author: Per Curiam.

text:
    Veronica TENZER, as Natural Parent and Guardian of the Property of H.T., a minor, as Interested Person, and sole child and heir of the Ward, Appellant, v. In re: GUARDIANSHIP OF Stephen Michael TENZER, Appellee.
    No. 4D17-81
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Aaron V. Johnson of Collins, Brown, Barkett, Garavaglia & Lawn, Chartered, Vero Beach, for appellant.
    Vincent E. Schindeler of Vincent E. Schindeler, P.A., Boca Raton, for appellee.
   Per Curiam.

Appellant Veronica Tenzer, as natural parent and guardian of the property of her son, H.T., appeals a November 2016 final order approving a trust set up on behalf of her former husband. Appellant argues she was denied due process because she was not permitted to participate in the hearing seeking approval of the trust. We dismiss this appeal for lack of jurisdiction.

The record reflects that in September 2016, the circuit court entered an order striking Appellant from the trust proceeding because she was not an interested party. Appellant failed to timely appeal that order. See Fla. R. App. P. 9.110(h), (k) (2016). The September order striking Appellant as a party to the original trust proceeding was a final order because it removed Appellant from the action pertaining to the establishment of the trust. See, e.g. , Quinones v. Se. Inv. Grp. Corp. , 138 So.3d 549, 549 (Fla. 3d DCA 2014) ; Superior Fence & Rail of N. Fla. v. Lucas , 35 So.3d 104, 105 (Fla. 5th DCA 2010) (en banc); Brogdon v. Guardianship of Brogdon , 553 So.2d 299, 300 (Fla. 1st DCA 1989). Appellant's failure to appeal the September final order is a bar to any subsequent attempt to have us address whether she was an interested party to the original proceeding and, therefore, entitled to due process. Accordingly, we dismiss her appeal.

Dismissed.

Damoorgian, Forst and Kuntz, JJ., concur.


source: Caselaw Access Project

author: May, J.

license: Public Domain

text:
    Juan Emilio VILLANUEVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-534
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals his conviction and sentence for second degree murder, aggravated battery, and shooting into a building. He argues the trial court erred in: (1) denying his motion for mistrial based on juror misconduct; (2) allowing the State to admit a witness's testimony after a late disclosure; and (3) failing to grant his motion to correct sentence based on the court's imposition of consecutive minimum mandatory sentences. We affirm on issues one and two without comment, but reverse and remand the case on the third issue.

During an incident at a mobile home park, the defendant shot at a group of people in a field. Two of them died. A third person sustained injury due to a gunshot wound. The State charged the defendant with two counts of second-degree murder, one count of aggravated battery with a firearm, and one count of shooting into a building.

The jury found the defendant guilty as charged. The trial court sentenced him to 25 years and 40 years on the two counts of second-degree murder, 25 years on the aggravated battery count, and five years for shooting into a building. All sentences were to run consecutively. On the counts of second-degree murder and aggravated battery, the court imposed consecutive 25-year minimum mandatory sentences. The defendant now appeals.

In his third issue, the defendant argues the trial court erred in failing to grant his motion to correct a sentencing error. This occurred when the trial court failed to rule on the motion within sixty days. See Fla. R. Crim. P. 3.800(b)(2)(B) (providing that a motion to correct a sentencing error is deemed denied when the trial court does not rule on the motion within 60 days). He argues the trial court was under the mistaken belief it was required to impose the minimum mandatory sentences consecutively. The State agrees and requests a remand for resentencing in accordance with Williams v. State , 186 So.3d 989 (Fla. 2016).

We have de novo review. Willard v. State , 22 So.3d 864, 864 (Fla. 4th DCA 2009).

Florida's 10-20-Life statute provides:

[O]ffenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Fla. Stat. (2016) (emphasis added).

During sentencing, the trial court believed it was required to sentence the defendant to consecutive mandatory sentences in accordance with the 10-20-Life statute. Shortly thereafter, our supreme court issued Williams . There, the supreme court held that consecutive minimum terms of imprisonment for multiple offenses are not required by the 10-20-Life statute, but are permissible, when the offenses arise from a single criminal episode. Williams , 186 So.3d at 990.

Because the trial court did not have the benefit of Williams , we reverse and remand the case to the trial court for resentencing.

Affirmed in part; reversed in part; and remanded.

Taylor and Damoorgian, JJ., concur.


author: Damoorgian, J.

text:
    ADDISON CONSTRUCTION CORPORATION, Addison Development Corporation, and Danny E. Swanson, Appellants, v. Leo A. VECELLIO, Jr., Kathryn C. Vecellio, Dean DeSantis, Laura DeSantis, Deerfield Builders Supply Company, Inc., Blade Window and Door Company a/k/a Blade Construction, Gulfstream Roofing, Inc., and Eagle Window and Door, LLC, Appellees.
    Dean DeSantis and Laura DeSantis, Appellants, v. Leo A. Vecellio, Jr., Kathryn C. Vecellio, Addison Construction Corporation, a Florida corporation, Addison Development Corporation, a Florida corporation, Danny E. Swanson, Deerfield Builders Supply Company, Inc., a Florida corporation, R.V. Electric, Inc., a Florida corporation, Preferred Air Conditioning and Mechanical, Inc., a Florida corporation, L & L Ornamental Aluminum and Ironworks, Inc., a Florida corporation, Phoenix Architecture, Inc., a Florida corporation, and Alfred Cilcius, Appellees.
    No. 4D16-0618 No. 4D16-0863
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Diane H. Tutt of Conroy Simberg, Hollywood, for Addison Construction Corporation, Addison Development Corporation and Danny E. Swanson.
    Thomas A. Valdez and Robert J. Cousins of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, and Charles E. Muller II and Brian A. Lebensburger of Muller & Lebensburger, P.A., Miami, for Dean DeSantis and Laura DeSantis.
    Jack J. Aiello, G. Joseph Curley, Gregor J. Schwinghammer, Jr., and Roger Feicht of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for Leo A. Vecellio, Jr. and Kathryn C. Vecellio.
   Damoorgian, J.

The subject of these voluminous appeals, which we have sua sponte consolidated for opinion purposes, is a sprawling ocean-front residence located in the Town of Palm Beach. According to its purchasers, Appellees/Cross-Appellants, Leo and Kathryn Vecellio ("Buyers"), the residence was defectively constructed. Based on the foregoing, Buyers sued the sellers of the home, Dean and Laura DeSantis ("Sellers"); the developer and general contractor who built the home, Addison Development Corporation and Addison Construction Corporation (individually referred to as "Addison Construction" and "Addison Development" and collectively referred to as "Addison"); Addison's principal, Danny Swanson; and a myriad of subcontractors who worked on the home. Ultimately, Buyers settled with the majority of the subcontractors and recovered over $3 million in damages from Addison, Sellers, and Mr. Swanson. Addison, Sellers, and Mr. Swanson each appeal their respective judgment(s) and Buyers cross-appeal, primarily challenging the amount of damages recovered. Collectively, the parties raise more than ten issues for our consideration on appeal. We affirm in all respects and write to discuss two discrete issues: 1) the form of the judgments and 2) the court's decision to apply certain subcontractor settlements as a setoff to Buyers' recovery for Sellers' and Addison's breach of contract.

Background

In 2002, Sellers purchased the subject property and then entered into Construction and Marketing Agreements with Addison regarding the construction and sale of a new custom home. Construction of the home began in 2004 and went through late 2006. After receiving a certificate of occupancy for the home, Addison Development began marketing the property on behalf of the Sellers in early 2007. A few months later, Buyers placed an offer on the home thus beginning extensive negotiations between the parties. On November 27, 2007, Buyers and Sellers entered into a formal agreement ("Purchase Agreement") regarding the sale of the home. Addison joined the Purchase Agreement for the limited purpose of agreeing to provide a Warranty. Pursuant to the Purchase Agreement, Buyers had until December 17, 2007 to inspect the home and closing was set to take place on January 10, 2008.

During the inspection period, Buyers had air quality, roofing, and general inspections performed on their behalf. The air quality inspection indicated that there were elevated mold levels in portions of the home. Based on the inspection reports, Buyers created a punch-list of items they wanted repaired before going forward with the sale. The parties then entered into an Addendum to the Purchase Agreement wherein Sellers and Addison Development agreed to "repair, replace, or correct all items or issues addressed as concerns in the Inspection Reports." Addison then underwent efforts to fix all of the Addendum issues and, while repairs were still ongoing, the parties closed on the home. At closing, Addison Construction provided Buyers with a Warranty as required by the Purchase Agreement. The Warranty provided that Addison Construction agreed to repair any work that was proven to be defective within one year of the closing date.

In May of 2008, after Addison was done with its Addendum work, Buyers moved into the home. Shortly thereafter, Buyers began to notice that that the home still had moisture intrusion issues. Buyers contacted Addison in August of 2008 and made a warranty claim. After conducting additional testing, Addison discovered the presence of mold and water damage along the east wall of the master bedroom. At this point, Addison disclosed the fact that the master bedroom suffered water damage during 2005's Hurricane Wilma. This admission alarmed Buyers and caused them to question the integrity of the home's overall construction.

Thereafter, Buyers performed extensive testing throughout the home and discovered numerous additional latent defects. Having "lost trust" in Addison and Sellers at this point, Buyers sent Addison and the Sellers notice that they were in default of their respective obligations under the Purchase Agreement, Addendum, and Warranty. A few months later, Buyers filed their lawsuit against Addison, Mr. Swanson, Sellers, and twelve of the subcontractors who worked on the home.

Against Addison, the Buyers alleged causes of action for violation of the Florida Building Code, breach of contract, negligent failure to disclose, fraud, and violation of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"). Against Sellers, they alleged causes of action for breach of contract, negligent failure to disclose, fraud, violation of FDUTPA, and securities fraud. Against the subcontractors whom they were not in privity with, Buyers alleged a cause of action for violation of the Florida Building Code. Finally, against Mr. Swanson, they alleged causes of action for violation of the Florida Building Code, negligent failure to disclose, fraud and FDUTPA. Because the Purchase Agreement and Warranty contained a jury trial waiver, all claims against Sellers and Addison were set for a bench trial. The remaining claims, including the claims against Mr. Swanson, were set for a jury trial.

Before trial, Buyers settled with ten of the subcontractors. The sum total of the Buyers' settlements with the subcontractors was $2,725,000. Buyers moved in limine to exclude mention of these settlements. In their motion, Buyers represented that the settlements resolved their building code claims against Mr. Swanson as well as their building code claims relating to: the main entry door of the house, stucco, cast stone, exterior balcony and interior railings, steel columns and beams, truss girder hanger, concrete defects, exterior wall coverings in the summer kitchen, roof trusses, HVAC, electrical, and plumbing. They also argued that although "evidence of the settlement discussions and negotiations pertaining to these issues may be relevant as evidence of a setoff to any damages awarded to [Buyers], ... evidence relating to setoff is premature [and] should be made at the conclusion of the trial outside the jury's presence so as to not confuse or unduly prejudice the jury." The court granted Buyers' motion without elaboration.

Following nearly ten weeks of evidence and testimony, the jury entered a special verdict wherein it found that neither of the two remaining subcontractors (the roofer and window/door installer) violated the Florida Building Code. The jury also found that Mr. Swanson did not violate FDUTPA but did knowingly made a false statement or intentional omission concerning the Hurricane Wilma water damage with the intention that Buyers would rely on the statement or omission and which reliance called injury to Buyers. Based on its fraud finding, the jury awarded Buyers $78,984.30 in damages against Mr. Swanson.

After the non-jury proceedings, the court entered an extensive order making detailed and thorough findings regarding the defects in the home and Buyers' entitlement to damages. The court found that none of the parties violated the Florida Building Code, FDUTPA, or committed the tort of negligent failure to disclose. Likewise, it found that Sellers did not commit securities fraud. It did find, however, that Addison committed fraud by failing to disclose, post-closing, information "regarding water entry into the Home associated with Hurricane Wilma and leaking through or around the center window in the Master Bedroom." It also found that when Addison committed the fraud, it was acting as Sellers' actual and apparent agent and, therefore, also found Sellers liable. Finally, the court found that Addison and Sellers breached their respective contractual duties under the Purchase Agreement, Addendum, and Warranty.

With respect to damages, the court found that Buyers were entitled to a total of over $3.5 million in damages associated with the repair and loss of use of their home. It found that $2,525,684.72 of those damages were recoverable against Addison Construction under the Warranty; $3,339,654.04 were recoverable against Addison Development and Sellers under the Addendum; and $2,365,651.01 were recoverable against Sellers under the Purchase Agreement. Many of these damages overlapped.

Pertaining to its fraud finding, the court found that Buyers would not have incurred some of the afore-outlined repair and loss of use damages had Addison and Sellers disclosed their water intrusion knowledge earlier on. The court found that Buyers incurred $78,984.30 in damages flowing from this fraud, which was comprised of Buyers' inspection fees and the cost of replacing the wood floors in the master bedroom. These damages also overlapped with the breach of contract damages and the fraud damages against Mr. Swanson.

Post-trial, Mr. Swanson, Sellers and Addison moved for the court to apply the subcontractor settlements as setoffs against each of the judgments. Looking at the scope of the subcontractor settlements as outlined in the individual releases and comparing them with the damages requested and recovered by Buyers in their breach of contract claims against Addison and Sellers, the court determined that "the pleadings, evidence, and argument [do not] demonstrate that [Buyers] either reduced their claims for damages at trial or removed claims for damages at trial related to the settled scopes of work that will have an impact on the Court's evaluation of whether to award [Addison and Sellers] a set off prior to the entry of a Final Judgment." Therefore, the court granted Addison and Sellers a setoff of the subcontractor settlements against the breach of contract awards. However, the court reached a different conclusion with respect to the fraud awards. It found that the a setoff was not warranted because "there were no allegations, evidence or arguments that Mr. Swanson[, Addison, and Sellers] could be liable [for] fraud based upon any actions of the Settled Defendants."

Thereafter, the court entered an Omnibus Final Judgment as to all of Buyers' non-jury claims against Sellers and Addison. In the judgment, the court awarded Buyers the following amounts, which accounted for the setoffs and prejudgment interest: 1) $518,606.89 against Addison Construction under the Warranty; 2) $2,652.284.83 against Addison Development and Sellers under the Addendum; 3) $852,920.84 against Sellers under the Purchase Agreement; and 4) $120,341.78 against Addison and Sellers for Fraud. These appeals follow.

Analysis

1) Form of the Judgments

We begin our analysis by addressing the court's decision to reduce the fraud damages against the parties and the damages under each contract to separate judgments. It is undisputed that each of these judgments contained overlapping damages. For example, all of the fraud and contract judgments encompassed damages associated with replacing the master bedroom floor. It is also undisputed that under Florida law, a party is not permitted to recover for the same damages more than once. What is disputed is whether the potential for double recovery needed to be addressed pre-judgment or post-judgment. Addison argues the judgments should have indicated they were joint and several on their face. Buyers counter that Addison is arguing about a "non-issue" because the "law is clear that a party may not collect the same damages twice [and this] is a collection issue." We agree with Buyers.

The Restatement of Judgments is instructive to this issue. Section 49 of the Second Restatement provides that:

A judgment against one person liable for a loss does not terminate a claim that the injured party may have against another person who may be liable therefor.

Restatement (Second) of Judgments § 49 (Am. Law Inst. 1982). The author of the restatement explained the rational for this rule as follows:

When a person suffers injury as the result of the concurrent or consecutive acts of two or more persons, he has a claim against each of them.... Accordingly, a judgment for or against one obligor does not result in merger or bar of the claim that the injured party may have against another obligor.... The rule that there are separate claims against each obligor applies whether the obligation results from a tort, a breach of contract, or other obligation.
...
Under rules originating in an early period of legal development, however, rendition of judgment against one of several obligors sometimes had the effect of extinguishing a claim against another. Some of these rules were based on the notion that a "joint" obligation could be enforced only through a single action.... Other rules having like effect were expressed in terms of requiring an "election of remedies." Both types of rules were often justified as a means of preventing double recovery for the loss involved. These rules are now obsolete. Double recovery is foreclosed by the rule that only one satisfaction may be obtained for a loss that is the subject of two or more judgments.

Restatement (Second) of Judgments § 49 cmt. a (Am. Law Inst. 1982).

The "rule" of satisfaction as a preventive to double recovery is set forth in section 50 of the Restatement as follows:

When a judgment has been rendered against one of several persons each of whom is liable for a loss claimed in the action on which the judgment is based:
(1) A satisfaction or release of the judgment, or covenant not to execute upon it, or other agreement terminating in whole or in part the judgment debtor's obligation, does not discharge the liability of any of the other persons liable for the loss, except:
a. To the extent that the agreement may so provide; and
b. To the extent required by the law of suretyship.
(2) Any consideration received by the judgment creditor in payment of the judgment debtor's obligation discharges, to the extent of the amount of value received, the liability to the judgment creditor of all other persons liable for the loss.

Restatement (Second) of Judgments § 50 (Am. Law Inst. 1982).

The basis of the foregoing principles is rooted in fairness: if a party is unable to collect on a judgment, it should not be precluded from seeking other consistent but separate manners of recovery against equally liable persons. See Heller v. Held , 817 So.2d 1023, 1027 (Fla. 4th DCA 2002) (attorney who held a charging lien and judgment against client in a case which settled after attorney withdrew was not precluded from seeking recovery from settling defendants whose actions thwarted attorney's enforcement of lien against settlement proceeds). Alternatively, if in satisfying a judgment, a party recovers damages encompassed by another outstanding judgment, it should not be entitled to double recovery. Id. Based on the foregoing, Buyers properly obtained multiple judgments against different parties for overlapping damages. Buyers may not, however, satisfy each judgment entirely. Rather, Mr. Swanson, Addison, and Sellers may use satisfaction of any of the overlapping items of compensation in the various judgments as bar to payment of the remaining judgments. But, as argued by Buyers, this is a post-judgment collections issue.

2) The Setoff Ruling

Addison, Mr. Swanson, and Buyers each take issue with the court's setoff determinations. Addison and Mr. Swanson maintain that the court should have extended the subcontractor settlement setoff to the fraud judgments entered against Addison and Mr. Swanson. In their cross-appeals, Buyers argue that the court erred in applying the entirety of the $2.75 million subcontractor settlements as a setoff to the damage awards against Addison and Sellers under the Purchase Agreement, Addendum and Warranty. Buyers assert several grounds for this argument, the main ground being that the damages encompassed by the subcontractor settlements did not overlap with the contract based damages awarded against Addison and Sellers. We hold that the trial court properly applied the subcontractor settlements as a setoff against all of the breach of contract awards and properly denied a setoff with respect to the fraud awards.

"Whether the trial court awarded a proper set-off is a pure question of law reviewed de novo , and 'no deference is given to the judgment of the lower courts.' " Cornerstone SMR, Inc. v. Bank of Am., N.A. , 163 So.3d 565, 568 (Fla. 4th DCA 2015) (quoting D'Angelo v. Fitzmaurice , 863 So.2d 311, 314 (Fla. 2003) ). Setoffs for collateral recoveries are available pursuant to sections 768.041(2) and 46.015(2) of the Florida Statutes, (2015). Both sections contain nearly identical language, however, section 46.015 is located in the civil practice and procedure title of the Florida Statutes and section 768.041 is located in the torts title. Because the instant case was founded in contract and not in tort, the court found that section 46.015(2) was the controlling statute. To that end, section 46.015(2) provides that if a defendant demonstrates that a plaintiff has released "any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment." § 46.015(2), Fla. Stat. (2015).

The purpose of the setoff statutes is to prevent a windfall to a plaintiff by way of double recovery. See Cornerstone , 163 So.3d at 569 ("The setoff provision in section 768.041(2) 'was designed to prevent duplicate or overlapping compensation for identical damages.' " (quoting Gordon v. Marvin M. Rosenberg, D.D.S., P.A. , 654 So.2d 643, 644 (Fla. 4th DCA 1995) ). Thus, any "settlement recovery sought to be set off must be 'in partial satisfaction for the damages sued for.' " Escadote I Corp. v. Ocean Three Ltd. P'ship , 211 So.3d 1059, 1062 (Fla. 3d DCA 2016) (quoting § 768.041(2), Fla. Stat. (2010) ). Accordingly, "[i]f the settlement funds are applicable to a claim asserted only against the settling co-defendant, the non-settling co-defendants are not eligible for a set-off in the amount of the settlement." Id. In the same vein, "[w]hen a settlement recovery is allocated between claims with different and distinctive damage elements, set-off should only be allowed to co-defendants jointly and severally liable for the same claims." Id. at 1063 (emphasis provided).

The necessity of same damages sued for as a prerequisite for a setoff is illustrated by Escadote I Corp. There, the owner of a condo unit sued the developer, contractor and condo association, alleging several causes of action based on the presence of mold in the condo unit. 211 So.3d at 1060-61. Against the condo association, the owner alleged a statutory claim for failure to maintain which also included a demand for attorney's fees under the applicable statute. Id. at 1061. The owner did not make any claim of attorney's fees against either the contractor or developer. Id. at 1063-64. Before the jury returned its verdict, the owner settled its claim against the association for $375,000. Id. at 1061. The settlement agreement delineated that $500 of the settlement was attributable to damages and the remaining sum was intended to reimburse the owner for its attorney's fees. Id. The jury found the developer and contractor jointly and severally liable for over $2 million in damages. Id. Thereafter, the developer and contractor successfully moved to apply the entirety of the owner's settlement with the condo association as a setoff against the damages awarded against them. Id. at 1062. The appellate court reversed, holding that because the owner did not make any claim for attorney's fees against either the developer or contractor, the portion of the condo association settlement which was specifically apportioned for attorney's fees could not be applied as a setoff against the damages awarded against the contractor and developer. Id. at 1063-65.

In comparison, in Centex-Rooney Construction Co., v. Martin County. , 706 So.2d 20, 29 (Fla. 4th DCA 1997), we held that a county's pretrial settlements with the architect and mason who worked on the construction of a courthouse were correctly applied as a setoff to the county's recovery against the construction manager because the "County's claimed damages [recovered against the construction manager] were not separate and distinct from the damages compensated by its settlements."

Although the same-damages-sued-for prerequisite seems simple enough in theory, because settlement agreements are often so broadly worded, in practice it is not always easy to determine whether damages paid as part of a settlement overlap with damages awarded against a remaining co-defendant. To that end, the law provides that if settlement proceeds are "not apportioned between (a) claims for which co-defendants are jointly and severally liable with the settling co-defendant, and (b) claims which were only asserted against the settling co-defendant, the entire amount of the undifferentiated recovery is allowable as a set-off." Escadote I Corp. , 211 So.3d at 1063. See also Cornerstone , 163 So.3d at 569 ("Where a settlement is undifferentiated and general, the aggregate of the amount of the settlement should be set off against the judgment."). This is the case even where some of the settlement amount may have been for different damages and the settlement amount exceeded the damages it setoff. See Cornerstone , 163 So.3d at 569.

For example, in Cornerstone , a company sued its former bookkeeper for conversion after it learned that over the course of four years, the bookkeeper deposited $478,490 worth of checks made out the company in her own account at Bank of America. Id. at 566-67. The company also sued Bank of America for its role in allowing the bookkeeper to deposit the stolen checks in her account. Id. at 566. Prior to trial, the company settled with the bookkeeper for $285,625. Id. at 571. It was then awarded $146,743.23 in damages against Bank of America, a number which was far lower than the company's actual damages because the statute of limitations barred recovery against the bank for about two-thirds of the embezzled checks. Id. at 567. Bank of America moved to apply the company's settlement with the bookkeeper as a setoff against its liability. Id. The company, in turn, argued that setoff was not appropriate because the settlement with the bookkeeper covered damages not encompassed by the award against Bank of America due to the operation of the statute of limitations. Id. Attempting its best to do equity, the court pro-rated the settlement with the bookkeeper based on the percentage of checks cashed after the statute of limitations bar and applied the pro-rated number as a setoff. Id. at 568.

On appeal, we reversed the trial court's pro-rated setoff and held that the entire bookkeeper settlement amount should have been applied as a setoff against the Bank of America award. Id. at 569. The basis of our decision was that the company's settlement agreement with the bookkeeper "did not allocate the damages between claims." Id. Although we recognized that the settlement probably encompassed damages which the company could not recover against Bank of America due to the statute of limitations and, therefore, may have provided a windfall to the Bank, we reasoned that it was the company's "own failure to allocate the settlement agreement which has produced this result." Id. at 570. We concluded that without an allocation, it was simply "impossible to know whether [the company] would be receiving a duplicate payment" and therefore, the trial court was required to offset the damage award against the bank by the total amount of the bookkeeper settlement. Id. In doing so, we also rejected the company's attempt to explain the scope of its settlement agreement with the bookkeeper based on authority establishing that courts are required to " 'ignore a private unilateral apportionment of settlement proceeds among plaintiffs, when the settlement agreement itself fails to apportion the proceeds among the plaintiffs.' " Id. at 569 (quoting Dionese v. City of W. Palm Beach , 500 So.2d 1347, 1348 (Fla. 1987) ).

In the instant case, the court underwent a thorough analysis utilizing the foregoing principles when arriving at its setoff determination. Specifically, it looked at the scope of each subcontractor settlement and compared it to the damages Mr. Swanson, Addison and Sellers were "sued for." The court began by examining the controlling complaint, wherein Buyers alleged a singular cause of action against each of the settled subcontractors for violation of the Florida Building Code. Within that count, Buyers alleged that because of the various subcontractors' defective workmanship, Buyers "suffered both direct and special damages, including, without limitation, consequential loss of use of the Residence, diminution in value, carrying costs, relocation expenses, expert testing and consulting expenses, legal expenses, property damage, repair costs, replacement material and supply expenses, security and staff expenses, moving and storage expenses, taxes, interest and insurance expenses, permit and inspection expenses, and other consequential damages." In their breach of contract(s) count against Sellers and Addison, Buyers alleged that they suffered the exact damages. In the fraud counts, however, the Buyers alleged that the damages they suffered were those flowing from Mr. Swanson, Addison, and the Seller's intentional failure to disclose and cover up of construction defects which caused water intrusion in the home.

Based on the allegations of the complaint, the court found that a setoff against the fraud judgments was not warranted because "there were no allegations, evidence or arguments that Mr. Swanson[, Addison, and Sellers] could be liable [for] fraud based upon any actions of the Settled Defendants." The court's finding in this respect was sound. As discussed in greater detail above, the settlements with the settled subcontractors were for damages caused by their respective scopes of work on the home. Alternatively, the damages "sued for" under the fraud counts were those flowing from Mr. Swanson's, Addison's, and the Seller's intentional failure to disclose water damage. These are not the same.

Turning to the contract based damages, the court found that the damages "sued for" under the contracts and the damages "sued for" under the count against the subcontractors were identical. Buyers argue that this determination was erroneous because the scope of damages they sought against the subcontractors should be dictated by what they could have actually recovered against the subcontractors, not what they claimed in their complaint. The law suggests otherwise. The plain language of section 46.015(2) establishes that when determining whether to apply a settlement as a setoff, the court must determine if the settlement was made "in partial satisfaction of the damages sued for." § 46.015(2), Fla. Stat. Accordingly, when making a setoff decision, it does not matter what the party was actually entitled to recover, "[i]nstead, what matters is [what the plaintiff] sued for." Blasland, Bouck & Lee, Inc. v. City of N. Miami , 283 F.3d 1286, 1296 (11th Cir. 2002) (interpreting section 46.015(2) ). Here, although Buyers may not have been entitled to recover all damages requested in their complaint against each of the settled subcontractors, the fact remains that those are the damages they "sued for."

Next, the court looked to each of the settlement agreements to determine their respective scopes. The court noted that each of the settlement agreements and releases between Buyers and the settled subcontractors provided that Buyers "agreed not to seek recovery against Mr. Swanson and [Addison] for damages allegedly caused by each Settled Defendant's respective scope of work." None of the settlement agreements differentiated the damages being settled for and all contained broad releases of the settled subcontractors which were not limited to releases for damages related to violation of the Florida Building Code. Based on the foregoing, the court concluded that neither "the pleadings, evidence and argument demonstrate that [Buyers] either reduced their [contract based] claims for damages at trial or removed claims for damages at trial related to the settled scopes of work that will have an impact on the Court's evaluation of whether to award the Defendants a set off prior to the entry of Final Judgment."

Buyers also disagree with this conclusion, arguing that the court should have interpreted the settlement agreements consistent with the narrowness of the facts of the case and not the broadness of their language. In support of their position, Buyers point to testimony offered at the hearing on their motion for reconsideration of the court's setoff determination. There, Buyers' engineering expert testified that none of the evidence of damage to the home presented at trial was encompassed by the subcontractor settlements. However, this post-settlement attempt to differentiate the damages settled-for has no legal effect. As we explained in Cornerstone , a court may not apportion settlement proceeds based on the representation of one of the settling parties when the agreement itself does not do the same. 163 So.3d at 569-70. See also Nauman v. Eason , 572 So.2d 982, 983-85 (Fla. 1st DCA 1990) (holding that it was error for trial court to apportion settlement agreement among plaintiffs where settlement was silent on the subject).

Lastly, Buyers assert that the end result was unfair, emphatically arguing that Addison and Sellers ultimately received a setoff for damages not recovered in the damage awards against Addison and Sellers. They point to their settlement with a pool subcontractor as an example. There is no dispute that Buyers did not present any evidence of pool damage during either trial and there is also no disputing that the court did not delineate any damages specific to a pool in its final judgment. Although it seems likely that Addison and Sellers received a setoff for pool damages that were not awarded, because the settlement agreement with the pool contractor does not differentiate the settled damages, arriving at the conclusion proffered by Buyers still requires a degree of speculation-the court would have to assume that any damages caused by the pool subcontractor were to the pool. But, what if the pool contractor caused damage to the surrounding landscaping features during their work on the pool? What if during settlement talks Buyers claimed that they should be reimbursed for their loss of use of the pool while it was being repaired? Buyers sued the subcontractors, Sellers, and Addison for a wide range of damages and as a result, paver damage, landscaping lighting damage, and loss of use were all elements of compensation awarded against Addison and Sellers. Without differentiation in the settlement agreement, there is simply no way to know if there was any overlap.

Further exemplifying the need for allocation of damages in a settlement agreement to prevent duplicate recovery are Buyers' settlements with the stucco, cast-stone, and the painting and caulking subcontractors. Buyers claim that they did not introduce any evidence of settled damages caused by these subcontractors, but as the court outlined in its final omnibus order, Buyers' evidence showed that "the construction elements that may (or in specific instances may not) have contributed to the water intrusion include, but are not necessarily limited to, improper or no waterproofing, painting, calking, stucco, and cast stone installation." Without differentiation, it seems more than likely that the settlement agreements with stucco, cast-stone, and painting and caulking subcontractors (just as an example) encompassed damages awarded against Addison and Sellers under the Purchase Agreement, Addendum, and Warranty.

In sum, because the subcontractor settlement agreements failed to differentiate the damages settled for, it is simply "impossible to know whether [Buyers] would be receiving a duplicate payment" for their breach of contract based claims. Cornerstone , 163 So.3d at 569-70. If Buyers wanted to prevent this problem, they should have allocated the damages encompassed in each subcontractor settlement. Buyers made a strategic and understandable decision not to do so, and this is the end result. We acknowledge that this may seem harsh, but it is the only pragmatic result. If courts were required to delve into the scope of undifferentiated settlement agreements for the purposes of making a setoff determination, then post-judgment proceedings would turn into a second trial. Principles of judicial economy prohibit this result. Accordingly, under the direction of Cornerstone , the trial court was required to offset the breach of contract damages awarded against Addison and Sellers by the total amount of the subcontractor settlements. Id.

Conclusion

Although this was an extremely complicated and lengthy case, the record, especially the trial court's many orders, reflect that the court spent a great deal of time considering and carefully analyzing each of the issues raised on appeal and, in doing so, ensured that the parties had a fair trial based on the evidence. Under the circumstances, we affirm in all respects.

Affirmed.

Warner and May, JJ., concur.

      Sellers made their own argument against multiple judgments in their brief but abandoned the argument and sided with Buyers' position at oral argument.

      This is not to say that Buyers may actually satisfy both the fraud and the breach of contract judgments as they contain duplicate items of compensation. See Fla. Temps. Inc. v. Shannon Props., Inc. , 645 So.2d 102, 104 (Fla. 2d DCA 1994) (holding that because a plaintiff was not entitled to recover "damages for fraud that duplicate damages awarded for breach of the contract," the court was required to enter a judgment "clarifying whether any award for breach of contract duplicates an award for fraud" in order to prevent the plaintiff from recovering both). However, it remains that under these circumstances, a setoff was not the proper mechanism to prevent double recovery. Rather, as discussed in our analysis on the form of judgment issue, Mr. Swanson, Addison, and Sellers may use satisfaction of any of the overlapping items of compensation in the breach judgments as a bar to payment of the fraud judgments.


author: Levine, J.

text:
    Michael BIONDI, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1711
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

This court must decide if a Pembroke Pines police officer working as a special deputy assigned to the Broward County Sheriff's Office (BSO) Multi-Agency Gang Task Force was authorized to stop appellant in the City of Hollywood for a traffic citation. We hold that the state presented insufficient evidence to demonstrate that the officer had jurisdiction to stop appellant for a traffic citation. Therefore, we reverse.

While driving in the City of Hollywood, a Pembroke Pines police officer stopped appellant for a seatbelt violation. At the time, the officer was working as a special deputy as part of the Broward County Sheriff's Office Multi-Agency Gang Task Force. The officer called for a K-9 unit. Another Pembroke Pines officer, also a member of the gang task force, arrived with his canine partner. Appellant consented to a search of his car, and three capsules of heroin were found in an envelope above appellant's seat.

Appellant unsuccessfully moved to suppress the evidence obtained during the traffic stop as the fruits of an unlawful search, arguing that the Pembroke Pines officer lacked jurisdiction to stop his vehicle in the City of Hollywood. During the suppression hearing, the state's evidence consisted solely of the officer's Notice of Appointment to the gang task force and the officer's testimony regarding his understanding of his authority. The state presented no evidence during the suppression hearing or at trial indicating that the stop or the heroin was gang-related.

At trial, the evidence showed that appellant had agreed to drive his roommate and a friend down to Miami from his home in Hollywood on the day of the stop. While in Miami, the roommate purchased heroin while appellant waited in his car. During the ride home, the roommate handed appellant an envelope containing three small heroin capsules. Appellant took the envelope and placed it in the driver's side visor above him.

The jury convicted appellant of possession of heroin. Appellant appeals raising several issues, including the denial of his motion to suppress.

In reviewing a ruling on a motion to suppress, we defer to the trial court's factual findings, but review its legal conclusions de novo. Woods v. State , 25 So.3d 669, 670 (Fla. 4th DCA 2010).

The officer's appointment as a special deputy is governed by section 30.09(4)(b), Florida Statutes. That section allows special deputies to be appointed for a number of permitted purposes, including undercover investigative work. § 30.09(4)(b), Fla. Stat. (2016).

Section 30.09 has been interpreted as granting only specific, limited powers to special deputies. See generally Ramer v. State , 530 So.2d 915 (Fla. 1988). In appointing a special deputy, a county sheriff may not grant "unrestrained power" or delegate the sheriff's law enforcement functions to the deputized official. Id. at 917-18. Thus, while a special deputy is authorized to use the powers available to a sheriff when performing activities specifically allowed by the statute or as part of the specific program under which he is deputized, he may not exercise that power when he is acting beyond the scope of his role as a special deputy. See id. at 917.

Here, the officer's Notice of Appointment to the gang task force specifically stated that the officer was appointed as a special deputy pursuant to section 30.09(4)(b). The Notice of Appointment granted the officer only those "powers of arrest reasonable and necessary to perform undercover investigative work for the Task Force." Thus, the terms of the Notice of Appointment granted members of the gang task force authority to arrest only while doing undercover, task force-related investigations.

The plain language of the Notice of Appointment did not authorize officers to use their special deputy powers "solely to initiate or further an investigation beyond the Task Force unless pursuant to a written authorization of the Sheriff or his designee." Relatedly, the Notice of Appointment provided that a special deputy "does not possess general authority to act as a law enforcement representative or deputy [BSO] sheriff."

The officer did not testify that he was working undercover on the day of the stop. Nor did he testify that he was performing investigative work related to the gang task force when he pulled appellant over for a seatbelt violation. Thus, his stop exceeded the grant of authority in the Notice of Appointment, which was the sole evidence of his authority produced by the state below.

The officer testified that he believed he had the same authority as a BSO officer based on his conversation with a BSO deputy supervising the "sweep day" on the day of the arrest. Significantly, this particular BSO deputy did not testify at trial, nor did the state produce any Standard Operating Procedures that might support the officer's interpretation. That the sweep day activity in question was apparently a prior task force practice does not establish authority. Per the officer's testimony, on monthly sweep days, deputized task force members would meet with a BSO deputy and then divide up to patrol various parts of Broward County. Notably, he did not testify that, on the day he stopped appellant, he was conducting a gang-related "sweep." Instead, he likened that day's sweep to a routine law enforcement patrol.

The officer's interpretation of the task force's authority directly contradicted the Notice of Appointment's provision that task force members do not, in fact, have general BSO law enforcement authority. The plain language of the Notice of Appointment limited the officer's special deputy powers to those related to the gang task force and did not authorize non-task force arrests. Although he was working with the gang task force on the day of the arrest, that work was not within the scope of "undercover investigative work" allowed by the Notice of Appointment.

In sum, the state presented no evidence supplementing the Notice of Appointment's clear terms. The officer's testimony, which conflicted with the Notice of Appointment's limitations on deputy authority, was insufficient to show that he had jurisdiction to make the stop. The lack of evidence demonstrating jurisdiction mandates reversal here.

Reversed .

Conner and Forst, JJ., concur.

      Because we reverse the trial court's order on the motion to suppress, we need not reach the other issues raised in this appeal.

      The relevant portions of the Notice of Appointment are reproduced below:
      [S]pecial deputy status shall be limited to participating in the Broward County Multi-Agency Gang Task Force (hereinafter referred to as Task Force) with powers of arrest reasonable and necessary to perform undercover investigative work for the Task Force.
      The above limited powers of authority are subject to the following conditions:
      (1) Special deputy's authority shall not be valid outside the scope of the Task Force.
      ....
      (6) Special deputy shall act in accordance with the Task Force's Standard Operating Procedures (hereinafter referred to as Task Force's SOPs) and the Sheriff's Office of Broward County's Standard Operating Procedures (hereinafter referred to as Sheriff's SOPs). Therefore, before special deputy takes any action utilizing the power received pursuant to this appointment, he/she will be completely familiarized with all of the Task Force and Sheriff's SOPs, rules, regulations, and directives and completely comply with them to the letter.
      ....
      (8) Under no circumstances will the special deputy exercise his/her powers as a special deputy solely to initiate or further an investigation beyond the Task Force unless pursuant to written authorization of the Sheriff or his designee.
      ....
      (9) Special deputy does not possess general authority to act as a law enforcement representative or deputy sheriff of the Sheriff's Office of Broward County.

      The Office of the Attorney General has concluded that mutual aid agreements wherein law enforcement agencies assist one another "do[ ] not contemplate a complete assumption of law enforcement services by an assisting agency, but [are] more limited in scope." Op. Att'y Gen. Fla. 02-46 (2002). Although an Attorney General's opinion is not binding on this court, we treat it as "highly persuasive." State v. Family Bank of Hallandale , 623 So.2d 474, 478 (Fla. 1993).


text:
    Lenos TRIGEORGIS, Appellant, v. George TRIGEORGIS, Appellee.
    No. 4D17-0262
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2018]
    Michael B. Buckley of Buckley Law Group, P.A., St. Petersburg, for appellant.
    Peter A. Tappert of Weissman & Dervishi, P.A., Miami, for appellee.
   Damoorgian, J.

Lenos Trigeorgis ("Father") appeals the final judgment entered in George Trigeorgis' ("Son") slander of title action. Son cross-appeals the final judgment entered on Father's money lent counterclaim. Because Son failed to establish all of the elements for a slander of title claim, we reverse the slander of title judgment. We also reverse and remand the money lent judgment for recalculation of the prejudgment interest.

At its core, this case involves a bitter dispute between Father and Son regarding repayment of money lent. In late 2009, Father and Son decided to purchase a condo as an investment property. The original plan was for the condo to be purchased in both of their names and for each party to contribute towards the purchase price. Ultimately, however, it was decided that Father would fund the entire purchase price and that the condo would be purchased in Son's name only. This arrangement was contingent on Son agreeing to repay the loan within three years at an 8% annual interest rate. To that end, Father drafted a loan agreement memorializing the above described terms and transferred a total of $231,000 to Son. On April 23, 2010, Son purchased the subject condo for $185,000. At the time of closing, Son had not yet signed the loan agreement.

After the closing, Father asked Son to sign the written loan agreement and Son assured him that he would. On July 13, 2011, nearly fifteen months after the closing, Son took it upon himself to revise and sign the loan agreement drafted by Father. That agreement, titled "Loan Agreement for Purchase of Symphony Condo Unit 1704-S" ("the Agreement"), provided as follows:

[Son] hereby agrees to borrow $187,908 from [Father] for the purchase of Unit 1704-S at the Symphony Condominium, 600 West Las Olas Boulevard # 1704-S, Fort Lauderdale, FL 33312, using the property as collateral.
The loan is due and payable in 3 years with an accrued 8% annual interest. If the amount due is not paid in 3 years, [Father] will receive ownership of the property. That is, [Father] can obtain the property in lieu of the amount due (principal plus interest) in 3 years.

Shortly after signing the Agreement, Son had a falling out with Father and decided to sell the condo. Upon learning that the condo had been listed for sale, Father filed a notice of interest in real property in the public records claiming to have an interest in the subject condo. Attached to the notice was a copy of the Agreement drafted and signed by Son.

In July of 2012, Son sued Father for slander of title and to quiet title. In his complaint, Son alleged that had Father not filed the notice of interest, he would have been able to sell the condo. Father answered the complaint and raised as an affirmative defense that the Agreement attached to the notice of interest was a true and valid agreement. Father also counterclaimed for money lent, arguing that Son owed him $187,908 plus interest for the money lent to purchase the condo.

The matter proceeded to a bench trial. With regard to Son's slander of title action, Son testified, generally, that as a result of the notice of interest, he was unable to sell the condo. No specific evidence was presented showing how or if the notice of interest induced others not to deal with Son. With regard to Father's money lent counterclaim, Father testified that in total, he lent Son $231,000 for the purchase of the condo. Father later admitted that $70,000 had already been paid back, thus reducing the amount owed to $161,000. Son readily admitted that he owed Father money, however testified that he had already paid back $97,000 and therefore only owed a remaining $134,000. Son also acknowledged that at the time of closing, the plan was for there to be a formal loan agreement in place similar to the one that he signed in 2011.

At the conclusion of the trial, the court found in favor of Son on his slander of title action and awarded him a total of $64,720.33 in attorney's fees and costs as damages. The court, however, offered no analysis to accompany its finding. The court also found in favor of Father on his money lent claim and awarded him the principal amount of $134,000. The court did not award Father the 8% accrued interest provided for in the Agreement as additional direct damages. The court did, however, award Father the following prejudgment interest:

[P]re-judgment interest at the statutory rate from April 23, 2010, through October 30, 2011, in the amount of $12,093.54 ($11,587.78 at 6% and $505.76 at 4.75%), and at the rate of 8% from October 31, 2011, through the date of this Final Judgment in the amount of $55,127.49, being in the total amount of interest of $67,221.03.

This appeal follows.

Slander of Title

In a slander of title action, also known as a disparagement of title or property action, the plaintiff must prove the following five elements:

(1) A falsehood (2) has been published, or communicated to a third person (3) when the defendant-publisher knows or reasonably should know that it will likely result in inducing others not to deal with the plaintiff and (4) in fact, the falsehood does play a material and substantial part in inducing others not to deal with the plaintiff; and (5) special damages are proximately caused as a result of the published falsehood.

McAllister v. Breakers Seville Ass'n , 981 So.2d 566, 573 (Fla. 4th DCA 2008) (quoting Bothmann v. Harrington , 458 So.2d 1163, 1168 (Fla. 3d DCA 1984) ). In this case, the evidence did not establish that there was a falsehood or that such falsehood played a material and substantial part in inducing others not to deal with Son.

First, enforceable or not, the Agreement attached to the notice of interest did not constitute a falsehood because the record reflects that Father recorded the notice of interest under the belief that the parties had an enforceable agreement. See Brown v. Kelly , 545 So.2d 518, 520 (Fla. 5th DCA 1989) (holding that a statement in an estoppel letter did not constitute a falsehood for slander of title purposes because the statement "was clearly predicated on the seller's belief, albeit mistaken, that he had a valid and enforceable agreement with the buyer"). Likewise, the fact that Father was owed substantially less money at the time of the trial does not change the fact that the figure listed in the Agreement accurately reflected the amounts lent to Son for the purchase of the condo in 2010. It is worthwhile noting that Father did not file a claim of lien in this case but rather a claim of interest . Cf. IberiaBank v. Coconut 41, LLC , 984 F.Supp.2d 1283, 1304 (M.D. Fla. 2013) (finding that the claim of lien was substantively false because the amount of the lien was substantially lower than the total claim of lien asserted on the property).

Second, even if the notice of interest was a falsehood, Son did not prove that "in fact, the falsehood [played] a material and substantial part in inducing others not to deal with the plaintiff." McAllister , 981 So.2d at 573 (quoting Bothmann , 458 So.2d at 1168 ). To satisfy this element, the plaintiff must present specific evidence showing exactly how the falsehood induced others not to deal with the plaintiff. See, e.g. , id. at 574 (holding that the plaintiff satisfied the material and substantial part element by testifying that several of his prospective tenants were unable to rent his units due to the recording of a lien and by presenting testimony from a tenant who explained that because of the lien, he "did not want to get involved");

Atkinson v. Fundaro , 400 So.2d 1324, 1326 (Fla. 4th DCA 1981) (plaintiffs presented evidence showing that they encountered difficulties in obtaining favorable institutional financing due to the filing of a lis pendens). For example, in IberiaBank , the plaintiff sued for slander of title after a claim of lien was filed against its property. 984 F.Supp.2d at 1303. The plaintiff argued that the claim of lien disparaged its title "because a lien is an encumbrance making the property unmarketable and reducing its value." Id. Notwithstanding the unmarketability argument, the court determined that under Florida law the plaintiff failed to establish the material and substantial part element because "there was no evidence presented that there were others who did not deal with [the plaintiff]" or that the plaintiff "had a contract to sell the property or parts of the property [or] attempted to transfer the property." Id. at 1305.

In the present case, aside from generally testifying that he was unable to sell the condo, Son presented no specific evidence showing how the notice of interest played a material and substantial part in inducing others not to deal with him. In fact, the trial court acknowledged in one of its post-trial orders that "there was no evidence that [Son] was unable to complete a sale because of the cloud on his title." In other words, the court clearly found that Son failed to establish that the claim of interest played any part, let alone a material and substantial part, in inducing others not to deal with him. Despite the lack of evidence, and for no apparent reason, the court ruled in favor of Son.

Accordingly, we reverse the court's judgment holding Father liable for slander of title.

Prejudgment Interest

We next consider the court's prejudgment interest award on Father's money lent claim. In Florida, an award of prejudgment interest "is merely another element of pecuniary damages." Argonaut Ins. Co. v. May Plumbing Co. , 474 So.2d 212, 214 (Fla. 1985). Accordingly, "when a verdict liquidates damages on a plaintiff's out-of-pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest ... from the date of that loss." Id. at 215. For actions sounding in contract, prejudgment interest is allowed "from the date the debt is due." Lumbermens Mut. Cas. Co. v. Percefull , 653 So.2d 389, 390 (Fla. 1995).

With respect to the interest rate, section 687.01, Florida Statutes (2016) provides that "[i]n all cases where interest shall accrue without a special contract for the rate thereof, the rate is the rate provided for in s. 55.03." However, in order for a contract rate to apply in lieu of the statutory rate, the contract must actually provide for a specific post-maturity/default interest rate. See Olson v. Hirschberg , 145 So.2d 303, 305 (Fla. 1st DCA 1962) (holding that the applicable statutory rate applied because "the note contain[ed] no express provision as to the rate of interest after the maturity date"); see also Celotex Corp. v. Buildex, Inc. , 476 So.2d 294, 296 (Fla. 3d DCA 1985).

In the present case, the evidence at trial established that Father lent Son money to purchase the condo on April 23, 2010. The evidence further established that the parties agreed that the loan would be repaid in three years from the date of closing. Accordingly, the date of loss was the date the money was due and not the closing date as found by the court. Therefore, the court should have only awarded prejudgment interest from April 24, 2013 (date of loss) through December 21, 2016 (date the final judgment was entered).

Turning to the applicable interest rate, the court utilized the 8% interest rate provided for in the Agreement rather than the applicable statutory rate. This was error. While the Agreement did provide that "[t]he loan was due and payable in 3 years with an accrued 8% annual interest," the document is entirely silent as to what interest rate applies after maturity or in the event of default. Accordingly, the 8% interest rate is not applicable to the court's prejudgment interest award. Rather, the statutory interest rate in effect as of the date of loss (April 23, 2013) governs. See Genser v. Reef Condo. Ass'n , 100 So.3d 760, 762 (Fla. 4th DCA 2012). It appears that in applying the 8% interest rate provided for in the Agreement, the trial court was attempting to award Father additional damages for Son's failure to make the interest payments during the life of the loan. While the court could have awarded the accrued interest as additional direct damages, awarding such damages under the guise of prejudgment interest was incorrect.

Based upon the foregoing, we reverse the prejudgment interest award entered in Father's money lent claim and remand for recalculation of the prejudgment interest consistent with this opinion.

Reversed and remanded.

Taylor and May, JJ., concur.


text:
    Jordan FUSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-327
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Patrick J. Curry, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The defendant appeals his sentence of 14.625 years, arguing that the trial court erred by denying his motion for downward departure under section 921.0026(2)(j), Florida Statutes (2014), and specifically challenging the trial court's finding that, by a preponderance of the evidence, the incident was not isolated.

"Whether an incident is isolated is an issue of fact to be determined by the trial court and will not be reversed if there is competent substantial evidence to support it." State v. Fontaine , 955 So.2d 1248, 1251 (Fla. 4th DCA 2007) (Warner, J., concurring). Based on the record before us and the arguments made on appeal, we conclude that the trial court's finding was supported by competent substantial evidence and we affirm.

Affirmed.

Warner, Ciklin and Klingensmith, JJ., concur.


text:
    Timothy BACON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3522
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2018]
    Timothy Bacon, South Bay, pro se.
    No response required for appellee.
   Per Curiam.

We affirm the denial of appellant's Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence without comment. Any argument regarding appellant's motion for return of property should be raised in case number 4D17-2590.

Affirmed.

Damoorgian, Taylor and Forst, JJ., concur.


text:
    Carlos Alverto HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1685
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2018]
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The State concedes error as to the sentencing issues that arose in this case. As to the reckless driving conviction in count three, this cause is remanded to the trial court to correct the written sentence to accurately reflect the oral pronouncement of sentence by the trial court. The convictions for counts four and five are vacated.

All other issues are affirmed.

Affirmed in part and reversed and remanded in part .

Ciklin, Conner, JJ., and Roberts, Kathleen, Associate Judge, concur.


text:
    Nelson FUNDORA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1230
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See State v. Hawkins , 790 So.2d 492, 495 (Fla. 5th DCA 2001) (affirming robbery conviction, court noted that defendant's act of driving a "truck, while [victim] was hanging onto the side resisting the theft, was an act of force intended, in part, to overcome resistance to the taking."); Lovett v. State , 781 So.2d 466 (Fla. 5th DCA 2001) (finding sufficient "violence" to affirm carjacking conviction where victim jumped on car's hood and defendant accelerated car while victim was on hood).

Gross, Taylor and Kuntz, JJ., concur.


text:
    Jonathan E. HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3209
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2018]
    Jonathan E. Hughes, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm without comment the denial of appellant's Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. However, we reverse the order barring appellant from filing any further pro se pleadings. We find that the trial court abused its discretion in failing to give appellant a reasonable opportunity to respond to its order to show cause. See State v. Spencer , 751 So.2d 47, 48 (Fla. 1999) ; Davis v. State , 198 So.3d 995, 997 (Fla. 4th DCA 2016). The court entered the final order before appellant's time to file a response had run and did not consider appellant's timely-filed motion for an extension of time. On remand, the trial court is instructed to consider and rule on appellant's motion for an extension of time to file a response to the order to show cause.

Affirmed in part; reversed and remanded in part.

Damoorgian, Klingensmith and Kuntz, JJ., concur.


author: Warner, J.

text:
    TRANSPARENCY FOR FLORIDA, Kali Crum and Nicholas Plummer, Appellants, v. CITY OF PORT ST. LUCIE, Ron Bowen, Joann Faiella, Shannon Martin and Roger Orr, Appellees.
    No. 4D16-3976
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2018]
    Megan Lazenby of Lazenby Law LLC, Lakeland, James S. Benjamin of Benjamin, Aaronson, Edinger & Patanzo, P.A., Fort Lauderdale, and Andrea Flynn Mogensen of The Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for appellants.
    Jeffrey A. Blaker of Conroy Simberg, West Palm Beach, and Diane H. Tutt of Conroy Simberg, Hollywood, for appellees City of Port St. Lucie, Ron Bowen, Shannon Martin and Roger Orr.
    Cynthia G. Angelos of Cynthia G. Angelos, P.A., Port St. Lucie for appellee Joann Faiella.
    David A. Wallace of Bentley & Bruning, P.A., Sarasota, for Amicus Curiae First Amendment Foundation.
   Warner, J.

Transparency for Florida, Inc., appeals a final summary judgment in favor of the City of Port St. Lucie, its council members, and city attorney in a Sunshine Law violation case regarding the termination of the city manager. The trial court did not conclude that a Sunshine Law violation had occurred, but determined that even if it did, any violation was cured by a noticed special meeting of the council. We reverse, as disputed issues of fact remain.

Appellant, Transparency for Florida, Inc., sued the City of Port St. Lucie, city council members (Ron Bowen, Shannon Martin), the mayor (Joann Faiella), and city attorney (Roger Orr) alleging that the council members violated the Sunshine Law in their discussions regarding the dismissal of the City Manager, Greg Oravec, and the negotiation of his severance agreement. It alleged that the city attorney improperly polled council members to determine their position on Oravec's separation agreement, and the city attorney communicated the polling results to other council members. After polling, the council held a special meeting to vote on the agreement, and the defendants provided the public with about twenty-one and one-half hours' notice. Transparency contended the notice was inadequate, and the subsequent meeting did not cure the violation. It sought a declaration that the Sunshine Law had been violated and the cure was inadequate. The defendants answered, contending that no Sunshine Violation had occurred, but if there was a violation, it was cured by the public meeting.

The defendants moved for summary judgment, attaching depositions and exhibits. The submissions showed that Port St. Lucie Councilman Bowen had significant disputes with City Manager Oravec, which ultimately culminated in Bowen's attempts to remove the city manager. To that end, in December 2012, an assistant city attorney told Oravec that the mayor asked to pull his employment contract and explore the severance provision because four out of five council members had lost confidence in him. Oravec wondered how this no confidence vote occurred outside of Sunshine. He questioned the mayor on this, and the mayor relayed that the council was unhappy with him. When questioned how she knew this without a meeting, the mayor became defensive.

On Super Bowl weekend in the beginning of February 2013, Bowen called City Attorney Orr, and asked Orr to determine whether there was interest in the council considering terminating Oravec. Bowen also spoke to the mayor that morning. Orr agreed to poll the council to determine whether there was any interest in offering Oravec a severance in exchange for his resignation. When Orr called Council Member Martin and asked her about her interest, she told him that she could not discuss this. Similarly, Council Member Berger told Orr that she would not participate in any polling, because a possible termination and severance should be discussed in the Sunshine. Orr called Bowen to report back his finding that there was not support to terminate Oravec. Orr had also called Oravec to suggest his resignation with a severance package, but Oravec turned him down.

After that weekend, Oravec had a change of heart and determined that he would negotiate an amicable separation agreement with the city because his relationship with the council was "irretrievably altered." Orr and Oravec then negotiated the terms of the separation agreement. When they got close, the council scheduled a special meeting to consider Oravec's departure.

There were three notices of the special meeting to consider Oravec's separation from the city. The first notice, with a hand-written "posted" date of February 06, 2013, states that there will be a special meeting for the removal of the city manager on February 07, 2013, at 9 a.m. at City Hall. This notice was posted twenty-one hours, twenty-seven minutes before the meeting. This notice was sent to the media. The second, revised notice lists the "discussion of a separation agreement for the city manager" on its agenda. This notice was posted to the city's public calendar on February 6 at 1:19 p.m. The notice also lists discussion of the "cancellation of the city manager's employment agreement" as an agenda item, only to be discussed if the separation agreement was not approved. The third notice lists the same date and time for the meeting, but it only lists discussion of a separation agreement.

The city attorney and his staff then worked on the separation agreement until late the night before the meeting. The assistant city attorney testified in deposition that she may have had conversations about the city manager's resignation with the individual council members. Prior to the meeting, the council members were e-mailed one version of the agreement. Then more changes were made, and on the morning before the special meeting, the assistant city attorney explained to the council members the changes and received comments from them. At least two council members expressed the desire to have no debate or discussion of the termination at the meeting because of an unpleasant experience with a prior termination of a city manager. They told the city attorney that they did not want to go "item by item to say we don't want you here because of A, B, C and for him to respond that's not true because of X, Y, and Z."

The meeting commenced at 9 a.m. A video of the meeting shows that many people attended, although nothing in the record indicates whether those attending were members of the public, city staff, or the media. The meeting was almost immediately recessed because the city attorney announced that more changes needed to be made to the separation agreement, because additional matters came up which needed to be dealt with. After about an hour, the meeting resumed at which time there was no discussion of the terms of the finalized agreement. A motion was made to approve the separation agreement. The council members had copies of the agreement. Although the previous drafts of the agreement were available in the city records, there is no indication that a copy of the final agreement was made available to the public. Several of the council members made statements of regret to the termination, stating that they all had great respect for Oravec. Some mention was made of failure to communicate and failure to agree on several matters, but the council never discussed any specific issues. Mayor Faiella stated that Oravec had made tremendous progress in bringing the city to a new level. Neither the terms of the severance agreement or the reasons for termination were discussed. The meeting lasted less than fifteen minutes.

After accusations of Sunshine Law violations by the council members appeared in the newspaper, the State Attorney's Office (SAO) investigated the matter. During the course of the investigation, the SAO subpoenaed phone records from the city council members' city-issued phones. Some of the council members deleted text messages and voicemails on their phones from the time period about which the subpoenas inquired. As a result of the investigation, Councilman Bowen pled nolo contendere to the noncriminal infraction of violating the Sunshine Law.

The trial court granted the defendants' motion for summary judgment, based upon the materials submitted. In its order, the court stated that it was "not convinced that [the discussions regarding the termination of Oravec and the severance agreement] were purposeful contraventions of the Sunshine law," but concluded that any violations were cured by the well-attended special meeting. The court found that the matter of the city manager's employment and potential severance was discussed "at length." The court rejected Transparency's contention that the meeting could not cure a prior Sunshine Law violation unless the prior violation was specifically addressed. It believed that any violation could be "cured where the substantive subject matter is addressed via formal, independent, public action." As the court found that was what occurred at the February 7th meeting, the court concluded that any violation was cured. The court also rejected Transparency's contention that the notice was insufficient because it gave less than twenty-four hours' notice. While the statute requires reasonable notice of a meeting, the statute does not further define what that may be. From these rulings, Transparency appeals.

This Court reviews a trial court's grant of summary judgment de novo. Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., Inc. , 981 So.2d 654, 655 (Fla. 4th DCA 2008).

[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystalized that nothing remains but questions of law.

Id. (citing Craven v. TRG-Boynton Beach, Ltd. , 925 So.2d 476, 479-80 (Fla. 4th DCA 2006) ). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000).

Article I, section 24(b), of the Florida Constitution provides:

All meetings of any collegial public body of the executive branch of state government ... at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public ....

The Sunshine Law, section 286.011(1), Florida Statutes (2012), states:

All meetings of any board or commission of any state agency or authority ... at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

The law aims to prevent "[t]he evil of closed door operation of government without permitting public scrutiny and participation," and if any two or more public officials meet in secret to transact public business, they violate the Sunshine Law. City of Miami Beach v. Berns , 245 So.2d 38, 41 (Fla. 1971). A Sunshine Law violation occurs when officials "discuss matters on which foreseeable action may be taken by that board or commission in clear violation of the purpose, intent, and spirit of the ... Sunshine Law." Hough v. Stembridge , 278 So.2d 288, 289 (Fla. 3d DCA 1973).

The Sunshine Law must be "construed so as to frustrate all evasive devices," and the law "protect[s] the public from 'closed door' politics ...." Sarasota for Responsible Gov't v. City of Sarasota , 48 So.3d 755, 762 (Fla. 2010) (citations omitted). The "frustration of all evasive devices"

can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a government agency, and relates to any matter on which foreseeable action will be taken.

Town of Palm Beach v. Gradison , 296 So.2d 473, 477 (Fla. 1974).

Because the law must be construed to "frustrate all evasive devices,"

the Sunshine Law is implicated when a person other than a board member is used as a liaison among board members. For example, a city manager may not ask each commissioner to state his or her position on a specific matter that will foreseeably be considered by the commission at a public meeting, in order to provide the information to the members of the commission.

Op. Att'y Gen. Fla. 96-35 (1996). For instance, in response to an inquiry, the Attorney General issued an opinion that a city manager can meet individually with city council members "to discuss city business provided that he does not act as a "liaison" for board members by circulating information and thoughts of individual councilmen to the rest of the board." Op. Att'y Gen. 75-59 (1975).

Blackford v. Sch. Bd. of Orange County , 375 So.2d 578 (Fla 5th DCA 1979), presents a similar factual circumstance to this case where the series of phone conversations between the city attorney and the council members could constitute "de facto" meetings on the severance agreement. In Blackford , the school board superintendent "admitted that he wanted to avoid the uproar which would unquestionably attend the public airing" of the county's redistricting problem. Id. at 579. The superintendent, not subject to the Sunshine Law, devised a plan by which the school board members would visit his office, separately but in "rapid-fire succession" over a period of a few days, to discuss the county's redistricting problem. Id. at 580. The superintendent denied acting as a "go-between" or telling the school board members each other's opinions. Id. After the meetings, final proposed resolutions of the redistricting plan were made, and the resolutions were placed on the board's agenda. Id. The court found that the six separate meetings were "de facto meetings by two or more members of the board at which official action was taken." Id. The board used the superintendent as an intermediary to circumvent the public meeting requirements. Id. at 580-81.

In this case, while the city claims that all Orr did as city attorney was to poll the members as to whether they wanted to discuss the severance of Oravec, appellant contends that Orr acted as a liaison for council members to share their thoughts. The evidence presented does not conclusively refute those allegations. Indeed, much of it suggests that the details of the severance were discussed both in the phone calls during Super Bowl weekend of 2013, and leading up to the meeting at which the severance agreement was approved. The trial court correctly concluded that it could not definitively find that no Sunshine Law violation occurred.

Instead, the court determined that any violation was cured by the special meeting. Our supreme court has held that "Sunshine Law violations can be cured by 'independent, final action in the sunshine,' which [the supreme court] distinguished from mere ceremonial acceptance or perfunctory ratification of secret actions and decisions." Sarasota Citizens for Responsible Gov't v. City of Sarasota , 48 So.3d 755, 765 (Fla. 2010) (quoting Tolar v. School Bd. of Liberty Cty. , 398 So.2d 427, 429 (Fla. 1981) ). In Zorc v. City of Vero Beach , 722 So.2d 891, 903 (Fla. 4th DCA 1998), we explained "only a full , open hearing will cure a defect arising from a Sunshine Law violation. Such violation will not be cured by a perfunctory ratification of the action taken outside of the sunshine." The council members in Zorc had taken action at a private meeting, and when suit was filed for violation of the Sunshine Law, the council scheduled a meeting to reconsider their vote. Id. at 895, 903. At the subsequent meeting, the city attorney gave each council member a transcript of the prior meeting, but he said he would not review it at the open meeting. Id. at 903. The public was given an opportunity to speak, and the plaintiff, Zorc, spoke. Id. The council then voted to ratify the actions taken at the prior meeting. Finding that the subsequent meeting was insufficient to cure the Sunshine Law violation, our court said:

It is evident from the record that the meeting was not a full reexamination of the issues, but rather, was merely the perfunctory acceptance of the City's prior decision. This was not a full, open public hearing convened for the purpose of enabling the public to express its views and participate in the decision-making process. Instead, this was merely a Council meeting which was then opened to the public for comment at the City's request. There was no significant discussion of the issues or a discourse as to the language sought to be included. The City Councilmen were provided with transcripts of the hearings, but none reviewed the language previously approved, and the Council subsequently voted to deny reconsideration of the wording. Under Tolar and its progeny, it is clear that the City did not effectively cure its violation of the Sunshine Law emanating from the [prior] meeting.

Id. at 903-04. The court reversed a summary judgment in favor of the city.

The parties in this case stipulated that the tape of the council meeting, at which the separation agreement was discussed, is part of the summary judgment proceedings. It is clear that the trial court considered the video and the minutes of the meeting. We have been able to view it. We have an entirely different impression of the proceedings than the trial court's finding in its summary judgment that the city manager's employment and termination was discussed at length. The separation agreement was not discussed at all at the meeting. When the meeting was called to order, the city attorney asked for a recess to complete some changes to the agreement. Convening again an hour later, the council members each had a copy of the agreement. The mayor asked for a motion to approve, and several of the commissioners made statements of regret as to how they had come to parting ways with the city manager. No one mentioned the terms of the agreement, nor did they discuss at length the reasons for the termination. It was then unanimously accepted. The public was never invited to speak at the meeting. The entire proceeding lasted less than fifteen minutes. This meeting may be more perfunctory in approving the agreement than the meeting in Zorc . As we review this record de novo, we conclude that there are disputed issues of fact as to whether the meeting on the separation agreement cured any Sunshine Law violation which may have occurred prior to the meeting in the formation of the separation agreement and termination of the city manager.

Finally, appellants argue that less than twenty-four hours' notice for the meeting was unreasonable in the absence of a demonstrated urgency, and only twenty-one hours and twenty-seven minutes' notice was given. The city and mayor contend there is no bright-line rule for reasonable notice, and the notice was sufficient.

Section 286.011(1), Florida Statutes (2012), provides that "[t]he board or commission must provide reasonable notice of all such meetings." Several Florida Attorney General opinions have interpreted what constitutes sufficient notice under the statute. A 2000 Florida Attorney General opinion notes that "reasonable notice" has not been statutorily defined, and the type of notice that must be given for a meeting is variable and depends on the facts of the situation. Op. Att'y Gen. Fla. 2000-08 (2000). However, in a footnote, the opinion states that "special meetings should have at least 24 hours reasonable notice to the public ...." Id. No citation of governing authority is referenced, however.

The Attorney General also publishes the Government-In-The-Sunshine Manual, Volume 39 (2017 Ed.), for use by public officials in navigating issues regarding the Sunshine Law. It provides suggested notice guidelines, such as:

3. Except in the case of emergency or special meetings, notice should be provided at least 7 days prior to the meeting. Emergency sessions should be afforded the most appropriate and effective notice under the circumstances.
4. Special meetings should have no less than 24 and preferably at least 72 hours reasonable notice to the public.

39 Government-in-the-Sunshine Manual, section (D)(4)(a)3., 4. (2017).

Few cases address the question of what is reasonable notice. In Yarbrough v. Young , 462 So.2d 515 (Fla. 1st DCA 1985), three days' notice of a special meeting was deemed adequate. In Rhea v. City of Gainesville , 574 So.2d 221, 221 (Fla. 1st DCA 1991), an hour and a half notice of a special meeting to respond to the county's appointment of a commission to study the operation of the regional utility authority was deemed unreasonable notice under the Sunshine Law. Florida Attorney General opinion 73-170 finds that the type of notice given depends on the purpose for the notice, the character of the event about which the notice is given, and the nature of the rights to be affected. Op. Att'y Gen. Fla. 73-170 (1973).

Where there is no specific legislative directive as to what constitutes reasonable notice as a matter of law, we agree with the Attorney General that it is a fact specific inquiry. In this case, the trial court properly found that no bright-line rule mandated a twenty-four hour notice period. However, it then required the plaintiff to allege and prove that some member of the public was not afforded an opportunity to attend the meeting because notice was not adequate. This is not an element of a cause of action for a Sunshine Law violation. The plaintiff alleged that less than twenty-four hours' notice of the meeting was provided, which was not reasonable.

Because this was a motion for summary judgment, it was the defendants' burden to show that there were no disputed issues of fact as to the reasonableness of the notice of the meeting. This required an analysis as to whether the facts were undisputed that notice was reasonable. The court found that the notice was sufficient because the meeting room was packed and the media was present. It relied on the videotape of the meeting, but it is hard to know whether the meeting was packed with the general public or merely the city staff. Moreover, while three different and successive copies of the notice are in the record, it is not clear how they were disseminated. There is also no explanation of whether this was an emergency situation with some time deadline to approve the separation agreement. There remains a disputed issue of fact as to whether the notice for this meeting was reasonable. Without further development of the facts, summary judgment on this issue was premature.

For the foregoing reasons, we reverse the summary final judgment and remand for further proceedings consistent with this opinion.

Taylor and Damoorgian, JJ., concur.