacted to either an attack or a perceived imminent attack or were engaged in mutual physical fighting with the victims." Id. at 1282.

For instance, in Poole the defendant stabbed an unarmed victim when the victim angrily lunged at him inside a cramped recreational vehicle, where the victim was stronger and larger than the defendant and had a reputation for violence, particularly when he had been drinking, as he had been on the night in question. Poole , 30 So.3d at 697-98. The facts in Bellamy showed that the defendant stabbed one victim when he was outnumbered and pushed against a wall, then stabbed another victim after being pushed to the ground by a crowd of brawlers. Bellamy , 977 So.2d at 684. In Rayl , the defendant shot the victim twice after the victim "bust[ed] open" the door to his place of business and confronted him while threatening to kill him (after having made that same threat throughout the day), was allegedly armed, and was possibly lunging at the defendant following the first shot. Rayl , 765 So.2d at 919-20. Lastly, in McDaniel , the defendant stabbed his son after the son hit the defendant in the mouth and knocked him to the ground. McDaniel , 620 So.2d at 1308. As we emphasized in Perez : "These cases essentially involved imperfect self-defense claims." Perez , 187 So.3d at 1282 (citing Dorsey , 74 So.3d at 524 ). In other words, the defendant's behavior in each case could only be characterized as an overreaction to the show of threatening force; it did not evince ill will, hatred, spite, or an evil intent.

Likewise, in Dorsey , the Fourth District noted that " '[a]lthough exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim.' " Dorsey , 74 So.3d at 524 (quoting Light v. State , 841 So.2d 623, 626 (Fla. 2d DCA 2003) ). The Fourth District further observed that, " '[h]atred, spite, evil intent, or ill will usually require more than an instant to develop.' " Id. (quoting Light , 841 So.2d at 626 ). Thus, it held in Dorsey that the evidence was insufficient to sustain the conviction for second-degree murder where it was uncontested that the defendant was backed up to a car when he was confronted by a small crowd of men, including the heavily-intoxicated victims, heated words were exchanged, one of the victims punched the defendant in the face, and appellant pulled out his gun and shot both victims at close range. The victims died due to their wounds. The Fourth District explained its ruling:

Although a jury could reasonably find that the defendant's use of a gun was excessive, thereby negating a finding of self-defense, no evidence was presented that the defendant acted out of ill will, hatred, spite, or an evil intent. Furthermore, we reject the State's argument that the defendant's demeanor before the confrontation was sufficient to prove beyond a reasonable doubt that he acted with a depraved mind. The defendant's use of deadly force occurred only after he was attacked, and the State has pointed to no record evidence that the defendant had any previous grudge against these victims or any ongoing disputes between them.

Id. at 525.

But in Perez , we distinguished the foregoing decisions on the basis that even though Coley had challenged Perez to a fight and advanced toward him, the evidence did not "necessarily establish that when [Perez] shot Coley he was 'impulsively acting out of fear to save himself.' " Perez , 187 So.3d at 1282 (comparing Antoine , 138 So.3d at 1074 (distinguishing "impulsive overreaction" cases from those in which the evidence implied that the defendant was not "impulsively acting out of fear to save himself" but was "administering street justice") ). We further held that while "the evidence showed the shooting was a response, and indeed an overreaction to Coley's challenge to fight," id. , there was testimony that "provided a basis from which the jury could find that [Perez's] reaction was more deliberate than impulsive." Id. This Court also relied on Perez's statement that he "should have killed" the victim in order to distinguish the case from the "impulsive overreaction" decisions.

Here, although there is no direct statement by Appellant that he "should have killed" Chandler, we nonetheless consider the facts to be on par with those in Perez , and distinguishable from those in Dorsey, Poole , Bellamy , Rayl , and McDaniel . Appellant and Chandler had been childhood friends, but there was no evidence that they had remained close friends once they reached adulthood. It would appear, though, that they remained cordial enough for Appellant to rely on Chandler to locate guns for him to purchase. That latter facet of their relationship-more so than the daily civil rapport they might have shared-serves to explain the heightened tension that arose between them on February 22, 2016. Significantly, the gun in question was never found. But, as far as Appellant's having known Chandler long enough to develop enmity against him-the factor discussed in Dorsey -we conclude there was adequate evidence to satisfy that consideration.

In this case, the evidence-taken in a light most favorable to the State-showed that Appellant decided ahead of time to arm himself because, in his experience, any good will behind firearm deals could easily dissolve into distrust, or worse. From this it is reasonable to assume that Appellant was suspicious and primed for a fight even before he left with Chandler. Next, once at Walmart, when Appellant claimed he noticed the gun he had allegedly purchased was missing from his book bag, his suspicion caused him to assume that Chandler was the culprit. Chandler testified that once they returned to Appellant's house, Appellant became increasingly hostile. At that point, the jury could have found that Appellant bore a distinct grudge against Chandler. That grudge, or sense of "enmity," intensified once a search of Chandler's car did not produce the gun.

In addition, Appellant admitted to Investigator Tatum that he had been upset over the earlier theft of his dirt bike and that he had not wanted to suffer anymore "losses"-words very similar to those spoken by Perez. Thus, the most reasonable view of the evidence taken in a light favorable to the State, establishes that when Appellant walked around to the driver's side of the car and shot Chandler, sufficient ill will, hatred, spite, or evil intent had already taken root in Appellant's mind.

III.

Accordingly, we conclude, as did the trial court, that the evidence was capable of supporting a guilty verdict for attempted second-degree murder. Perez , 187 So.3d at 1281. As a result, we find the trial court properly denied Appellant's motion for judgment of acquittal.

AFFIRMED .

Lewis and Roberts, JJ., concur.


text:
    Eddie James MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0093
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Eddie James Murphy, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Due to Appellant's apparent abuse of the legal process by his repeated pro se filings attacking his judgment and sentence, the Court issued an order directing Appellant to show cause why he should not be prohibited from future pro se filings. See State v. Spencer , 751 So.2d 47, 48 (Fla. 1999) (requiring that courts "first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence"). Appellant's response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

Because Appellant's continued and repeated attacks on his judgment and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this Court concerning Columbia County Circuit Court case number 1997-715-CF. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing with The Florida Bar. Appellant is warned that any filings that violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R. App. P. 9.410.

Rowe, Ray, and Makar, JJ., concur.


text:
    Matthew Aaron BURCH, Appellant, v. Michelle Nicole BURCH, Appellee.
    No. 1D17-4868
    District Court of Appeal of Florida, First District.
    June 18, 2018
    Clark H. Henderson of Oberliesen & Henderson, Fort Walton Beach, for Appellant.
    Michael T. Webster, Shalimar, for Appellee.
   Per Curiam.

Matthew Aaron Burch appeals an order dismissing his motion to modify the final judgment of dissolution as to the parents' respective time-sharing of the children. Because the former husband did not show a substantial and unanticipated change of circumstances, the trial court properly denied modification. See Korkmaz v. Korkmaz , 200 So.3d 263 (Fla. 1st DCA 2016).

B.L. Thomas, C.J., and Osterhaus and Bilbrey, JJ., concur.

      The order of dismissal left pending the issue of modification of child support. An order subsequently entered denying modification of child support. The order dismissing the petition for modification of child custody is therefore a final, appealable order. See Fla. R. App. P. 9.110(l).


text:
    Joseph Nelson WEST, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5379
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Joseph Nelson West appeals his conviction for burglary of a dwelling with a battery, alleging that the trial court improperly denied his challenges to strike jurors for cause, and assessed an erroneous $352 battery surcharge against him at sentencing. We affirm without comment, except with respect to the fee.

Mr. West was convicted of breaking into the home of the mother of his child and committing battery. With convictions of this type, § 938.08, Florida Statutes, requires the imposition of a $201 domestic violence-related surcharge. Here, the trial court assessed a $352 surcharge. But no authority exists to support the additional $151 surcharge amount imposed by the court.

The State argues that the additional $151 amount is supported by § 775.0835(1), which allows the trial court to levy an optional fine for causing injury to another person. But the trial court did not purport to fine Mr. West, but only to impose the battery surcharge. Furthermore, the court didn't make the findings necessary to impose such a fine. Before imposing a fine under § 775.0835(1), a court must find "that the defendant has the present ability to pay the fine and finds that the impact of the fine ... will not cause [the defendant's] dependents to be dependent on public welfare." Id. The trial court did not make these findings. See Houle v. State , 33 So.3d 822, 823 (Fla. 4th DCA 2010) (striking fines imposed under § 775.0835 due to the absence of required findings). We thus remand with directions to strike $151 from the battery surcharge amount, leaving only the $201 amount authorized by § 938.08.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

Wolf, Osterhaus, and Winsor, JJ., concur.


text:
    Constance BUCHANAN, as legal guardian of John Doe 3, a fictitious name for a minor, Appellant, v. CROSSROADS UNITED METHODIST CHURCH, INC., a Florida Non-Profit Corporation, Campus Crusade for Christ, Inc., and Christopher Robert Bacca, Appellees.
    No. 1D18-1824
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Gerald B. Stewart, Jacksonville; Willie J. Walker of The Walker Law Offices, P.A., Jacksonville, for Appellant.
    Michael R. D'Lugo of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellee Campus Crusade for Christ.
    No appearance for Appellees Crossroads United Methodist Church or Christopher Robert Bacca.
   Per Curiam.

Upon consideration of Appellee's Motion to Dismiss Appeal and Appellant's Response in Opposition, the Court has determined that the appeal must be dismissed because the "Order Granting Defendant's Motion for Partial Final Judgment as to Count VIII" is not an appealable partial final judgment. See Jensen v. Whetstine , 985 So.2d 1218, 1220 (Fla. 1st DCA 2008) ("An order is not an appealable partial final order where there is a factual overlap between the pending claims and the claims resolved by the order.") Cf. Fla. R. App. P. 9.110(k). "An appeal from an order dismissing a count of a complaint, where other counts against the same parties remain, is authorized only when the dismissed count arises from a separate and distinct transaction independent of the other pending, pleaded claims." Biasetti v. Palm Beach Blood Bank, Inc. , 654 So.2d 237, 238 (Fla. 4th DCA 1995) ; see also Harrison v. J.P.A. Enters., L.L.C. , 51 So.3d 1217, 1219 (Fla. 1st DCA 2011). Appellant's complaint includes two pending counts alleging claims against the same defendant for damages stemming from the same conduct as Count VIII. Therefore, the claims are interrelated and the order on Count VIII is not independently appealable as a partial final judgment pursuant to Florida Rule of Appellate Procedure 9.110(k).

The appeal is hereby DISMISSED .

Rowe, Kelsey, and Winokur, JJ., concur.


text:
    Victor Brian HUTCHERSON, Appellant, v. Corrine Elizabeth ROGNLIE, Appellee.
    No. 1D18-1836
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Victor Brian Hutcherson, pro se, Appellant.
    No appearance for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order to show cause, the Court has determined that the order on appeal is not a final order. See Freiha v. Freiha , 169 So.3d 1292 (Fla. 1st DCA 2015) ; Hinckley v. Dep't of Revenue, ex rel. K.A.C.H. , 927 So.2d 73, 75 (Fla. 2d DCA 2006). Accordingly, the appeal is dismissed.

Rowe, Kelsey, and Winokur, JJ., concur.


text:
    Constance BUCHANAN, as legal guardian of John Doe, a fictitious name for a minor, Appellant, v. CROSSROADS UNITED METHODIST CHURCH, INC., a Florida Non-Profit Corporation, Campus Crusade for Christ, Inc., and Christopher Robert Bacca, Appellees.
    No. 1D18-1821
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Gerald B. Stewart, Jacksonville; Willie J. Walker of The Walker Law Offices, P.A., Jacksonville, for Appellant.
    Michael R. D'Lugo of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellee Campus Crusade for Christ.
    No appearance for Appellees Crossroads United Methodist Church or Christopher Robert Bacca.
   Per Curiam.

Upon consideration of Appellee's Motion to Dismiss Appeal and Appellant's Response in Opposition, the Court has determined that the appeal must be dismissed because the "Order Granting Defendant's Motion for Partial Final Judgment as to Count VIII" is not an appealable partial final judgment. See Jensen v. Whetstine , 985 So.2d 1218, 1220 (Fla. 1st DCA 2008) ("An order is not an appealable partial final order where there is a factual overlap between the pending claims and the claims resolved by the order.") Cf. Fla. R. App. P. 9.110(k). "An appeal from an order dismissing a count of a complaint, where other counts against the same parties remain, is authorized only when the dismissed count arises from a separate and distinct transaction independent of the other pending, pleaded claims." Biasetti v. Palm Beach Blood Bank, Inc. , 654 So.2d 237, 238 (Fla. 4th DCA 1995) ; see also Harrison v. J.P.A. Enters., L.L.C. , 51 So.3d 1217, 1219 (Fla. 1st DCA 2011). Appellant's complaint includes two pending counts alleging claims against the same defendant for damages stemming from the same conduct as Count VIII. Therefore, the claims are interrelated and the order on Count VIII is not independently appealable as a partial final judgment pursuant to Florida Rule of Appellate Procedure 9.110(k).

The appeal is hereby DISMISSED .

Rowe, Kelsey, and Winokur, JJ., concur.


text:
    Constance BUCHANAN, as legal guardian of John Doe 2, a fictitious name for a minor, Appellant, v. CROSSROADS UNITED METHODIST CHURCH, INC., a Florida Non-Profit Corporation, Campus Crusade for Christ, Inc., and Christopher Robert Bacca, Appellees.
    No. 1D18-1820
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Gerald B. Stewart, Jacksonville; Willie J. Walker of The Walker Law Offices, P.A., Jacksonville, for Appellant.
    Michael R. D'Lugo of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellee Campus Crusade for Christ.
    No appearance for Appellees Crossroads United Methodist Church or Christopher Robert Bacca.
   Per Curiam.

Upon consideration of Appellee's Motion to Dismiss Appeal and Appellant's Response in Opposition, the Court has determined that the appeal must be dismissed because the "Order Granting Defendant's Motion for Partial Final Judgment as to Count VIII" is not an appealable partial final judgment. See Jensen v. Whetstine , 985 So.2d 1218, 1220 (Fla. 1st DCA 2008) ("An order is not an appealable partial final order where there is a factual overlap between the pending claims and the claims resolved by the order.") Cf. Fla. R. App. P. 9.110(k). "An appeal from an order dismissing a count of a complaint, where other counts against the same parties remain, is authorized only when the dismissed count arises from a separate and distinct transaction independent of the other pending, pleaded claims." Biasetti v. Palm Beach Blood Bank, Inc. , 654 So.2d 237, 238 (Fla. 4th DCA 1995) ; see also Harrison v. J.P.A. Enters., L.L.C. , 51 So.3d 1217, 1219 (Fla. 1st DCA 2011). Appellant's complaint includes two pending counts alleging claims against the same defendant for damages stemming from the same conduct as Count VIII. Therefore, the claims are interrelated and the order on Count VIII is not independently appealable as a partial final judgment pursuant to Florida Rule of Appellate Procedure 9.110(k).

The appeal is hereby DISMISSED .

Rowe, Kelsey, and Winokur, JJ., concur.


text:
    STATE IN the INTEREST OF G.M.A. & K.K.A.
    18-153
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018
   Bethany Blackson, Calcasieu Parish District Attorney's Office, 901 Lakeshore Drive, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana

Nicholas Pizzolatto, Jr., Department of Children & Family Services, 1919 Kirkman Street, Lake Charles, LA 70601, (337) 491-2470, COUNSEL FOR APPELLEE: State of Louisiana, Department of Children & Family Services

Richard D. Moreno, Richard D. Moreno, LLC, 125 W. School Street, Lake Charles, LA 70601, (337) 433-9535, COUNSEL FOR APPELLANT: T.A.

Mike K. Stratton, Public Defender's Office, 1032 Ryan Street, Lake Charles, LA 70601, (337) 436-1718, COUNSEL FOR APPELLEE: K.D.

Ann McSpadden, Child Advocacy Program, One Lakeshore Drive, Suite 1110, Lake Charles, LA 70629, (337) 491-2461, COUNSEL FOR APPELLEES: G.M.A. K.K.A.

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AMY, Judge.

As noted in the companion matter of Tracy Alexander v. State of Louisiana, Dep't of Children and Family Services , 18-154 (La.App. 3 Cir. -/-/18), --- So.3d ----, the appellant's motion for appeal, as well as the corresponding order of appeal, included the captions and the trial court docket numbers of both the petition for nullity as well as the underlying termination of parental rights proceedings. The appellate record of each matter was lodged with this court. While the instant docket number is the appeal filed from the petition for termination of parental rights, we note that the appellant does not brief issues relating to the merits of the termination matter. Those issues are, therefore, not addressed further herein. See Uniform Rules-Courts of Appeal, Rule 2-12.4(B)(4) (providing that "[a]ll assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed.") Therefore, we leave the underlying judgment undisturbed. See also State in the Interest of G.M.A. & K.K.A. , 16-405 (La.App. 3 Cir. 9/28/16), 201 So.3d 1014, writ denied , 16-1945 (La. 11/18/16), 210 So.3d 290. All costs of this appeal are assessed against Tracy Alexander.

AFFIRMED.


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-443612
    NO. 2018-BA-0438
    Supreme Court of Louisiana.
    May 1, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the monitoring agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on February 23, 2018.

2. The period of this conditional admission shall coincide with the period of petitioner's JLAP agreement. However, petitioner's conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").

4. Upon the expiration of the term of petitioner's JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner's progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner's continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

GENOVESE, J., dissents and assigns reasons.

GENOVESE, J., dissents.

I would reject conditional admission for a period of one year.


author: BLEICH, J. (Pro Tempore )

text:
    Byron MCCALL, Plaintiff-Appellant v. Gwendylon MARSHALL, Defendant-Appellee
    No. 51,708-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 15, 2017
    BYRON McCALL, In Proper Person
    MICHAEL EUGENE KRAMER, Counsel for Appellant
    OFFICES OF WILLIE HUNTER, JR., By: Marcus Lamar Hunter, Counsel for Appellee
    Before GARRETT, COX, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

Byron McCall, plaintiff and defendant-in-reconvention, appeals the default judgment entered against him by the Monroe City Court, Ouachita Parish, Louisiana. For the following reasons, we reverse the judgment.

FACTS

On December 22, 2016, Byron McCall filed suit in Monroe City Court against Gwendolyn Marshall for breach of contract. The record suggests that Marshall's house had flood damage and she entered into a contract with McCall to perform repairs. McCall alleged in his petition that Marshall failed to pay him for the work completed on her home. He also claimed Marshall moved back into her home while he was still working on it, preventing him from completing the agreed upon repairs. His original petition did not include a specific disputed amount of unpaid fees, but did request court costs and attorney fees be awarded to him.

Marshall filed an answer and reconventional demand denying McCall's allegations and asserting his workmanship was substandard, thereby requesting full reimbursement of the fees already paid to McCall. The reconventional demand citation was ostensibly served on McCall via domiciliary service on February 1, 2017. Thereafter, McCall failed to timely answer Marshall's reconventional demand.

On March 1, 2017, Marshall filed a motion for default judgment. Marshall also requested payment of court costs and attorney fees. On March 3, 2017, a judgment was entered in favor of Marshall awarding her $35,000.00, plus $5,000.00 in attorney fees and $85.00 in court costs.

On March 6, 2017, three days after the judgment was rendered, but before he was served with the notice of judgment, McCall filed an answer to Marshall's reconventional demand. McCall then filed this suspensive appeal of the default judgment rendered against him.

DISCUSSION

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702. In parish and city courts, if the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final default judgment in favor of the plaintiff may be rendered with no preliminary default necessary. La. C.C.P. art. 4904(A). The plaintiff may obtain a final default judgment only by producing relevant and competent evidence which establishes a prima facie case. La. C.C.P. art. 4904(B). When the suit is for a sum due on an open account, promissory note, negotiable instrument, or other conventional obligation, prima facie proof may be submitted by affidavit. Id.

In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Moore Fin. Co., Inc. v. Ebarb , 46,392 (La. App. 2 Cir. 5/18/11), 70 So.3d 856, 859. When a default judgment recites that the plaintiff has produced due proof in support of his demand and that the law and evidence favor the plaintiff and are against the defendant, there is a presumption that the default judgment has been rendered upon sufficient evidence to establish a prima facie case and is correct, and the appellant has the burden of overcoming that presumption. Id. The appeal record of a default judgment without a hearing contains the entirety of the evidence before the trial judge and the appellate court is able to determine whether the evidence was competent and sufficient. Id. The determination is factual and is governed by the manifest error standard of review. Keaty v. RPM Int'l, Inc. , 51,019 (La. App. 2 Cir. 10/21/16), 208 So.3d 507, 510.

McCall sets out four assignments of error in his appeal. Of the four, only one need be addressed. McCall argues that the city court judge erred in granting default judgment because Marshall failed to produce any relevant and competent evidence to establish a prima facie case. We agree.

The record contains, chronologically: McCall's petition, the notice of filing for the petition, Marshall's answer and reconventional demand, the reconventional demand citation, a pleading entitled "Confirmation of default of (sic ) alternatively judgment on the pleadings," the judgment, McCall's answer, the notice of judgment, and McCall's motion for suspensive appeal.

There is nothing in the record to show how the city court judge determined that $35,000.00 was the correct amount to award Marshall, especially considering that the amount awarded was beyond the jurisdictional limits of the Monroe City Court. La. C.C.P. art. 4843(F).

Not one scintilla of evidence exists to support the claims made in the reconventional demand. The record in this matter is completely devoid of affidavits or any evidence to support Marshall's claims, and thus the default judgment entered against McCall is invalid.

The evidence does not support the $35,000 judgment or the award of attorney fees and court cost to Marshall; therefore, this matter must be reversed and remanded to the city court.

CONCLUSION

For the forgoing reasons, the default judgment of the Monroe City Court against Byron McCall is reversed, and this matter is remanded for further proceedings. The costs of this appeal are assessed to Gwendolyn Marshall.

REVERSED AND REMANDED.

      The spelling of Marshall's first name in the caption heading is "Gwendylon." This incorrect spelling was used in the original petition, and although Marshall's counsel spelled her name properly in other pleadings, no formal motion to correct the caption heading was ever made.

      This is the most favorable characterization that could possibly be placed upon the wording of the reconventional demand. Arguably no specific demand was made, but this deficiency is not addressed in light of our ruling.

      No oral argument was requested by either party. Marshall did not file a brief in this matter.